Article 370 A Temporary Provision : Supreme Court Upholds Abrogation of Special Status of Jammu and Kashmir

The Supreme Court on December 11 upheld the validity of the Union Government's 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution. The Court held that the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian Constitution to the State of J&K. It was held that Article 370 was a temporary provision. In view of the submission of the Solicitor General that the Union will restore the statehood of J&K as soon as possible, the Court did not adjudicate upon the validity of the reorganisation of J&K into Union Territory (UT). However, the carving out of Ladakh as UT was upheld. The Court also issued a direction to the Election Commission of India to take steps to hold elections to the J&K Legislative Assembly by September 30, 2024.Although the Court held as invalid the Constitutional Order 272 to the extent it changed the meaning of 'J&K Constituent Assembly' as 'J&K Legislative Assembly' and 'J&K Government' as 'Governor', this conclusion did not affect the outcome of the judgment since the Court held that the recommendation of J&K Constituent Assembly was not necessary for the President to declare Article 370 as inoperative.The Constitution bench of the Supreme Court, led by Chief Justice of India DY Chandrachud and composed of Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, pronounced the judgement. The Apex Court had reserved the judgement in the matter on 5 September 2023 after hearing it for sixteen long days. There were three judgements in the matter- one by CJI DY Chandrachud for himself and for Justices Gavai and Surya Kant. The second was a concurring opinion authored by Justice SK Kaul. Justice Sanjiv Khanna concurred with both the judgements. In his judgement, Justice SK Kaul recommended the setting up of an impartial "Truth and Reconciliation Committee" to investigate and report on the violations of human rights both by the State and non-state actors at least since 1980s and recommend measures for reconciliation. He added that the exercise of the committee shall be carried out in a time-bound manner. However, considering the sensitivities of the matter, he held that it was for the government to decide the manner in which the Truth and Reconciliation Commission must be set up.Issues Framed By The Court1. Whether the provisions of Article 370 were temporary in nature or whether they acquired a status of permanence in the Constitution;2. 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;3. 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);4. 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);5. 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;6. 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;7. 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 valid8. 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.Conclusions Reached By Court1. Court Need Not Adjudicate On Validity Of President's RuleThe court held that it need not adjudicate on the validity of the presidential proclamations announcing President's Rule in the State since petitioners did not challenge the same. In any case, the court found that no material relief could be given as the President's Rule was withdrawn in October 2019.2. Every Decision Of Union When State Is Under President's Rule Cannot Be ChallengedThe court held that there are limitations on power of the Union and States when proclamation of presidential rule was in force. It stated that the scope of the power of Union depends on the...

Article 370 A Temporary Provision : Supreme Court Upholds Abrogation of Special Status of Jammu and Kashmir

Padmakshi Sharma

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