SUPREME COURT UPHOLDS THE DECISION OF ABROGATION OF ARTICLE 370 BY THE CENTRAL GOVERNMENT

INTRODUCTION

In the recent landmark Judgement passed by a 5 Judge Constitutional Bench of the Supreme Court comprising of the Chief Justice of India (CJI) DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjeev Khanna, Justice Bhushan R Gavai and Justice Surya Kant in the matter of Writ Petition (Civil) No. 1099 of 2019 and a batch of other Petitions on 11.12.2023, the Apex Court upheld the abrogation of Article 370 by the Centre and held the Constitutional Order that revoked Article 370 as valid.

BACKGROUND

1) Article 370 in the Indian Constitution gave special status to Jammu and Kashmir (“J&K”), a region disputed by India, Pakistan and China. It was drafted by N Gopalaswami Ayyangar, a member of the Constituent Assembly of India, and was added to the Constitution as a ‘temporary provision’ in 1949.

2) This allowed the State to have its own Constitution, flag and autonomy in internal administration over matters except defence, foreign affairs and communications.

3) This empowered the J&K Constituent Assembly which was elected in 1951 to formulate the Constitution of J&K and to recommend the extent to which the Indian Constitution would apply to J&K. The said recommendations had to be given to the President of J&K and then the President, by issue of a Presidential Order would decide and adopt the provisions of the Constitution of India in the Constitution of J&K.

4) Article 370 also stated that the Constituent Assembly could also abrogate the Article 370 altogether, in which case the entire Indian Constitution would apply to the State of J&K as it does to the rest of the Country.

5) But in the year 1957, the Constituent Assembly of J&K was dissolved, therefore, making the temporary provision, permanent as only the Constituent Assembly had the power to abrogate Article 370 in J&K.

6) Thereafter, in the year 2019, J&K had a Presidential Rule that continued for few months. The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b). These Orders had the effect of applying the entire Constitution of India to the State of Jammu and Kashmir and abrogating Article 370. Contemporaneously, Parliament enacted the Jammu and Kashmir Reorganisation Act 2019 which bifurcated the State into two Union territories. The “Constituent Assembly” became the “Legislative Assembly” and the said Legislative Assembly was bound by the Indian Parliament. At this point of time, by way of a Presidential Order dated 05.08.2019 Article 370 was abrogated.

7) This act of abrogation of Article 370 was challenged by the Petitioners as being unconstitutional.

8) The Petitioners challenged that the Governor’s Proclamation under Section 92 of the Constitution of Jammu and Kashmir dated 20 June 2018 as being void. The mandatory pre-condition of the satisfaction of the Governor that the State government cannot be carried out in accordance with the provisions of the Constitution, was not fulfilled. Further the Petitioners stated that it was a political act, in violation of the Constitution, brought about with the intention to ultimately abrogate Article 370.

9) The Petitioners contended that the Governor’s rule was imposed on 20 June 2019, a day after the Bharatiya Janata Party withdrew from the coalition on 19 June 2019. There was no opportunity given to the other Parties to demonstrate strength in the House. Other Parties like the Congress, the PDP and the National Conference had, in a fax, to the Governor expressed willingness to form a coalition. It was incumbent upon the Governor to reach out to the Parties and explore the possibilities of forming a government.

10) Further the Petitioners contended that the manner in which the Union Government had acted and the decisions of the Governor and the President were all political stratagems to achieve outcomes that were unconstitutional.

11) The Apex Court, carefully framed the following issues on the contentions made by the Petitioners.

ISSUES BEFORE THE SUPREME COURT

i) “Whether the provisions of Article 370 were temporary in nature or whether they acquired a status of permanence in the Constitution?

ii) 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?

iii) 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)?

iv) 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)?

v) 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?

vi) 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?

vii) 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 bearing in mind?

a) The first proviso to Article 3 which requires that a Bill affecting the area, boundaries or name of a State has to be referred to the legislature of the State for its views; and

b) The second proviso to Article 3 which requires the consent of the State legislature for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name of boundary of the State before the introduction of the Bill in Parliament

viii) 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?”

SUPREME COURT ANALYSIS

As the Judgement is running into 476 pages, we have dealt with a few of the issues. [i]

i) Whether the provisions of Article 370 were temporary in nature or whether they acquired a status of permanence in the Constitution?

(1) The Supreme Court has noted the historical context in which the State of Jammu and Kashmir had acceded to the Dominion of India to ascertain whether the State held an element of sovereignty.

(2) There were several events leading up to the accession of Jammu and Kashmir. The Court observed that “though the State of Jammu and Kashmir had acceded to the Dominion of India, it reserved the right to alter the terms of the arrangement in view of Clause 7 of the IoA read with Section 6(2) of the Government of India Act 1935 which was made applicable through the India (Provisional Constitution) Order 1947. In terms of Clause 7 of the IoA, the State of Jammu and Kashmir reserved the right to alter the terms of arrangement of power between India and the State of Jammu and Kashmir. The Clause specifically reserves the right of the State to “enter into agreement with the Government of India under any future constitution.”

(3) In interpreting the provisions of Article 370 as they stood before abrogation, the Supreme Court was of the view:

“While interpreting Article 370, regard must be had to the entire provision and its parts ought not to be construed in a manner disconnected or disjointed from the meaning and scheme of the provision in its entirety.”

(4) The Apex Court further held “that on 26 January 1950, when the Constitution was adopted, the State of Jammu and Kashmir became an integral part of the territory of India. The mandate of Article 1 is that “India that is Bharat shall be a Union of States”. The States and their territories would be those specified in Parts A, B and C of the First Schedule. The State of Jammu and Kashmir was a Part B State on the date of the adoption of the Constitution. With the adoption of the Seventh Amendment to the Constitution which obliterated the distinction between Parts A, B and C States, Jammu and Kashmir became a State in the Union of States. In other words, Article 370 of the Constitution read together with Article 1 leaves no manner of doubt that the integration of Jammu and Kashmir as a part of the nation, which in itself was a Union of States was complete.”

ii) 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? And 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?

(1) On 19 June 2018, Mehbooba Mufti resigned as Chief Minister after the Bharatiya Janata Party withdrew from the alliance with the Jammu and Kashmir Peoples’ Democratic Party. On the next day, the Governor of Jammu and Kashmir with the approval of the President imposed Governor’s rule in the State of Jammu and Kashmir in exercise of power under Section 92 of the Constitution of Jammu and Kashmir. The Proclamation issued under Section 92 would cease to operate on the expiry of six months from the date on which it was issued. Section 92 of the Constitution of Jammu and Kashmir, unlike Article 356 of the Indian Constitution, does not permit the extension of the Proclamation beyond six months. Thus, Governor’s rule would have come to an end on 19 December 2018. The President issued a Proclamation under Article 356 on 19 December 2018. The Proclamation was approved by the Lok Sabha on 28 December 2018 and the Rajya Sabha on 3 January 2019. On 28 June 2019 and 1 July 2019, the Lok Sabha and Rajya Sabha extended President’s rule for another six months.

(2) No challenge was mounted to the Proclamations under Section 92 of the Constitution of Jammu and Kashmir until after the tenure of the Proclamation had ended. No challenge was made to the Proclamation under Article 356 of the Constitution of India immediately after it was issued.

(3) The power of the President under Article 356 to issue a Proclamation is of an exceptional nature which has wide ramifications on the autonomy of the State and the federal framework at large. Thus, laches in challenging the Proclamations cannot by itself be a valid ground to reject a constitutional challenge to the Proclamations issued under Article 356 of the Constitution and Section 92 of the Constitution of Jammu and Kashmir. However, the Constitutional Bench thought that the challenge to the validity of the Proclamations did not merit adjudication because:

(4) “The pleadings of the petitioners in the writ petitions indicate that their principal challenge is to the abrogation of Article 370 and whether such an action could have been taken during President’s rule. The challenge is to actions taken during the subsistence of President’s rule and not independently to President’s rule by itself; and

(5) 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 it was revoked on 31 October 2019. We are conscious that this Court in SR Bommai (supra) held that status quo ante can be restored upon finding that the Proclamation is invalid and the Court has the power to validate specific actions which were taken when the Proclamation was in force. The Petitioners have assailed the specific actions which were taken when the Proclamation was in force on the ground that these actions breach the constitutional limitations on the exercise of power after a Proclamation under Article 356 is issued. These substantive challenges which form the fulcrum of the case of the petitioners are being considered in the section below.”

iii) 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 bearing in mind?

(a) The first proviso to Article 3 which requires that a Bill affecting the area, boundaries or name of a State has to be referred to the legislature of the State for its views; and

(b) The second proviso to Article 3 which requires the consent of the State legislature for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name of boundary of the State before the introduction of the Bill in Parliament.

(1) The submission made by the Solicitor General that statehood would be restored of Jammu and Kashmir, the Supreme Court did 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 was permissible under Article 3. The status of Ladakh as a Union Territory was upheld because Article 3(a) read with Explanation I permits forming a Union Territory by separation of a territory from any State. The Apex Court was aware of the security concerns in the territory. Direct elections to the Legislative Assemblies which was one of the paramount features of representative democracy in India cannot be put on hold until statehood was restored. The Court directed 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 30 September 2024. Restoration of statehood would take place at the earliest and as soon as possible.

(2) The first proviso to Article 3 stipulates that where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the President must refer the Bill to the Legislature of that State for expressing their views. The President referred the Reorganisation Bill to the Lok Sabha and the Rajya Sabha for their views since Parliament exercised the “powers of the Legislature” of the State of Jammu and Kashmir in view of the Proclamation issued under Article 356. On 5 August 2019, the Lok Sabha and Rajya Sabha expressed the view in favour of the acceptance of the proposal in the Reorganisation Bill.

(3) If the views of the State Legislature were binding on Parliament (which is not the case), there would be scope for debate on whether Parliament in exercise of powers under Article 356(1)(b) could have substituted its views for the views of the Legislative Assembly of the State. However, the views of the Legislature of the State are not binding on Parliament in terms of the first proviso to Article 3. The views of the Legislature of the State under the first proviso to Article 3 are recommendatory to begin with. Thus, Parliament’s exercise of power under the first proviso to Article 3 is valid and not mala fide.

SUPREME COURT VERDICT

In view of the above issues, the Supreme Court held that:

(1)- The State of Jammu and Kashmir does not retain any element of sovereignty after the execution of the IoA and the issuance of the Proclamation dated 25 November 1949 by which the Constitution of India was adopted. The State of Jammu and Kashmir does not have ‘internal sovereignty’ which is distinguishable from the powers and privileges enjoyed by other States in the country. Article 370 was a feature of asymmetric federalism and not sovereignty;

(2)- 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 challenge to the Proclamations did not merit adjudication because the principal challenge was to the actions that were taken after the Proclamation was issued;

(3)- The exercise of power by the President after the Proclamation under Article 356 was issued was subject to judicial review. The exercise of power by the President must have a reasonable nexus with the object of the Proclamation. The person challenging the exercise of power must prima facie establish that it is a mala fide or extraneous exercise of power. Once a prima facie case is made, the onus shifts to the Union to justify the exercise of such power;

(4)- The power of Parliament under Article 356(1)(b) to exercise the powers of the Legislature of the State cannot be restricted to law-making power thereby excluding non-law making power of the Legislature of the State. Such an interpretation would amount to reading in a limitation into the provision contrary to the text of the Article;

(5)- It can be garnered from the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution that it is a temporary provision;

(6)- The power under Article 370(3) did not cease to exist upon the dissolution of the Constituent Assembly of Jammu and Kashmir. When the Constituent Assembly was dissolved, only the transitional power recognised in the proviso to 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);

(7)- Article 370 cannot be amended by exercise of power under Article 370(1)(d). Recourse must have been taken to the procedure contemplated by Article 370(3) if Article 370 is to cease to operate or is to be amended or modified in its application to the State of Jammu and Kashmir. Paragraph 2 of CO 272 by which Article 370 was amended through Article 367 is ultra vires Article 370(1)(d) because it modifies Article 370, in effect, without following the procedure prescribed to modify Article 370. An interpretation clause cannot be used to bypass the procedure laid down for amendment;

(8)- The exercise of power by the President under Article 370(1)(d) to issue CO 272 is not mala fide. The President in exercise of power under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist. 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;

(9)- Paragraph 2 of CO 272 issued by the President in exercise of power under Article 370(1)(d) applying all the provisions of the Constitution of India to the State of Jammu and Kashmir is valid. Such an exercise of power is not mala fide merely because all the provisions were applied together without following a piece-meal approach;

(10)- 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. The declaration issued by the President under Article 370(3) is a culmination of the process of integration and as such is a valid exercise of power. Thus, CO 273 is valid;

(11)- The Constitution of India is a complete code for constitutional governance. Following the application of the Constitution of India in its entirety to the State of Jammu and Kashmir by CO 273, the Constitution of the State of Jammu and Kashmir is inoperative and is declared to have become redundant;

(12)- The views of the Legislature of the State under the first proviso to Article 3 were recommendatory. Thus, Parliament’s exercise of power under the first proviso to Article 3 under the Proclamation was valid and not mala fide;

(13)- The Solicitor General stated that the statehood of Jammu and Kashmir will be restored (except for the carving out of the Union Territory of Ladakh). 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, the Supreme Court 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; and

(14)- The Supreme Court directs 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 30 September 2024. Restoration of statehood shall take place at the earliest and as soon as possible. The Writ Petition and special leave petitions are disposed of in the above terms.”

Kartik Khandekar

Associate

The Indian Lawyer

 

Editors’s Comments

The issue of Kashmir that has plagued the Nation for years was finally resolved by a Presidential Order dated 05.08.2019 where Article 370 was abrogated doing away with the special status of Jammu and Kashmir. This integral part of India is now a part of India and the Constitution of India and other laws apply to this State too. The Supreme Court’s Constitutional Bench by giving an approval to this act and upholding that Presidential Order dated 05.08.2019 was legal has finally put the matter to rest. We as Indians can now proudly and safely state that Jammu and Kashmir is an integral part of India.

Sushila Ram Varma

CEO and Editor

The Indian Lawyer

 

[i] Full Judgment of the Supreme Court- https://main.sci.gov.in/pdf/LU/article_370.pdf