Citation: Writ Petition (Civil) No. 1099 of 2019
Judges: CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Bhushan R Gavai and Justice Surya Kant
Judgement: December 11, 2023
FACTS
The British Raj (rule) was divided in 1947, and the princely kingdoms of India were offered the option to join Pakistan or India. This is where Article 370 got its start. Eventually, an instrument of accession to India was ratified by Hari Singh, the Hindu ruler of Jammu and Kashmir, a state that has a huge Muslim population. The princely states of India were at first free to have their own constitutions, but in 1949, the chief ministers and rulers of the states decided to adopt the Indian constitution for their states. However, the state of Jammu and Kashmir rejected this, and in 1950 Article 370 came into effect, which gave the state a special status and limited the authority of the central government.
The centre, in the year 2019 abrogated this article 370 which provided special arrangements for the governance of the state of Jammu and Kashmir. On 11 December 2023, the supreme court of India upheld the centre’s decision to abolish article 370. Article 370 was repealed by President Droupadi Murmu of India when she issued Constitutional Orders (CO) 272 and 273 during a Proclamation under Article 356(1)(b). The Jammu and Kashmir Reorganisation Act 2019 was passed at the same time by the Indian parliament, through which, the state was divided into 2 union territories which are directly under the control of the central government. The bench, which included Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant in addition to Chief Justice D Y Chandrachud, decided whether or not these measures were lawful.
ISSUES RAISED
The following issues were raised before the court in reference to the petitions filed:
- Whether Article 370’s provisions were temporary in nature or if the Constitution gave them permanent status;
- Whether the removal of article 370 by the president while exercising her authority under article 370(3) is unconstitutional when there is an absence of a recommendation by the State of Jammu and Kashmir’s Constituent Assembly which is a condition mentioned under article 370 clause (3);
- Whether J&K give up any part of its sovereignty when it joined the Indian Union;
- Whether article 356 limits the power of the parliament or the power of the president in any manner;
- Whether the Proclamation issued on 19 December 2018 by the President of India by using her power under article 356 of the constitution constitutionally valid or not;
- Whether 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, during the term of a Proclamation under Article 356 and when the State’s Legislative Assembly is either dissolved or in suspended animation;
- Whether the substitution of the “Constituent Assembly of the State referred to in clause (3) of Article 370 by the words “Legislative Assembly of the State” by the amendment to article 367 in exercise of the president’s power under article 370(1)(d) constitutionally valid or not;
- Whether the bifurcation of the State of Jammu and Kashmir into the Union Territory of Jammu and Kashmir and Union Territory of Ladakh due to Jammu and Kashmir Reorganisation Act 2019 is constitutionally valid or not.
CONTENTIONS
The petitioner argued that after the dissolution of the Constituent Assembly of Jammu and Kashmir, Article 370 took permanent status. Since the Assembly failed to exist in 1957, and Article 370(3) provides that the said Article can only be dissolved based on recommendations made by the Jammu and Kashmir Constituent Assembly, the abrogation of the Article is illegal.
Not only this, the petitioner also stated that the J&K case reveals that the central government cannot take advantage of its power under Article 3 to turn a state into a union territory. Any such modification about the boundaries of the State has to be in line with the state.
The petitioner argued that Article 370 was indirectly repealed by first amending Article 368 of the Indian Constitution and then replacing the term “Legislative Assembly” of J&K for the words “Constituent Assembly.” This substitution amounted to the improper use of authority because it was only implemented following the Constituent Assembly’s dissolution in 1957. Furthermore, as J&K was governed by the President at the time of the Article 370 termination, the Legislative Assembly was not in session even then. As a result, this order was issued on the recommendation of the Parliament rather than the Legislative Assembly of Jammu and Kashmir, which was not authorized to do so.
There are some implied restrictions on the President’s ability to use Clause 3 of Article 370, which deals with revocation of Article 370, when the President issues a proclamation suspending the previous Jammu and Kashmir State Legislative Assembly. The objectives of the Legislature can become biased but this does not happen to the Constituent Assembly, hence a Legislative Assembly cannot become a Constituent Assembly.
Moreover, the argument stated that a merger agreement, similar to those with other princely States, should have been used to carry out the Government of India’s desire to fully bring J&K into India. Records show that there was no carrying out of this merger deal, which gave J&K constitutional independence. Because of Article 370 of the Indian Constitution, the Muslim majority population of Jammu and Kashmir chose to remain a part of India.
RATIONALE
According to CJI Chandrachud, the J&K Constitution and Article 370 both provide enough proof that the surrender of Kashmir’s sovereignty didn’t require a merger agreement.
The State of Jammu and Kashmir “is and shall be an integral part of the Union of India,” as stated specifically in the J&K Constitution. Section 147 made the requirement absolute by stopping any changes to Section 3. He claimed that as a result, the Indian Constitution “became the supreme governing document of the land.”
This article was introduced by the writers of the constitution with the temporary and transitional provisions found in Part XXI. The recommendation of the constituent assembly needs to be interpreted historically, as it was simply a ratification process by the decision of ministry of states and its dissolution can’t supersede the decision of the president to abrogate Article 370. It was also mentioned that to assert that the authority conferred by Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would hinder and eventually stop the process of integration, which contradicts the purpose for which this provision was introduced.
The Bench ruled that the Indian Constitution always had supremacy over the J&K Constitution. As a result of CO 272 and 273, J&K was subject to the same provisions of the Indian Constitution as other states and Union Territories and therefore the Constitution of Jammu and Kashmir remains inoperative.
According to CJI D.Y. Chandrachud, Article 356 does not state that only the legislative power is transferred to Parliament under President’s rule and not the constituent powers. He pointed out that the state’s authority would be reduced if the term “powers of the legislature” were to be considered as to enable Parliament to use all of the Legislative Assembly’s constitutional powers, but the Constitution accepts this limitation of federal authority when the Proclamation under Article 356 is in effect.
The President may make irreversible changes, including the dissolution of the State Assembly,” according to Justice Kaul. He stated that “judicial and constitutional scrutiny” serves as a check on the President’s authority.
DEFECTS OF LAW
Integration and growth: Article 370 hampered Jammu and Kashmir’s full integration into the Indian Union, cultivating a sense of separation and hampering development. Due to full integration, J&K residents would have better access to opportunities, infrastructure, and resources.
Openness and Accountability: The governance of Jammu and Kashmir was not transparent but opaque and the government was not accountable by virtue of Article 370. Better governance and accountability would result from the abrogation, which would place the state under the jurisdiction of the Central Vigilance Commission and the Right to Information Act.
Economic Prosperity: Jammu and Kashmir’s economy was hampered by Article 370. Increased investment, tourism, and job growth in the area would be made possible by the abrogation.
INFERENCE
This ruling demonstrates the court’s dedication to upholding the principles that defines our society and strengthening the foundation of our country.
Following the abolition of Article 370, Jammu and Kashmir has become a Union Territory and has lost its unique status inside the Indian Union.
It has made it possible for Central laws and programs to be implemented throughout the area. This covers the Goods and Services Tax, the Right to Education Act, and other development initiatives.
Restrictions and security measures in the area have also been tightened as a result of the decision. This entails the deploying of extra security personnel, enforcing curfews, and momentarily stopping internet and communication services.
There has been a lot of political discussion and controversy around the abrogation. Some contended that it was an essential step toward Jammu and Kashmir’s unity, while some condemned it for violating the people’s rights and the autonomy of the state.
Justice Kaul suggested that the Union should establish a “truth and reconciliation Commission,” following South Africa’s lead in the years following the end of apartheid. Before memory fades, this Commission needs to be established as soon as possible. We have the biggest obligation to make amends for the generation of youth who have already grown up feeling envious, he mentioned.
The abrogation of Article 370 was a huge decision which not only impacted the State of Jammu and Kashmir but also its people and the whole India. Now, the union of India in its true sense has completed as the supreme judicial body of India i.e. The Supreme Court of India has upheld the decision of the Central Government.
Name: Aarti
College: Army Institute of Law, Mohali