Order to scrap J&K’s special status Constitutionally valid: SC

The Asian Age.  | Rakesh K. Singh

India, All India

Calls for restoration of statehood; polls by September ’24

The Supreme Court also directed the Election Commission of India to hold the Assembly polls in Jammu and Kashmir by September 30 next year. (AP)

NEW DELHI: In a historic decision, the Supreme Court upheld the abrogation of Article 370, which had accorded special status to Jammu and Kashmir. The decision comes as a big win for the Modi government. The ruling was delivered by a five-judge Constitution bench of the Supreme Court led by Chief Justice of India D.Y. Chandrachud on Monday. While the Prime Minister Narendra Modi, Union home minister Amit Shah and the BJP welcomed the ruling, Opposition leaders Omar Abdullah, Mehbooba Mufti expressed their disappointment.

Quoting poet, Faiz Ahmed Faiz, National Conference leader Abdullah said, “Dil na ummeed toh nahi, nakaam hi toh hain, lambi hain gam ki shaam, magar shaam hi toh hain (my heart feels helpless but, it’s not the endow the road, the evening of the sorrow is long, but it’s only an evening).” Reacting sharply, Ms Mufti, however, described the ruling as “nothing less than a death sentence”.

Validating the carving out of the Union territory of Ladakh from the erstwhile state, the bench directed the Centre to restore statehood to the Union territory of Jammu and Kashmir “at the earliest”. The Supreme Court also directed the Election Commission of India to hold the Assembly polls in Jammu and Kashmir by September 30 next year.

Bringing a closure to a decades-long vexation, the bench delivered three concurring judgments upholding the abrogation of the constitutional schemes that provided special status to J&K following its annexation to the Union of India in 1947.

In his ruling, the CJI said Article 370 was a temporary provision and the President was empowered to revoke it without the concurrence of the Constituent Assembly of the erstwhile state. Justices Sanjay Kishan Kaul and Sanjiv Khanna authored separate but concurring verdicts on the issue.

Referring to  solicitor-general Tushar Mehta’s statement that statehood to J&K will be restored minus the carved out Union territory of Ladakh, Justice Chandrachud said, “In view of the statement we do not find it necessary to determine whether the reorganisation of the state of Jammu and Kashmir into two Union territories of Ladakh and Jammu and Kashmir is permissible under Article 3. However, we uphold the validity of the decision to carve out the Union territory of Ladakh in view of Article 3(a) read with explanation I which permits forming a Union territory by separation of a territory from any state.”

Noting that the Constitution of India was a complete code for constitutional governance, the CJI in his verdict said, “The President had the power to issue a notification declaring that Article 370(3) ceases to operate without the recommendation of the Constituent Assembly. The continuous exercise of power under Article 370(1) by the President indicates that the gradual process of constitutional integration was ongoing.”

“We direct that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by September 30, 2024. Restoration of statehood shall take place at the earliest and as soon as possible,” the CJI said.

Justice Chandrachud also underlined in his verdict that the erstwhile state of Jammu and Kashmir does not retain any “element of sovereignty” after the execution of the Instrument of Accession and the issuance of the proclamation dated November 25, 1949 by which the Constitution of India was adopted.

"Article 370 was a feature of asymmetric federalism and not sovereignty,” the CJI said, adding, the exercise of power by the President under Article 370(1) (d) to issue CO 272 (by which Indian Constitution was put into effect in J&K) was not mala fide.

“We have held that a textual reading of Article 370 also indicates that it is a temporary provision. For this purpose, we have referred to the placement of the provision in Part XXI of the Constitution which deals with temporary and transitional provisions, the marginal note of the provision which states “temporary provisions with respect to the State of Jammu and Kashmir”, and reading of Articles 370 and 1 by which the State became an integral part of India upon the adoption of the Constitution,” the CJI said while addressing the issue whether Article 370 is a temporary provision.

“The President in exercise of power under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist,” the CJI said.

“The President did not have to secure the concurrence of the government of the state or Union government acting on behalf of the state government under the second proviso to Article 370(1) (d) while applying all the provisions of the Constitution to Jammu and Kashmir because such an exercise of power has the same effect as an exercise of power under Article 370 (3) for which the concurrence or collaboration with the state government was not required,” Justice Chandrachud said.

Pointing out in the verdict that the petitioners did not challenge the issuance of the proclamations under Section 92 of the Jammu and Kashmir Constitution and Article 356 of the Indian Constitution until the special status of Jammu and Kashmir was abrogated, the CJI said, “The challenge to the proclamations does not merit adjudication because the principal challenge is to the actions which were taken after the Proclamation was issued.”

“The exercise of power by the President after the Proclamation under Article 356 is issued is subject to judicial review. The exercise of power by the President must have a reasonable nexus with the object of the proclamation,” the CJI said.    

Those challenging the exercise of power must prima facie establish that it was a mala fide or extraneous exercise of power, he said.

“Once a prima facie case is made, the onus shifts to the Union to justify the exercise of such power,” the CJI added.

Concurring with the CJI, Justice Kaul in his verdict, said the purpose of Article 370 was to slowly bring Jammu and Kashmir at par with other Indian states.
Justice Kaul also directed the setting up of an “impartial truth-and-reconciliation commission” to probe human rights violations, both by state and non-state actors, at least since 1980.        

In a separate verdict, Justice Khanna concurred with the CJI and Justice Kaul and gave his own reasons to validate the repeal of Article 370.  

The bench concluded that J&K did not retain any element of sovereignty or internal sovereignty when it joined the Union of India, saying, “We have arrived at this conclusion for the following reasons: a. Paragraph 8 of the Instrument of Accession executed by Maharaja Hari Singh provided that nothing in the Instrument would affect the continuance of the sovereignty of the Maharaja in and over the state; b. On 25 November 1949, a proclamation was issued for the State of Jammu and Kashmir by Yuvraj Karan Singh. The declaration in this Proclamation that the Constitution of India would not only supersede all other constitutional provisions in the state which were inconsistent with it but also abrogate them what would have been attained by an agreement of merger.”

The CJI said the proclamation reflects the full and final surrender of sovereignty by J&K, through its sovereign ruler, to India — to her people who are sovereign. “Neither the constitutional setup nor any other factors indicate that the state of Jammu and Kashmir retained an element of sovereignty. The Constitution of Jammu and Kashmir was only to further define the relationship between the Union of India and the state of Jammu and Kashmir. The relationship was already defined by the Instrument of Accession, the proclamation issued by Yuvraj Karan Singh in November 1949 and more importantly, by the Constitution of India.”

The CJI further said there is a clear absence in the Constitution of Jammu and Kashmir of a reference to sovereignty. In contrast, the Constitution of India emphasises in its Preamble that the people of India resolved to constitute India into a sovereign, socialistic, secular, democratic, republic.

Justice Chandrachud also said that the state of Jammu and Kashmir became an integral part of the Union of India is evident from Articles 1 and 370 of the Indian Constitution. It is reiterated in Section 3 of the Constitution of Jammu and Kashmir, which is unamendable.

The Preamble of the Constitution of Jammu and Kashmir, Sections 3, 5 and 147 of the State Constitution, coupled with Article 1 of the Constitution of India read with the First Schedule as well as Article 370 indicate in no uncertain terms that a system of subordination (as understood by the definition of sovereignty) exists by which the State is subordinate to the Indian Constitution first and only then to its own Constitution, the CJI added.