DATE
11th December, 2023.
JUDGE/BENCH
Dr D.Y. Chandrachud, C.J. and B.R. Gavai, Surya Kant, Sanjay Kishan Kaul and Sanjiv Khanna, JJ.
AREA OF LAW INVOLVED
Constitutional law: Article 370; Constitutional order 272 and 273.
FACTS
• Article 370 provided special governance arrangements for Jammu and Kashmir.
• The state government dissolved in 2018, leading to the Governor’s rule under Section 92 of the Jammu and Kashmir Constitution.
• Article 356 was invoked, and President’s rule was imposed in December 2018.
• Parliament recommended the cessation of Article 370 and passed the Jammu and Kashmir Reorganisation Bill in 2019.
• Both houses of Parliament passed the Reorganisation Bill, dividing Jammu and Kashmir into two Union territories.
• Central legislations were made applicable to the Union territories, and amendments were made to existing state laws.
• Constitutional Orders 272 and 273, along with the Reorganisation Act, effectively nullified Article 370 on August 6, 2019.
• The Ministry of Home Affairs notified the Reorganisation Act into force on October 31, 2019.
• Jammu and Kashmir was bifurcated into the Union Territory of Ladakh and the Union Territory of Jammu and Kashmir, with the President’s rule revoked.
ISSUES RAISED
a. Whether the provisions of Article 370 were temporary or acquired permanence in the Constitution.
b. Whether the amendment to Article 367, substituting “Constituent Assembly” with “Legislative Assembly” under Article 370(1)(d), is constitutionally valid.
c. Whether the entire Constitution of India could have been applied to Jammu and Kashmir under Article 370(1)(d).
d. Whether the abrogation of Article 370 by the President without the recommendation of the Jammu and Kashmir Constituent Assembly, as mandated by the proviso to clause (3), is constitutionally invalid.
e. Whether the proclamations and subsequent actions of the Governor and President, including the dissolution of the Legislative Assembly and imposition of Article 356, are constitutionally valid.
f. Whether the Jammu and Kashmir Reorganisation Act 2019, which bifurcated the state into two Union Territories, is constitutionally valid, considering the requirements of Article 3 regarding state legislature’s views and consent.
g. Whether the conversion of Jammu and Kashmir from a state to a Union Territory during the tenure of a proclamation under Article 356 constitutes a valid exercise of power under Article 1(3)(a) and (b).
CONTENTIONS
PETITIONER
The petitioners, represented by several senior advocates, contended that Article 370 of the Indian Constitution had acquired permanent status and could not be unilaterally repealed by the central government. They also claimed that the Constitution prohibits downgrading a state to a union territory. The following are the main points of their argument:
According to senior advocate Gopal Subramanium, the Indian and Jammu and Kashmir constitutions complement each other, as in Article 370. Senior advocates Shah, Rajeev Dhawan, and Dinesh Dwivedi emphasised that Jammu and Kashmir had a unique relationship with India because of its accession circumstances, granting it greater autonomy and a distinctive Constitution.
The petitioners argued that Article 370, despite being labelled as a “temporary provision,” was intended to be permanent. Senior advocates Gopal Sankaranarayanan and Dushyant Dave cited the creation of the Jammu and Kashmir Constitution by the Constituent Assembly as proof of the article’s intended permanence. Sankaranarayanan also cited historical context and regional leaders’ perspectives to support his interpretation.
Senior advocates Kapil Sibal and Sanjay Parikh contended that Presidential Orders could not revoke Article 370 without the involvement of the Jammu and Kashmir Constituent Assembly. Gopal Subramanium stated that any changes to Article 370 would require the approval of the Jammu and Kashmir legislature. Rajeev Dhavan emphasised that Article 370 could only be amended through its own prescribed process, which excludes the President. Sibal, Subramanium, and Dushyant Dave argued that Article 370 could not be abrogated without the concurrence of the Jammu and Kashmir Constituent Assembly. They argued that because the assembly was dissolved in 1957, the provision could not be amended or repealed.
Sibal argued that rescinding statehood and dividing Jammu and Kashmir was unconstitutional and contradicted representative government principles. Dhavan pointed out that changing state boundaries required the consent of state legislatures under Article 3. Senior advocate Shekhar Naphade argued that it violated the Constitution’s fundamental structure, contradicting the idea of India as a “Union of States”, as stated in Article 1.
RESPONDENT
The Centre, represented by senior government counsel and veteran advocates, emphasised the central government’s constitutional authority to change Jammu and Kashmir’s status, claiming that Article 370 was a temporary provision that should be repealed.
Attorney General R. Venkataramani states that Article 370 aims to integrate Jammu and Kashmir into India constitutionally. He contended that any powers exercised beyond their original purpose were consistent with the spirit of Article 370 and the larger Indian Constitution. He also claimed that Jammu and Kashmir had no special status under the Constitution, describing its Constitution as merely a statute for internal governance.
Senior advocates Tushar Mehta and Rakesh Dwivedi claimed that the Jammu and Kashmir Constituent Assembly was subservient to the Indian Constitution. Mehta also stated that the Constituent Assembly and the Legislative Assembly of Jammu and Kashmir were a synonym and co-equal in their context. According to senior advocate Mahesh Jethmalani, the Union government has complete sovereignty over Jammu and Kashmir. According to senior advocate V. Giri, the Jammu and Kashmir Constituent Assembly lost significance after the Jammu and Kashmir Constitution was drafted.
Tushar Mehta argued that Article 370 was intended to be temporary, with the goal of fully integrating Jammu and Kashmir into India. Senior advocate Harish Salve argued that Article 370 should not be interpreted solely on the basis of its text; given its context and history, the President had the authority to repeal it without the Jammu and Kashmir Constituent Assembly’s recommendation. Venkataramani noted that because the Constituent Assembly had been dissolved, it could not amend Article 370; however, this did not preclude presidential action independent of Article 370(3). Additional Solicitor General K.M. Nataraj contended that federalism did not apply to Article 370.
Mehta argued that Article 35A, revoked in August 2019, discriminated against other Indians by limiting public employment and property rights to permanent residents in Jammu and Kashmir. Mehta stated that Jammu and Kashmir will soon regain full statehood, while Ladakh will remain a union territory. However, he failed to offer a specific timetable. He also stated that the Centre has no plans to revoke other states’ special rights under Part XXI of the Constitution. This reassurance came in response to concerns raised by a former Arunachal Pradesh legislator, represented by advocate Manish Tiwari, who feared that repealing Article 370 would set a precedent for reducing the autonomy granted to Northeastern states under Part XXI and the Sixth Schedule.
RATIONALE
Five senior Supreme Court judges upheld the Union government’s decision to repeal Article 370, which granted special status to Jammu and Kashmir (J&K). CJI D.Y. Chandrachud, on behalf of himself, Justices B.R. Gavai, and Surya Kant, wrote 352 pages of the 476-page judgement. Justice S.K. Kaul wrote 121 pages, and Justice Sanjiv Khanna wrote a three-page concurrence.
The Apex Court ruled that Article 370 was a temporary provision, stating that Jammu and Kashmir lacked internal sovereignty. The court outlined two primary purposes for Article 370 i.e., establishing a Constituent Assembly for J&K to develop its own Constitution and facilitating J&K’s integration into India during the 1947 conflict.
Regarding the governor’s role in assuming legislative powers, the court cited the 1994 SR Bommai v. Union of India case, which confirmed that the governor (or the President, in J&K’s case) may assume “all or any” roles of the state legislature during the President’s rule, with judicial review permitted only in extraordinary cases. The court also decided that the President had the power to unilaterally notify the cessation of Article 370 under Article 370(3) without the state government’s concurrence, as required by the provisos to Article 370(1)(d). This interpretation emphasises the President’s independent authority to act under Article 370.
The court additionally upheld the 2019 Jammu and Kashmir Reorganisation Act, which reorganised J&K and established the Union Territory of Ladakh. It laid out that the state legislature’s reorganisation recommendations are advisory and not legally binding on Parliament. The Chief Justice stated that Parliament’s authority during the President’s term go beyond mere legislating to include executive actions. The court ruled that decisions made by the Union Government on the part of the state during the President’s tenure are not subject to challenge because they could lead to chaos and uncertainty.
The court emphasised the necessity of restoring Jammu and Kashmir’s statehood as soon as possible, ordering legislative assembly elections to be held by September 30, 2024. In a concurring opinion, Justice Kaul proposed establishing a Truth and Reconciliation Commission, similar to South Africa’s post-apartheid commission, to address human rights violations committed by state and non-state actors in Jammu and Kashmir since 1980s.
In this case, the majority ruled that there was no need to consider whether J&K had lost its “character” due to its reorganisation into two Union Territories. The judges relied on Solicitor General Tushar Mehta’s submission, which stated that J&K’s statehood would be restored in due course and would not impact the Union Territory of Ladakh. As a result, they left the issue of determining the contours of Article 3 open to be resolved in a different case where the question arises.
DEFECTS
The Supreme Court relied heavily on historical context, but prioritised Indian constitutional history over Kashmir’s. It emphasised that historical interpretation should take into account the original context and intent. The JKCA ratified J&K’s accession to India in 1954, indicating that it possessed the authority to do so. However, if J&K had fully merged with India by then, the Assembly would not have needed to ratify the accession. This ratification was significant because it addressed challenges to the Instrument of Accession’s validity. The court needed to clarify the JKCA’s powers rather than simply restricting them or reducing their role to a goodwill gesture.
The Supreme Court’s interpretation of Article 370 did not recognise the bilateral nature of its creation and implementation. Article 370 reflects both the Indian Constituent Assembly’s intent to integrate Jammu and Kashmir (J&K) and the state’s desire to maintain autonomy, with the exception of three subjects: defence, foreign affairs, and communications. The court should have explained why it prioritised Indian intent over state intent, particularly given that Article 370 was not authored by the Indian Constituent Assembly. The court disregarded the state’s expectations and misinterpreted post-1953 speeches by J&K politicians aligned with the Indian government, ignoring the important voices of original negotiators such as Sheikh Abdullah. The court also ignored important historical documents and speeches from the Jammu and Kashmir Constituent Assembly on which the petitioners relied. The court’s selective use and distortion of J&K’s constitutional history is troubling, raising concerns about the validity of its interpretation.
The court’s simplistic interpretation of J&K’s constitutional history resulted in a distorted narrative that supports an alternative method for repealing Article 370. The court misinterpreted J&K’s unique status by decontextualising the Proclamation and treating it in the same way as those of other princely states. This misinterpretation gave constitutional legitimacy to the process of revoking Article 370 on August 5, 2019, by effectively justifying the move with an invented historical meaning.
Justice Madan Lokur, one of the Supreme Court’s most respected former judges, recently told Karan Thapar that the court erred and cannot be proud of its Kashmir decision, which upheld the Union government’s move to repeal Article 370. He described the Supreme Court decision as complex and complicated, adding that it is at least 200 pages too long.
Fali S. Nariman, a senior advocate, has criticised the Supreme Court’s decision to convert Jammu and Kashmir from a state to a union territory. In an interview with journalist Karan Thapar, Nariman raised two major concerns: the alteration of the state’s boundaries without the consent of the State Assembly, and the absence of any provision for reducing a state to a UT. He noted the significant area reduction in August 2019, emphasising that proper legislative scrutiny was impossible without a functioning assembly.
Nariman emphasised the need for the President to seek the State Assembly’s approval before introducing bills related to Article 3, emphasising the constitutional distinction between a state and a UT. He also questioned the restoration of statehood, claiming that if the initial abrogation was incorrect, any subsequent actions are irrelevant. Nariman emphasised that the decision was limited to J&K and did not set a precedent for other states. He concluded that the decision was constitutionally flawed, despite its political correctness, and expressed concerns about the decision-making process.
INFERENCE
In conclusion, the repeal of Article 370 was motivated by a variety of factors, including a desire to further integrate Jammu and Kashmir into the Indian Union, strengthen national security, eliminate discrimination, improve transparency and accountability in governance, and promote economic prosperity. While there have been notable positive consequences of this decision, such as a significant decrease in violence, improved economic development, improved infrastructure, and increased tourism, it is critical to acknowledge the criticisms and flaws in the judgement.
One such criticism is that there was no consultation with the people of Jammu and Kashmir prior to the abrogation, which raised concerns about democratic principles and local residents’ rights. Furthermore, the manner in which Article 370 was repealed without the consent of the Jammu and Kashmir Legislative Assembly has sparked debates about constitutional propriety and the balance of power between the central and state governments. Furthermore, there have been reports of human rights violations, as well as concerns about the impact on the region’s cultural and demographic identity.
While the recent Supreme Court decision upholding the abrogation emphasises the principles of ‘Ek Bharat, Shreshtha Bharat’ and the importance of unity and good governance, it also emphasises the need for a balanced approach that takes into account both the people’s aspirations and the constitutional framework. Moving forward, addressing these criticisms and flaws in the judgement will be critical to ensuring that Jammu and Kashmir’s integration and development are achieved in a way that respects democratic principles, protects human rights, and promotes inclusive growth.
Lavanya Awasthi
Dr Ram Manohar Lohia National Law University, Lucknow.