A Constitution Bench of the Supreme Court on Monday unanimously upheld the power of the President to abrogate Article 370 in August 2019, leading to the reorganisation of the full-fledged State of Jammu and Kashmir to two Union Territories and denuding it of its special privileges.
The five-judge Bench headed by Chief Justice of India DY Chandrachud confirmed that the President could “unilaterally issue a notification that Article 370 ceases to exist”.
The court held that the President has power to abrogate Article 370 if “special circumstances warrant a special solution”. “The court cannot sit in appeal over the decision of the President on whether the special circumstances which led to the arrangement under Article 370 have ceased to exist,” the Chief Justice reasoned.
The court said the abrogation of Article 370 was the culmination of a “gradual and collaborative exercise” spread over the past 70 years between the Centre and the State to integrate Jammu and Kashmir with the Union. The objective of the integration process was to make the entirety of the rights and obligations enshrined in the Indian Constitution applicable to the people of Jammu and Kashmir. Justice Sanjay Kishan Kaul, in an epilogue, referred to witnessing the inter-generational trauma caused by violence and mass migration during his travels to Jammu and Kashmir. He proposed the setting up of a Truth and Reconciliation Committee to reach out to the people.
The court declared the Jammu and Kashmir Constitution “redundant” and “inoperative”. “The Constitution of India is a complete code for constitutional governance,” Chief Justice Chandrachud observed. The court accepted the assurance of the Centre to restore Statehood to the Union Territory of Jammu and Kashmir “at the earliest”. It directed the Election Commission of India to hold the Jammu and Kashmir Assembly elections by September 30, 2024.
The court found it unnecessary to examine whether the reorganisation of the State into the two Union Territories of Ladakh and Jammu and Kashmir had been even permissible. The Bench further upheld the carving out of the Union Territory of Ladakh from the State of Jammu and Kashmir.
The fact that the abrogation of Article 370 through an executive order by the President happened after the dissolution of the Jammu and Kashmir State Legislative Assembly by the Governor on November 21, 2018 and the subsequent proclamation of President’s rule under Article 356 on December 19, 2018 did not deter the court.
“Even if this court holds that the Proclamation could not have been issued under Article 356, there would be no material relief which can be given in view of the fact that President’s Rule was revoked in the State of Jammu and Kashmir on October 31, 2019,” Chief Justice Chandrachud justified. In his lead judgment, the Chief Justice, speaking for himself, Justices BR Gavai and Surya Kant, said Jammu and Kashmir had divested itself of “any element of sovereignty” after the execution of the Instrument of Accession to the Union in October 1947. Justices Kaul and Sanjiv Khanna concurred in their separate opinions.
“The State of Jammu and Kashmir does not have ‘internal sovereignty” distinguishable from the powers and privileges enjoyed by other States in the country,” Chief Justice Chandrachud held. At most, the special privileges and even a separate Constitution for Jammu and Kashmir was merely a “feature of asymmetric federalism and not sovereignty”.
The court held that Article 370 was only a “temporary provision” to ease the accession of the then princely State to the Union at a time of internal strife and war.
The power of the Parliament or the President to abrogate Article 370 did not cease to exist with the dissolution of the Constituent Assembly of Jammu and Kashmir in 1957. Only the power of the J&K Constituent Assembly to recommend abrogation of Article 370 ceased to exist with its dissolution. The power of the President under Article 370(3) to abrogate Article 370 had continued to prevail.
“When the Constituent Assembly dissolved, only the transitional power recognised in the proviso of Article 370(3), which empowered the Constituent Assembly to make its recommendations ceased to exist. It did not affect the power held by the President under Article 370(3),” Chief Justice Chandrachud clarified.
