2023 INSC 1058
Bench:
CJI D.Y. Chandrachud, Justices S.K. Kaul, B.R. Gavai, Sanjiv Khanna, and Surya Kant
Facts:
- After the partition of India, which was done on the basis of religious identities, the Hindu Raja Hari Singh of Kashmir which was a Muslim-majority state made the decision to sign a standstill agreement during the politically unsettled times.
- Maharaja Hari Singh was forced to sign the Instrument of Accession, which gave India jurisdiction over the matters of Foreign Affairs, Communications and Defence due to continuous guerrilla attacks from West Pakistan.
- Amid these events, Art. 370 emerged in 1950, exempting Jammu and Kashmir from all constitutional provisions except Articles 1 and 370, requiring state consent for amendments.
- On August 5, 2019, India’s President Ram Nath Kovind issued a Presidential Order i.e. C.O. 272, to amend Article 367 to interpret the Constitution.
- The amendment made a major change that was the reference from ‘Constituent Assembly’ to ‘Legislative Assembly’ in Art. 370(3).
- Before this, it was only possible to amend the Art. 370 by one way which was with the recommendation of the State’s Constituent Assembly.
- C.O. 272 paved the way for the Union Government to amend Art. 370 without the pre-requisite of the recommendation.
- At that time, the state was under the President’s Rule, due to which the powers of the Legislative Assembly were transferred to the Union Parliament.
- The Upper House recommended abrogating Art. 370 via a Statutory Resolution shortly after C.O. 272 was issued.
- On the 6th of August, 2019, the then President Ramnath Kovind issued another Proclamation i.e. C.O. 273, which implemented the recommendation given by Rajya Sabha.
- Art. 370 was effectively nullified, except for the 1st clause as per which, the Indian Constitution applies to J&K.
- This move eliminated the special status which J&K had held for over 6 decades.
- Manohar Lal Sharma, an advocate, filed a petition that essentially challenged the constitutionality of the removal of Art. 370 from being in force on the same day.
- On August 9, 2019, the Union Parliament ratified the Jammu and Kashmir Reorganisation Act, 2019, which divided the state into two UTs: Jammu and Kashmir, and Ladakh, out of which only J&K retained a legislative assembly.
- Additionally petitions under Art. 3 were filed by Advocate Shakir Shabir and leaders of the Jammu and Kashmir National Conference – Mohammed Akbar Lone and Hasnain Masoodi.
Issue raised:
- Whether Art. 370 was a temporary provision or it acquired a permanent status within the Constitution?
- Whether the substitution of “Constituent Assembly of the State” with “Legislative Assembly of the State” under Article 367 is to be considered constitutionally valid or not?
- Whether the Indian Constitution could be extended to the state of Jammu and Kashmir under the powers conferred by Article 370(1)(d) in its entirety?
- Whether the abrogation of Art. 370 without any recommendations from the Constituent Assembly of Jammu and Kashmir is a constitutionally valid step?
- Whether the dissolution of the Jammu and Kashmir Legislative Assembly by the Governor was constitutionally sound?
- Whether the Proclamation of the President under Art. 356 and its subsequent extensions were constitutionally justified?
- Whether the Jammu and Kashmir Reorganisation Act, 2019, comply with the provisions given under Article 3 regarding the state legislature’s role in altering state boundaries?
- Whether the conversion of J&K from a State to a UT during a Presidential Proclamation under Article 356 is a valid exercise of power?
Contentions:
Petitioners
The petitioners were represented by several senior advocates of the Supreme Court such as Kapil Sibal, Gopal Subramaniam, Rajeev Bhawan, and Dinesh Dwivedi.
The petitions primarily contest the constitutional validity of the Presidential Orders and the resulting division of the State of Jammu and Kashmir into two UTs.
The petitioner side invoked the doctrine of colourable legislation, claiming that the President effectively amended Article 370, a fundamental constitutional provision, by bypassing the need for the approval of the Constituent Assembly of the state of Jammu and Kashmir. This was reportedly accomplished by replacing “Constituent Assembly” with “Legislative Assembly.”
Furthermore, the petitioners also contended that the Jammu and Kashmir Reorganisation Act, 2019, contravenes Article 3 of the Indian Constitution. While recognizing the power held by the parliament to form new states and alter the boundaries of the states, they argue that this authority does not extend to downgrading a federal state to a less representative Union Territory.
Central to the petitioners’ argument is the proposition that a federal democracy inherently guarantees a fundamental right to autonomous self-governance, particularly concerning constitutional and political status. They maintain that such a right, enshrined under Part III of the Constitution, cannot be abrogated without adhering to the prescribed legal procedures.
Respondent:
The Centre, represented by senior counsel, emphasized its constitutional authority to change Jammu and Kashmir’s status, arguing that Art. 370 was just a temporary provision meant to be repealed. Attorney General R. Venkataramani contended that Art. 370 aimed at integrating Jammu and Kashmir into India and that any extended powers were consistent with this goal. He asserted that the state did not have a special status and that its own Constitution was just for internal governance.
Senior advocates Tushar Mehta and Rakesh Dwivedi stated that the Constituent Assembly of J&K was subservient to the Constitution of India. Mehta equated the Constituent Assembly with the Legislative Assembly. Mahesh Jethmalani claimed the Union government had complete sovereignty over Jammu and Kashmir, while V. Giri noted that the Constituent Assembly lost significance after drafting the state’s Constitution.
Mehta argued that Article 370’s temporary nature aimed at full integration into India. Harish Salve contended the President could repeal it without the Constituent Assembly’s recommendation. Venkataramani added that the dissolved Assembly couldn’t amend Article 370, allowing presidential action. K.M. Nataraj argued federalism didn’t apply to Article 370.
Mehta criticised Article 35A, revoked in 2019, for discriminating against other Indians. He mentioned that Jammu and Kashmir would soon regain statehood, while Ladakh would remain a union territory, without a timeline. He reassured that the Centre had no plans to revoke the special rights of other states, addressing concerns from a former Arunachal Pradesh legislator about potential impacts on Northeastern states.
Rationale:
The Supreme Court, in a unanimous 5-0 decision, upheld the Centre’s act of abrogation of Article 370 of the Indian Constitution on 11th December 2023.
It was held that the State of J&K did not have any semblance of sovereignty but just enjoyed special autonomy, thereby overruling the prior decision given in Prem Nath Kaul to that extent.
It was determined that the said Article was a temporary provision intended to address specific historical circumstances and did not become permanent when the Constituent Assembly dissolved. The Court asserted – interpreting Art. 370(3) as inoperative post-dissolution would hinder the full integration of the State, contrary to the provision’s purpose. The President of India could exercise powers under Art. 370(3) even after the Constituent Assembly is dissolved to facilitate the full merger of J&K into India.
The Court rejected the Petitioners’ argument as per which Article 356 only permitted the transfer of legislative, not constitutive, powers to Parliament, holding that no such distinction existed under Article 356. It declared Constitution Order (C.O.) 272 unconstitutional to the extent it replaced “Constituent Assembly” with “Legislative Assembly” in Art. 367, noting that substantial amendments require the concurrence of the State Assembly under Art. 370(1)(d). However, the Court ratified the abrogation of Article 370 and the application of the whole Indian Constitution to J&K, as within the President’s powers.
Defects in the law:
Any judgment holds significant importance in the evolution of law, yet there are instances where critical aspects may be overlooked.
A notable critique centres around the fact that there was no prior consultation with the people of J&K before this abrogation, which has engendered apprehensions regarding the adherence to democratic tenets and the safeguarding of the rights of local inhabitants.
Justice Madan Lokur, a senior judge of the Supreme Court of India, rightly highlighted several issues in an interview with Karan Thapar from The Wire. He pointed out that the case was not as complex as the judgment made it appear, suggesting that it could have been equally effective even if 200 to 250 pages were removed.
The SC observed that both of proclamations issued by the President and Governor were under a challenge but did not address the dissolution of the Assembly. The absence of a recorded fact regarding the Assembly’s dissolution creates ambiguity, implying that the Assembly was dissolved since directions for elections were given. Additionally, the Supreme Court did not examine the initial proclamation issued by the Governor following the Chief Minister’s resignation, leaving a significant gap in the legal scrutiny of the procedural steps that led to the infamous abrogation.
There wasn’t any discussion during the hearings about the imposition of the Governor’s Rule, even after a political party leader claimed they were in a position to form the government. The reasoning provided for this oversight was that only subsequent events were challenged, not this one. However, this does not negate the necessity to address the challenge to the proclamation itself. Concerning the presidential proclamations, the Supreme Court stated they would not examine this issue. The Governor’s Rule was imposed around June 20, 2019, and the constitutional orders under challenge were issued on August 5, 2019. This period provided ample time for the formation of a government, yet this crucial aspect was not adequately considered in the judgment.
Inference:
This judgment shall undoubtedly be regarded as one of the most landmark decisions in recent history, conclusively addressing the longstanding issue surrounding Article 370. The late Dr Syama Prasad Mookerjee once asserted, “Ek desh me do Vidhan, do Pradhan aur do Nishan nahi chalenge” (One nation can’t have two constitutions or two PMs or two flags).
In a country like India, where the principle prevails that states, though divided for better governance, do not possess complete autonomy, and amidst this, the existence of a state with its constitution, flag, and separate set of rules for a particular state is fundamentally incongruent with our national ideology. Since the abrogation of Article 370, there has been a marked increase in the presence of security and actions taken by central agencies such as the NIA, resulting in a significant decline in stone-pelting incidents i.e. from 618 cases in 2019 to a lesser number of 222 in 2020. Furthermore, law and order in Jammu and Kashmir have improved substantially, with only 20 such incidents reported in 2022.
The region has experienced a reduction of 32% in terrorist activities between August 2019 and June 2022, compared to the prior ten months. The strategic plan for achieving a “zero-terror incident” in Jammu and Kashmir, initiated in 2020, is anticipated to succeed by 2026. Consequently, the newly formed Union Territory is progressing significantly towards peace, development, and growth.
Based on the available statistics, it is clear that the government’s decision has been overwhelmingly favourable for both Jammu and Kashmir and India as a whole.
- Aastha Garg
(University of Petroleum and Energy Studies)