Supreme Court upholds the abrogation of Article 370, says it is a ‘temporary provision’ | LIVE updates

The Supreme Court has ordered the establishment of a Truth-and-Reconciliation Commission to address human rights violations in Jammu and Kashmir since the 1980s. Justice S.K. Kaul in his concurring verdict directed the setting up of the commission to probe and report on human rights violations both by the State and non-State actors.

Read more here. 

SC directs the establishment of ‘Truth and Reconciliation Commission’ to address human rights violations in J&K

Justice Kaul said that the Commission should not turn into a criminal court and must offer a platform for dialogue instead

“August 5, 2019 and today’s date will go down in the history of India when a himalayan constitutional blunder of the past with gigantic proportion is ultimately corrected by the Government,” says Solicitor General Tushar Mehta.

“Being the only lawyer involved in the process of abrogation of Article 370 through constitutional and legal means before 5th August, 2019 and having led the arguments before the Constitution Bench of the Supreme Court while defending the constitutional process, it is a historical day for me too,” he says. 

“It is only the iron will of our Hon’ble Prime Minister Shri Narendra Modiji and resolute decisiveness and brilliant strategy of our Hon’ble Home Minister Shri Amit Shahji which made this historical decision possible,” he mentions. - Krishnadas Rajagopal

Today, the Supreme Court’s verdict has proved that the decision to abrogate #Article370 was completely constitutional, says Home Minister Amit Shah in a series of tweets. 

Welcoming the verdict, Prime Minister Narendra Modi assures the people of Jammu, Kashmir and Ladakh that “our commitment to fulfilling your dreams remains unwavering. “

Democratic Progressive Azad Party (DPAP) chairman Ghulam Nabi Azad on Monday termed the Supreme Court’s verdict on pleas challenging the abrogation of the provisions of Article 370 of the Constitution “sad and unfortunate”, but said, “we have to accept it”.

“It (the court verdict) is sad and unfortunate,” Mr. Azad told reporters in Srinagar, adding “but we have to accept it (the verdict).”

People’s Conference president Sajad Lone on the verdict: 

‘Supreme Court verdict on Article 370 is disappointing. Justice yet again eludes the people of J& K. Article 370 may have been legally obliterated but will always remain a part of our political aspirations. “

In the case of statehood, Mr. Lone said the Supreme Court sidestepped even commenting on it. It could have protected the entire country from any future misuse, by citing precedence. However, the same misuse was subtly endorsed in J & K, Mr. Lone said. 

Let us hope at a future date Justice wakes up from its slumber of pretence.’ 

‘The 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’, Justice Kaul states further. 

Justice Kaul says that it is for the government to decide how the Truth and Reconciliation Commission must be set up, considering the sensitivities of the issues involved. 

‘The Commission must not turn into a criminal court and must be offering a platform for dialogue.’, he cautions. 

‘I recommend the setting up of an impartial ‘Truth and Reconciliation Commission’ to investigate and report on the violations of human rights both by the State and non-state actors at least since the 1980s and recommend measures for reconciliation. The Commission must be set up before memory escapes. The exercise must be time-bound. There is an entire generation of youth that has grown up with a feeling of distrust and it is to them that we owe the greatest day of liberation’, Justice Kaul says. 

‘When a procedure is prescribed, it has to be followed. Amendment through the backdoor is not permissible’, Justice Kaul states regarding the procedure of amendment of Article 370 using Article 367 of the Constitution. 

‘When the Constituent Assembly ceased to exist, it meant only the proviso to Article 370(3) was rendered otiose. But the main provision existed’, Justice Kaul explains. 

‘The purpose of Article 370 was to slowly bring Jammu and Kashmir on par with the other States of India. The requirement of recommendation of J&K Constituent Assembly cannot be read in a manner that makes the larger intention redundant’, Justice Kaul asserts. 

The Court directs the Election Commission of India to take steps to ensure that elections to the J&K assembly are conducted by September 30. Restoration of statehood shall take place as soon as possible, it adds. 

1) The State of J&K does not retain any element of sovereignty. It does not have internal sovereignty. Article 370 is a feature of asymmetric federalism and not sovereignty.

2) The Petitioners did not challenge the Presidential Proclamation. 

3) The exercise of the President’s power after the proclamation is subject to judicial review.

4) The power of the Parliament under Article 356(1) to exercise powers on behalf of the State Assembly is not restricted to the law-making powers.

5) Article 370 is a temporary power. 

6) The power under Article 370(3) did not cease after the J&K Constituent assembly ceased to exist. 

7) Article 370 cannot be amended by exercise of power under Article 370(1)(d).

8) Para 2 of CO 272 amending Article 367 is ultra vires because it modifies Article 370 in effect.

9) The exercise of power by the President under Article 370(1)(d) is not mala fide. The President did not have to obtain the concurrence of the State and can act on the Union’s concurrence.

10) Para 2 to CO 272 applying all provisions of the Constitution to J&K is valid.

11) The President had the power to issue a notification declaring that Article 370 ceases to operate without a recommendation of the J&K Constituent Assembly. It is a culmination of the integration process. 

12) The views of the State legislature under Article 3 proviso are recommendatory. 

13) Since the Solicitor General stated that the statehood of J&K will be restored except for the carving out of the Union Territory of Ladakh, this issue is left upon.

Chief Justice Chandrachud, and Justices Gavai and Surya Kant form the lead judgment.

• J&K did not retain internal sovereignty or element of sovereignty after the proclamation of November 22, 1949.
• President and Parliament are not impeded to take over as Governor/State Legislature after proclamation under Article 356.
• Article 370 is only a temporary provision. The Bench rejects petitioners’ arguments that Article 370 was of a permanent character and beyond the amending powers of the Parliament.
• The CJI-authored judgment holds that the power of the President to notify the abrogation of Article 370 subsists even after the dissolution of the Constituent Assembly of Jammu and Kashmir.
• The CJI notes that Article 370 was only a provision to take care of the transition from a princely State to the Union. It was an interim arrangement to tide over the war at the time. Even the textual reading of Article 370 shows it as a temporary provision.
• Concurrence of the State legislature not required to apply all the provisions of the Indian Constitution to Jammu and Kashmir. The President/Centre not wrong in not taking concurrence of the State legislature.
• The Constitution of J&K is now inoperative. It was only made to fill “gaps” in the Indian Constitution concerning the State. After abrogation of A 370 and application of the entire Indian Constitution to the State, the J&K Constitution implicitly serves no purpose.
• No need to examine whether J&K Reorganization Act after Solicitor General, appearing for Centre, said the Union Territory of J&K would be returned to Statehood.
• Elections to Jammu and Kashmir Assembly should be held before September 30, 2024.

‘The reorganisation of Ladakh as a Union Territory is upheld as Article 3 allows a portion of a State to be made as a Union Territory’, the CJI adds. 

Pronouncing its ruling on the issue of the validity of the J&K Reorganisation Act 2019, the CJI says – 

‘The Solicitor General submitted that the statehood of J&K will be restored and the status of Union Territory was temporary. In view of the submission made by the Solicitor General, we don’t find it necessary to determine whether the reorganisation of J&K into a Union Territory is valid.’ 

The court elaborates that the interpretation clause (Article 367 of the Constitution) cannot be modified to amend Article 370 bypassing the amendment process. 

‘Interpretative clause cannot be used to bypass the specific route for a constitutional amendment. Permitting such amendments by such a surreptitious method would be disastrous’, the CJI asserts. 

The court rules that the amendments made to Article 370 by taking recourse to Article 367 is ultra vires.

‘While the change sought to be made by CO 272 appears to be to Article 367 at the first plush, it effectively changes Article 370. It changes the body for recommendation. Thus the changes are substantive’, the CJI says. 

The CJI rules that the principle of consultation and collaboration was not required to be followed for the exercise of Presidential power. 

‘The concurrence of the State government was not required to apply all provisions of the Constitution of India using Article 370(1)(d). So the President taking the concurrence of the Union Government was not malafide’, he adds. 

‘We do not find the use of Presidential power to issue C.O. 273 was malafide. Thus we hold the exercise of Presidential Power to be valid’, the CJI says. 

[Note: Former President Ramnath Kovind issued an Order (C.O. 273) on August 6, 2019, rendering Article 370 redundant. The Order resulted in all provisions of Article 370 ceasing to operate, except clause 1. Clause 1 of Article 370 states that the Constitution of India will operate in the State of Jammu and Kashmir. ] 

‘Holding that the power under Article 370(3) of the Constitution ceases to exist after the dissolution of the J&K Constituent Assembly will lead to the freezing of the process of integration’, the CJI asserts. 

‘The recommendation of the Constituent Assembly was not binding on the President. J&K Constituent Assembly was intended to be a temporary body’, the CJI adds. 

CJI Chandrachud says – ‘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.’

The CJI says that Article 370 is a temporary provision. 

‘Article 370 was an interim arrangement due to war conditions in the State. Textual reading also indicate that it is a temporary provision. Marginal note says it is temporary and transitory’, he adds. 

CJI Chandrachud says – ‘Whether Jammu and Kashmir retained an element of sovereignty or internal sovereignty when it joined the Union of India? We have held NO.’

CJI Chandrachud rules – ‘Argument of the petitioners that the Union cannot take actions of irreversible consequences in the State during Presidential rule is not accepted. ‘ 

CJI Chandrachud says – ‘There are limitations on the power of the Union in States when the proclamation of Presidential rule is in force. Exercise of power under ​Article 356 ​must have a reasonable nexus with the objective of the proclamation. Every decision taken by the Union on behalf of the State during Presidential rule is not open to challenge...this will lead to the administration of the State to a standstill...’. 

The Supreme Court refuses to rule on the validity of the President’s rule imposed in J&K since it was not specifically challenged by the petitioners. 

1. Whether Article 370 is temporary?

2. Whether the substitution of ‘constituent assembly’ by the legislative assembly by using Article 370(1) is valid?

3. Whether the Presidential order is invalid for the lack of recommendation of the J&K Constituent Assembly? 

4. Whether the Presidential rule imposed in December 2018 and subsequent extensions is valid? 

5. Whether the J&K Reorganisation Act bifurcating the State into two Union Territories is constitutionally valid?

6. Whether the Presidential proclamation is valid? 

There are three opinions – one by the CJI for himself, Justice Suryakant, and Justice BR Gavai. Justice Sanjay Kishan Kaul and Justice Sanjeev Khanna have authored separate, concurring opinions for themselves.

Ahead of the verdict, Senior Advocate Kapil Sibal who represented the petitioners in the case, posted on X: 

“Some battles are fought to be lost. For history must record the uncomfortable facts for generations to know. The right and wrong of institutional actions will be debated for years to come. History alone is the final arbiter of the moral compass of historic decisions.”

Peoples Democratic Party president Mehbooba Mufti has been put under house arrest in Srinagar ahead of the SC verdict on Article 370, a close aide of the leader said. 

A five-judge Constitution Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud will pronounce its verdict on the challenge to the abrogation of Article 370 of the Constitution today at 10:30 am. 

The proceedings can be watched live here. 

The Centre had conveyed to the Supreme Court its inability to commit to an exact time period within which the Union Territory of Jammu and Kashmir would be restored to full Statehood. The Union government, however, said Jammu and Kashmir was ready to hold elections “any time now”.

Read more here. 

Jammu and Kashmir enjoyed special status under Article 370 of the Constitution of India. This Article describes it as a temporary provision and that it will cease to be operative if the President issues a public notification to that effect. However, prior to that, a recommendation is necessary from the Constituent Assembly of Jammu and Kashmir.

Read The Hindu’s detailed explainer. 

Explained | How the status of Jammu and Kashmir is being changed

The Union Home Minister introduced two statutory resolutions, one, to recommend that the President issue a notification rendering Article 370 inoperative, and two, to accept the Jammu and Kashmir Reorganisation Bill

Jammu and Kashmir remains under a tight security cover ahead of the final verdict of the Supreme Court on the Centre’s move to dilute Article 370, ending the seven decades of special status, and split the erstwhile State into two Union Territories (UTs) of J&K and Ladakh in 2019. 

Read more here. 

Security forces intensify vigil in J&K ahead of SC verdict on Article 370

SC verdict on Article 370: The streets in Kashmir witnessed a calm on Sunday, a day ahead of the verdict. A majority of residents refused to comment on the issue, while many sought “reversal of what was done on August 5, 2019”.

What distinguishes the case of Article 370, apart from its imprint on India’s national narrative and the interest it generated in global human rights watchdogs—culminating in a high-decibel US congressional hearing in October 2019—is a series of knotty legal questions that lack definition and can lead to conflicting interpretations on the basis of one’s understanding of and commitment to federalism, federal autonomy, and the degree of salience of the people’s will in legislative prerogatives of the state.

Read more here. 

Article 370 in Supreme Court: Will Kashmir’s special status be restored?

Was Article 370 meant to be be permanent? Supreme Court must decide on the status of Jammu and Kashmir. Defendants and oppositions must make their case to decide the status of the United territory.

Read ​The Hindu’s editorial​ on the abrogation of Article 370. 

Here is a comprehensive coverage of the historic constitutional case, day-to-day live updates from the court proceedings, and in-depth analyses of the issues involved.

​Read more here​. 

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Article 370 abrogation case | The Hindu’s detailed coverage

Ahead of the historic Article 370 abrogation verdict, here is The Hindu’s detailed coverage of the Supreme Court proceedings