The story so far: A Constitution Bench of the Supreme Court on Monday unanimously upheld the power of the President to abrogate Article 370 of the Constitution, which in August 2019 led to the reorganisation of the State of Jammu and Kashmir (J&K) into two Union Territories and denuded it of its special privileges. It reasoned 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.
In the lead judgment, Chief Justice of India (CJI) D.Y. Chandrachud, writing for himself, Justices B.R. Gavai and Surya Kant, pointed out that J&K had divested itself of “any element of sovereignty” after the execution of the Instrument of Accession to the Union in October 1947. Justices Sanjay Kaul and Sanjiv Khanna concurred in their separate opinions. The special privileges of J&K as well as a separate Constitution were held to be a mere feature of ‘asymmetric federalism’ and not sovereignty.
Notably, Justice Kaul in his concurring verdict ordered the establishment of a Truth and Reconciliation Commission to address violations of human rights perpetrated in J&K both by state and non-state actors since the 1980s. He acknowledged that ‘there is already an entire generation of youth that has grown up with the feeling of distrust’ and that we owe to them the ‘greatest day of reparation’.
Here, The Hindu decodes the key elements of the verdict:
Is Article 370 a ‘temporary provision’?
The court held that Article 370 was meant to be a ‘temporary provision’ for two primary reasons. First, it served a transitional purpose which was to make an interim arrangement to establish a Constituent Assembly of J&K which would draft the State Constitution. Second, it was meant to ease the integration of J&K into the Union of India in the light of the prevailing war-like situation in the State back in 1947.
Relying on a textual interpretation, the court pointed out that the provision is placed in Part XXI of the Constitution, titled “Temporary, Transitional and Special Provisions” which shows the intention of the Constitution framers. “The provisions were transitional so as to facilitate the transfer of power from the institutions of governance which were functioning under the Government of India Act 1935 to the duly constituted institutions which would take over after the commencement of the Constitution”, it reasoned.
Underscoring that J&K became an integral part of the territory of India with the adoption of the Constitution on January 26, 1950, the Chief Justice observed— “Any interpretation of Article 370 cannot postulate that the integration of Jammu and Kashmir with India was temporary”.
Did J&K retain any element of soverignity after its accession?
The petitioners had argued that J&K retained an element of sovereignty when it joined the Indian Union in 1947. This arrangement, they argued, was distinct from the relationship with the other princely states that merged with India. Further, they pointed out that paragraph 8 of the Instrument of Accession stated that nothing in the instrument would affect the continuance of the sovereignty of the ‘Maharaja’.
However, the court underscored that the operation of this paragraph ceased to exist following the proclamation issued by Karan Singh on November 25, 1949, the ruler of Jammu and Kashmir, which stipulated that the Constitution of India would govern the relationship between J&K and the Union and had the effect of a ‘merger’ like any other princely state. Moreover, the provisions of the Indian Constitution would, according to the Proclamation, supersede and abrogate all other constitutional provisions inconsistent with it which were then in force in the State. This, the majority opinion stated, reflected the “full and final surrender of sovereignty by Jammu and Kashmir, through its sovereign ruler, to India”.
“This is not a case where only Articles 1 and 370…were applied to Jammu and Kashmir and suddenly after seventy years the entire Constitution was being made applicable. 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 in exercise of the power under Article 370(3) is a culmination of the process of integration.”Chief Justice of India D.Y. Chandrachud, lead judgment
The Chief Justice also outlined that, unlike the Constitution of India, ‘there is a clear absence’ in J&K’s Constitution of a reference to sovereignty. He highlighted that Article 370 was merely a ‘feature of asymmetric federalism’ similar to other provisions in the Constitution such as Articles 371A to 371J — examples of special arrangements for different States.
“If the position that Jammu and Kashmir has sovereignty by virtue of Article 370 were to be accepted, it would follow that other States which had special arrangements with the Union also possessed sovereignty. This is clearly not the case,” he reasoned. It was asserted that although different States might enjoy varying degrees of autonomy, the difference, however, remains one of degree and not of kind in a federal set-up.
However, Justice Kaul in his concurring opinion held that J&K retained an element of internal sovereignty despite Maharaja Hari Singh signing the Instrument of Accession with India. This is evident from the fact that Article 370 recognises the Constituent Assembly of J&K. However, he outlined that this arrangement was temporary and was meant to eventually derecognise this internal sovereignty and apply the Constitution of India in its entirety to J&K through the mechanism under Article 370(3).
Can actions with ‘irreversible’ consequences on a State be taken during President’s rule?
The petitioners had argued that the President while exercising powers under Article 356 of the Constitution cannot take actions with ‘irreversible’ consequences in a State during President’s rule. Significant legislative alterations were made to the State during President’s rule such as the repeal of its special status, the separation of Ladakh, and its conversion into a union territory — which meant that the Union government could unilaterally bring about such enduring changes without having to solicit the consent of the State legislature.
Dismissing such contentions, the court reasoned that challenging the exercise of the President’s power on the ground of irreversibility would open the way for challenging everyday administrative actions which would in effect put the administration in the State at a standstill. It however underscored that such exercise of power must have a reasonable nexus to the object of the Presidential Proclamation. It added that the onus was on the person challenging the actions of the President during an emergency to prima facie establish they were a “mala fide or extraneous exercise of power”.
“When a Proclamation under Article 356 is in force, there are innumerable decisions which are taken by the Union Government on behalf of the State Government for the purpose of day-to-day administration. Every decision and action taken by the Union Executive on behalf of the State is not subject to challenge. Opening up challenge to every decision would lead to chaos and uncertainty. It would in effect put the administration in the State at a standstill,” the Chief Justice further underscored.
Reliance was also placed on the Supreme Court’s ruling in S. R. Bommai v. Union of India (1994) which defined the ambit of powers that can be exercised during President’s rule. Since the Bommai ruling was a nine-judge Bench verdict, it was binding on the present 5-judge Bench.
Can a State be converted into a Union Territory?
Due to the assurance given by the Union government that J&K’s statehood would be restored soon, the court did not go into the issue of whether the conversion of J&K into a Union Territory was valid. It, however, upheld the Jammu and Kashmir Reorganisation Act, 2019 to the extent that it carved out the Union Territory of Ladakh out of the State of J&K.
“...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,” the court ruled.
The Chief Justice, however, cautioned that while exercising powers under Article 3 of the Constitution to convert a State into one or more Union Territories, “the necessary effect of converting a State to Union Territories which is that autonomy would be diminished, the historical context for the creation of federating units, and its impact on the principles of federalism and representative democracy” must be borne in mind.
Reiterating similar concerns, Justice Sanjiv Khanna stated that the conversion of a State into a Union territory has ‘grave consequences’ and denies the citizens of the State an elected government, and impinges on federalism. Thus, such a conversion has to be justified by giving very strong and cogent grounds.
Importantly, the court underscored that the views of the State legislature regarding the proposed reorganisation of the State are recommendatory and not binding on the Parliament.
Was the concurrence of the State government required to apply the provisions of the Constitution of India to J&K?
The court ruled that the President while exercising powers under Article 370(3) of the Constitution can ‘unilaterally’ notify that Article 370 ceases to exist. It further said that there was no requirement for the President to secure the concurrence of the State government in this regard as mandated by the provisos to Article 370(1)(d).
“The principle of consultation and collaboration underlying the provisos to Article 370(1)(d) would not be applicable where the effect of the provision is the same as Article 370(3). Since the effect of applying all the provisions of the Constitution to Jammu and Kashmir through the exercise of power under Article 370(1)(d) is the same as issuing a notification under Article 370(3) that Article 370 ceases to exist, the principle of consultation and collaboration are not required to be followed,” the lead judgment stipulates.
It was also pointed out that such collaboration between the President and the State government would have been necessary if provisions of the Indian Constitution were to be applied to the State in a manner that would require amendments to the State Constitution. However, in this case, the President through Presidential Order [Paragraph 2 of C.O.272] ensured a total application of the Indian Constitution to the State to the effect that the State’s Constitution became inoperative.
Could the President have exercised his powers to ‘unilaterally’ abrogate Article 370 even after the dissolution of the J&K Constituent Assembly?
The petitioners had pointed out that the proviso to clause 3 of Article 370 makes it clear that the presidential power to abrogate Article 370 was contingent on the recommendation of the J&K Constituent Assembly. However, the court ruled that even after the dissolution of the Constituent Assembly on January 26, 1957, the President’s power to abrogate the provision by exercising powers under Article 370(3) subsists and could be exercised “unilaterally”.
The Chief Justice asserted that holding that the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would lead to ‘freezing of the integration’ contrary to the purpose of introducing the provision.
“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),” the ruling elaborated.
Concurring with this view, Justice Kaul emphasised that the purpose of Article 370 was to slowly bring J&K on par with the other States of India and thus the “requirement of recommendation of J&K Constituent Assembly cannot be read in a manner making the larger intention redundant”.
Could Article 370 be amended through the interpretation clause Article 367?
Article 370(3) of the Constitution stipulates that a Presidential Order abrogating the provision can only be issued pursuant to the recommendation of J&K’s Constituent Assembly. However, the Constituent Assembly dissolved in 1957 without extending any such recommendation as a result of which the President of India was so long powerless to abrogate Article 370.
On August 5th, 2019, the Presidential Order [C.O. 272] was issued which did not per se make any changes to Article 370 but instead amended Article 367 — a provision that stipulates how the Constitution should be amended. The amendment made it such that the reference to the ‘Constituent Assembly’ in Article 370(3) became a reference to the ‘Legislative Assembly’ thereby crossing the hurdle of requiring the assent of J&K Constituent Assembly.
Since the State was under the President’s Rule at that time, the powers of the J&K Legislative Assembly were vested in the Parliament. Accordingly, Presidential Order [C.O. 273] was soon promulgated seeking the consent of Parliament (which had assumed powers of the J&K legislature) to recommend that “all clauses of the said article 370 shall cease to be operative”.
Asserting that an ‘interpretation’ clause cannot be used to amend a provision of the Constitution by bypassing the specific procedure laid down for its amendment under Article 368, the court struck down paragraph 2 of C.O. 272 for being ultra vires Article 370 (1)(d).
“While the change sought to be made by paragraph 2 of CO 272 may appear to be a ‘modification’ or amendment of Article 367 at first blush, its effect is to amend Article 370 itself. Paragraph 2 couches the amendment to Article 370 in the language of an amendment or modification to Article 367 but its true import is to amend Article 370,” the court noted.
The Chief Justice pointed out that the fundamental difference between a ‘Constituent Assembly’ and a ‘Legislative Assembly’ renders the modification of Article 367 a modification of Article 370(3), which has an effect that is ‘appreciable and substantive’. He cautioned that the consequces of permitting amendments through such a circuitous manner would be disastrous.
However, such an adverse finding did not have any material bearing on the outcome of the case since the court opined that the recommendation of the J&K Constituent Assembly was not required for the President to abrogate Article 370.
Was the proclamation of President’s Rule valid?
The court held that the challenge to the Presidential Proclamations announcing the President’s Rule in the State did not merit adjudication since the petitioners had not challenged them until the abrogation of Article 370. Noting that this was not the ‘principal challenge’, the court observed that in case it could not extend any material relief since the President’s rule in J&K ended on October 31, 2019.
Elections in J&K
While the court stated that J&K’s statehood should be restored as soon as possible, it ordered that elections to the legislative assembly of J&K should be held by September 30, 2024.
Constitution of a ‘Truth and Reconciliation Commission’
Justice Kaul in his concurring opinion mooted the constitution of a Truth-and-Reconciliation Commission along the lines of the one set up in South Africa after apartheid to address human rights violations both by state and non-state actors in Jammu and Kashmir since the 1980s. Considering the sensitivities of the issues involved, Justice Kaul said that it was up to the government to decide how the Commission must be set up. He however cautioned that the Commission once constituted should not ‘turn into a criminal court’ and must offer a platform for dialogue instead.
“This Commission should be set up expediently before memory escapes. The exercise should be time-bound. There is already an entire generation of youth that has grown up with feelings of distrust and it is to them that we owe the greatest duty of reparation”, he underscored.
Impact of the verdict
Pratap Bhanu Mehta, academician and constitutional expert, says that it is reassuring that the court held that the modification to Article 367 by Constitutional Order (CO) 272 was ultra vires to Article 370(1)(d) as it would deter governments from introducing similar ‘backdoor amendments’ in the future.
However, he points out, “If an article is to be amended, the amendment has to be specific to it. But given that CO 272 is at the heart of the process, should not the whole exercise be considered to be rendered suspect or mala fide? Under normal constitutional interpretation, it would. But then we have a jurisprudence where law applies to all possible future cases but not the one being adjudicated.”
The Hindu’s editorial underscores that the verdict legitimises the subversion of federal principles, fails to appreciate historical context, and undermines constitutional procedure.
“The most potent attack on federal principles is the Court’s unconscionable conclusion that Parliament, while a State is under President’s Rule, can do any act, legislative or otherwise, and even one with irreversible consequences, on behalf of the State legislature. This alarming interpretation comes close to undermining a basic feature of the Constitution as enunciated by the Court itself and may have grave implications for the rights of States, permitting a range of hostile and irrevocable actions in the absence of an elected body,” the editorial states.
Published - December 12, 2023 09:27 pm IST
