Article 370 A Temporary Provision : Supreme Court Upholds Abrogation of Special Status of Jammu and Kashmir

The Supreme Court on December 11 upheld the validity of the Union Government's 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution. The Court held that the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian Constitution to the State of J&K. It was held that Article 370 was a temporary provision.

In view of the submission of the Solicitor General that the Union will restore the statehood of J&K as soon as possible, the Court did not adjudicate upon the validity of the reorganisation of J&K into Union Territory (UT). However, the carving out of Ladakh as UT was upheld. 

The Court also issued a direction to the Election Commission of India to take steps to hold elections to the J&K Legislative Assembly by September 30, 2024.

Although the Court held as invalid the Constitutional Order 272 to the extent it changed the meaning of 'J&K Constituent Assembly' as 'J&K Legislative Assembly' and 'J&K Government' as 'Governor', this conclusion did not affect the outcome of the judgment since the Court held that the recommendation of J&K Constituent Assembly was not necessary for the President to declare Article 370 as inoperative.

The Constitution bench of the Supreme Court, led by Chief Justice of India DY Chandrachud and composed of Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, pronounced the judgement. The Apex Court had reserved the judgement in the matter on 5 September 2023 after hearing it for sixteen long days. 

There were three judgements in the matter- one by CJI DY Chandrachud for himself and for Justices Gavai and Surya Kant. The second was a concurring opinion authored by Justice SK Kaul. Justice Sanjiv Khanna concurred with both the judgements. 

In his judgement, Justice SK Kaul recommended the setting up of an impartial "Truth and Reconciliation Committee" to investigate and report on the violations of human rights both by the State and non-state actors at least since 1980s and recommend measures for reconciliation. He added that the exercise of the committee shall be carried out in a time-bound manner. However, considering the sensitivities of the matter, he held that it was for the government to decide the manner in which the Truth and Reconciliation Commission must be set up.

Issues Framed By The Court

1. Whether the provisions of Article 370 were temporary in nature or whether they acquired a status of permanence in the Constitution;

2. Whether the amendment to Article 367 in exercise of the power under Article 370(1)(d) so as to substitute the reference to the “Constituent Assembly of the State referred to in clause (3) of Article 370 by the words “Legislative Assembly of the State” is constitutionally valid;

3. Whether the entire Constitution of India could have been applied to the State of Jammu and Kashmir in exercise of the power under Article 370(1)(d);

4. Whether the abrogation of Article 370 by the President in exercise of the power under Article 370(3) is constitutionally invalid in the absence of a recommendation of the Constituent Assembly of the State of Jammu and Kashmir as mandated by the proviso to clause (3);

5. Whether the proclamation of the Governor dated 20 June 2018 in exercise of power conferred by Section 92 of the Constitution of Jammu and Kashmir and the subsequent exercise of power on 21 November 2018, under Section 53(2) of the Constitution of Jammu and Kashmir to dissolve the Legislative Assembly are constitutionally valid;

6. Whether the Proclamation which was issued by the President under Article 356 of the Constitution on 19 December 2018 and the subsequent extensions are constitutionally valid;

7. Whether the Jammu and Kashmir Reorganisation Act 2019 by which the State of Jammu and Kashmir was bifurcated into two Union Territories (Union Territory of Jammu and Kashmir and Union Territory of Ladakh) is constitutionally valid

8. Whether during the tenure of a Proclamation under Article 356, and when the Legislative Assembly of the State is either dissolved or is in suspended animation the status of the State of Jammu and Kashmir as a State under Article 1(3)(a) of the Constitution and its conversion into a Union Territory under Article 1(3)(b) constitutes a valid exercise of power.

Conclusions Reached By Court

1. Court Need Not Adjudicate On Validity Of President's Rule

The court held that it need not adjudicate on the validity of the presidential proclamations announcing President's Rule in the State since petitioners did not challenge the same. In any case, the court found that no material relief could be given as the President's Rule was withdrawn in October 2019.

2. Every Decision Of Union When State Is Under President's Rule Cannot Be Challenged

The court held that there are limitations on power of the Union and States when proclamation of presidential rule was in force. It stated that the scope of the power of Union depends on the circumstances. The court added that the exercise of power under Article 356 must have a reasonable nexus with the object of the proclamation. Further, the court stated that there were innumerable decisions taken by Union on behalf of States. Thus, it added, "Every decision taken by Union on behalf of State during Presidential rule not open to challenge...this will lead to the administration of state to a standstill..."

The court rejected the argument of petitioners that Union cannot take actions of irreversible consequences in the State during Presidential rule. Further, the argument of the petitioners that the Parliament can only make the law-making powers of the State when the Presidential rule was in force was also not accepted. However, the court held that the exercise of Presidents' power after the proclamation are subject to judicial review. It was held that the power of Parliament under Article 356(1) to exercise powers on behalf of State assembly was not restricted to law making powers.

3. Jammu and Kashmir Did Not Retain An Element Of Sovereignty When It Joined the Union of India

The court stated that the Proclamation of Maharaja stated that the Constitution of India will supersede. With this, the court added that the paragraph of Instrument of Accession ceased to exist. The court stated that the constitutional set up did not indicate that Jammu and Kashmir retained sovereignty. The CJI, in his judgement, stated that there was a clear absence in the Constitution of Jammu and Kashmir to the reference of sovereignty and that the State of Jammu and Kashmir became an integral part of India is evident from Articles 1 and 370 of the Constitution of India. The CJI stated– "All States in the country have legislative and executive power, albeit to differing degrees. Article 371A to 371J are examples of special arrangements for different states. This is an example of asymmetric federalism." It added that Article 370 was a feature of asymmetric federalism and not sovereignty.

4. Article 370 Is A Temporary Provision

The CJI, in his judgement stated that Article 370 was held to be a temporary provision on a historical reading, as per which it was a transitory and temporary provision. The court added that the power of the President under Article 370(3) to issue a notification that Article 370 ceases to exist subsists even after the dissolution of the J&K Constituent Assembly. As per the judgement, the recommendation of the J&K Constituent Assembly was not binding on the President. It stated that the J&K Constituent Assembly was intended to be a temporary body. When the constituent assembly ceased to exist, the special condition for which 370 was introduced ceased to exist but the situation in the state remained and thus the article continued. The court found that holding that the power under Article 370(3) ceases to exist after the dissolution of the J&K Constituent Assembly would lead to the freezing of the process of integration. The court held that the power under Article 370(3) did not cease after the J&K Constituent Assembly ceased to exist.

5. Concurrence of State Government Not Required To Apply All Provisions Of Constitution of India To J&K By Article 370(1)(d)

The CJI stated– "This court cannot sit in appeal over the decision of the President of India on whether the special circumstances under Article 370 exist...History shows gradual process of constitutional integration was not going on...It was not as if after 70 years Constitution of India was applied in one go. It was a culmination of the integration process." Accordingly, it was held that all provisions of the Constitution of India could be applied to J&K using Article 370(1)(d) in one go.

In furtherance of the same, it was held that the exercise of Presidential Power was valid. The court held that principle of consultation and collaboration was not required to be followed for the exercise of Presidential power and the concurrence of the State government was not required to apply all provisions of the Constitution using Article 370(1)(d). Thus, the President taking the concurrence of the Union Government was not mala fide. The court held that the views of the State legislature under Article 3 proviso were recommendatory.

Justice SK Kaul, in his judgement, stated – "Purpose of Article 370 was to slowly bring Jammu and Kashmir on par with the other States of India. Requirement of recommendation of J&K Constituent Assembly cannot be read in a manner making the larger intention redundant."

6. CO 272 To The Extent Of Modifying Article 367 Is Ultra Vires Article 370.

The majority judgement authored by the CJI stated that while the change sought to be made by CO 272 appeared to be to Article 367 at the first blush, it effectively changed Article 370. The court found these changes to be substantive. The court stated that the interpretation clause could not be modified to amend an Article bypassing the amendment process. "We have therefore held that the amendments made to Article 370 by taking recourse to Article 367 as ultra vires," stated the court while holding that the interpretative clause could not be used to bypass the specific route for a constitutional amendment. "Permitting such amendments by such a circuitous method would be disastrous," stated the court. The court stated that Article 370 could not be amended by exercise of power under Article 370(1)(d). Concurring with the view taken by the CJI in the matter, Justice SK Kaul in his judgement, stated– "Regarding the amendment of Article 370 using 367, I have said when a procedure is prescribed, it has to be followed. Amendment through the backdoor not permissible."

However, the finding of this issue did not materially affect the outcome, since the Court held that the recommendation of J&K Constituent Assembly was not required for the President to declare Article 370 as inoperative.

7. Validity of J&K Reorganisation Act 2019 Not Necessary To Be Adjudicated Upon, Reorganisation Of Ladakh Valid

The court noted that the SG had submitted that statehood of J&K would be restored and the status of UT was temporary for J&K. In view of the submission made by the SG, the court stated that it did find it necessary to determine whether the reorginazation of J&K into UT was valid. The reorganisation of Ladakh as Union Territory was upheld as Article 3 allowed a portion of State to be made as UT. The question whether Parliament can convert a State into a Union Territory was left open.

8. Statehood Of J&K To Be Restored At Earliest

The court directed that steps shall be taken by the Election Commission of India to conduct elections to the J&K assembly by September 30. Further, it stated that the restoration of statehood shall take place as soon as possible.

9. Constitution Of A Truth And Reconciliation Committee

Justice SK Kaul, in his judgment, stated that the first step towards healing the wounds was the acknowledgement of the acts of violations done by the State and its actors. He added that truth-telling paved a way for reconciliation. Accordingly, he recommended the setting up of an impartial "Truth and Reconciliation" committee to investigate and report on the violations of human rights both by the State and non-state actors at least since 1980s and recommend measures for reconciliation. "The Commission must be set up before memory escapes. The exercise must be time-bound", he stated while adding that there was an entire generation of youth that had grown up with a feeling of distrust and it was to them that liberation was owed. However, he added–

"It is for the government to decide the manner in which the Truth and Reconciliation Commission must be set up, considering the sensitivities of the issues involved."

He further stated–

"Truth and Reconciliation Commission could facilitate a reparative approach, that enables forgiveness for the wounds of the past and forms the basis of achieving a shared national identity."

Arguments Before The Court