In Re Article 370 judgment: Supreme Court ratifies one vidhan, pradhan and nishan

A five-judge Constitution Bench held that the power of the President to issue Proclamations ending the special status of limited autonomy of J&K have not been exceeded and the Proclamations are not mala fide. It, however, ruled against the amendment to Article 367 that replaced the words "Constituent Assembly" with the words "legislative assembly", cautioning against the dangers of such an exercise.

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TODAY, the Supreme Court, in In Re Article 370, upheld the August 5, 2019 Union government's exercise that ended the special status of Jammu and Kashmir (J&K).

With this, the abrupt and unilateral termination of a unique arrangement of "asymmetric federalism" in a post-colonial country has received affirmation from the highest court of the land.

In August this year, a Constitution Bench headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud and also comprising S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant heard a batch of petitions challenging the Union government's decision to deoperationalise Article 370 of the Indian Constitution and bifurcate the state into two Union territories.

The court began its hearing on August 2 and reserved judgment on September 5 after hearing the case for a marathon 16 days.

The judgment comprises an opinion authored by the CJI for himself and Justices Gavai and Surya Kant, a concurring opinion by Justice Kaul and another concurring opinion by Justice Sanjiv Khanna.

Background

Article 370 (Article 306A of the Draft Constitution) falls under Part XXI of the Indian Constitution and is termed as 'temporary provisions with respect to the State of Jammu and Kashmir'.

On July 18, 1947, when the British Parliament passed the Indian Independence Act, 1947 two sovereign nations, India and Pakistan, were carved out of the British territory in the subcontinent.

The subcontinent also had 584 Princely States under British suzerainty. J&K was one of them.

The Princely States were given a choice to accede to either India or Pakistan through instruments of accession. The last Dogra Maharaja of J&K, Maharaja Hari Singh, initially wanted to remain independent, but then signed an Instrument of Accession with India once his government came under challenge by the Muslim majority of his State.

The Instrument of Accession restricted the legislative powers of India with regard to J&K to three subjects: defence, external affairs and communications. It laid down that the accession shall not be deemed as "acceptance of any future Constitution of India" by J&K.

The conditions laid down in the Instrument of Accession were inculcated into the Indian constitutional scheme through Article 370.

Article 370(1)(b)(i) provided that the Indian Parliament shall have the power to make laws on subjects corresponding to the ones provided for in the Instrument of Accession in "consultation" with the "Government of the State".

Article 370(1)(b)(ii) provided that the Indian Parliament shall have the power to make laws on other subjects in "concurrence" with the "Government of the State".

Article 370(2) mentioned the "Constituent Assembly" for the purpose of drafting a Constitution for J&K, underlining the unique arrangement between India and J&K, where each would have its own Constitution.

This Constitution of J&K was finally drafted and came into operation on November 17, 1956.

Article 370(3) provided for making Article 370 inoperative or making it operative only with such exceptions and modifications by the President of India but only on a "recommendation" of the "Constituent Assembly of the State".

In 1952, the Delhi Agreement was signed between the governments of India and J&K. The agreement was significant because while it reiterated that the Indian Parliament would exercise unconditional powers to legislate over the three subjects provided for in Instrument of Accession, it vested residuary powers with the J&K legislature.

It provided that although domiciled people of J&K will be recognised as citizens of India under Article 5 of the Indian Constitution, the J&K legislature will have the power to confer special rights and privileges considering the concept of hereditary State subjects under the 1927 notification.

It recognised the position of Sadar-i-Riyasat (President of the State), to be elected by the J&K legislature and the "peculiar position" because of which Part III of the Indian Constitution could not be made wholly applicable to J&K.

Subsequent to this agreement, the Constitution (Application to Jammu and Kashmir) Order, 1954 (CO 48) was issued by the then President of India Rajendra Prasad in concurrence with the government of J&K.

A proviso was added to Article 3 of the Indian Constitution stating that no Bill altering the name or boundary of J&K shall be introduced in the Indian Parliament without the consent of the J&K legislature.

Article 35A was also introduced in the Indian Constitution which gave exclusive rights to own and acquire immovable property and to have government jobs in J&K to 'hereditary State subjects'.

Sadar-i-Riyasat was recognised as "Governor" of J&K under the Indian Constitution through insertion of Article 367(4).

On August 5, 2019, CO 48 was superseded by (Application to Jammu and Kashmir), Order 2019 (CO 272).

CO 272 states that all provisions of the Indian Constitution, as amended from time to time, and with exceptions and modifications shall apply to J&K.

It was introduced using Article 370(1)(d), which gave the President of India this power subject to "consultation" with the "Government of the State" for matters relating to defence, communications and foreign affairs and "concurrence" of the "Government of the State" for all other matters.

An Explanation in Article 370 defines "Government of the State" as one recognised by the "President of India on the recommendation of the legislative assembly of J&K as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the council of ministers of the state for the time being in office".

Since J&K was under President's rule, the "Governor" was deemed to have the power to make this recommendation.

Thereafter, an amendment was introduced to Article 367(4) by which Clause (d) provided that a reference to "Constituent Assembly of the State" in Article 370(2) of the Indian Constitution would be read as "legislative assembly of the State". Since the legislative assembly had been dissolved, the Order said any reference to the legislative assembly was a reference to the "Governor" and since the "Governor" was an appointee of the Union government, the Parliament now stood for the state legislative assembly.

By bringing a change to Article 367, Article 370 was essentially amended.

Another statutory resolution was moved in the Indian Parliament under Article 370(1) read with Clause (3) which provided that all clauses of Article 370 shall cease to be operative.

On August 6, 2019, the Indian President issued a Presidential Order (CO 273), wherein as and from August 6, 2019, all clauses of Article 370 ceased to be operative.

The Jammu and Kashmir Reorganisation Bill, 2019 was also introduced in the same passage of Lok Sabha proceedings.

The Bill bifurcated J&K into two new Union territories namely J&K and Ladakh, where the former retained a legislative assembly. The Bill was subsequently passed on August 9, 2019.

Judgment in brief

The following were the major questions determined by the Bench, as read by the CJI.

Whether the Proclamation issued under Article 356 of the Constitution of India and Section 92 of the Constitution of J&K is constitutionally valid.

Held that the court need not adjudicate on the validity of the proclamation because firstly it was not the principal challenge and the petitioners did not challenge it until the deoperationalisation of Article 370. Secondly, the court held that it could not give any material relief even if it held that the Proclamation could not be issued as President's rule in J&K ended on October 31, 2019.

Whether there are limitations on the exercise of power by the President and the Parliament of India under Article 356

The court rejected the arguments of the petitioner that under President's rule, no irreversible changes could be made. The court interpreted the powers exercised by the President under Article 356(1)(b) to state that the legislative powers extend to non-law making powers and any interpretation otherwise would be limiting the interpretation of Article 356.

Relying on S.R. Bommai vs Union Of India, the court held that actions taken by the President after issuing a Proclamation are subject to judicial review, subject to Justice P.B. Sawant's test whether the exercise of such power was "mala fide and palpably irrational" and Justice Yogeshwar Dayal Reddy's test of "advisibility and necessity" of the actions of the President. Held that the five-judge Bench is bound by the nine-judge Bench of Bommai.

Part XVIII of the Constitution of India read as a whole provides that differing levels of executive and legislative power are required to handle an emergency under Articles 352 and 356. This principle applies to the exercise of power when a Proclamation under Article 356 is in force, the Bench observed.

The court held that mala fide intention was not established and the exercise of power by the President under Article 356 had a reasonable nexus with the object of the Proclamation.

The court also held that the power of the Parliament under Article 356(1)(b) to exercise the powers of state legislature cannot be restricted to law-making power.

In this context, the court held that the Proclamations CO 272 and 273 are valid exercise of powers. 

Whether the State of J&K retained an element of sovereignty when it joined India

The court held that J&K did not retain an element of sovereignty including internal sovereignty after accession to India. It referred to paragraph 8 of the Instrument of Accession whereby it was stated that nothing in the instrument would affect the continuance of the sovereignty of the maharaja.

The court stated that the declaration in a Proclamation issued by Yuvraj Karan Singh on November 25, 1949 for the State of J&K that the Constitution of India would supersede and abrogate all other constitutional provisions in the State which were inconsistent with the Constitution of India achieved what would have been attained by an agreement of merger.

Paragraph 8 of the Instrument of Accession ceased to be of legal consequence, whereby a full and final surrender of the sovereignty of J&K took place, the court held.

The court also held that there is a clear absence of a reference to sovereignty in the Constitution of J&K, unlike India, which has such a reference, the Court held.

Lastly, the court stated that Article 370 is not a reflection of sovereignty but asymmetric federalism. The Constitution of India is a complete code of governance and the Constitution of J&K has become inoperative and redundant.

Whether Presidential Orders CO 272 and CO 273 are constitutionally valid

On the constitutionality of CO 273, the court held that Article 370 is a temporary provision considering the placement of the provision in Part XXI, marginal note and a harmonious reading of Articles 1 and 370 of the Indian Constitution which makes J&K an integral part of India. The court came to this conclusion by reading the historical context in which Article 370 was added.

The court said that Article 370 had two purposes. First, 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, because of the special circumstances that existed because of "war conditions".

Second, the court held that even after the dissolution of the Constituent Assembly of J&K, the power of the President to deoperationalise the Article under Article 370(3) subsists and could be exercised "unilaterally".

The court further stated that the Constitution of J&K had no other purpose other than integrating the State with India and defining the relationship between the two.

In this regard, the court held that the CO 272 is constitutionally valid.

Further, the court upheld the constitutionality of CO 273 on the grounds that it was a valid exercise of powers under Article 370(1)(d).

On the application of Article 370(1)(d) to extend the provisions of the Indian Constitution, the court held that there is no need for the concurrence of the state of J&K. It stated that the process followed to exercise powers under Article 370(3) is the same to be followed under Article 370(1)(d).

Further, it said that the provision was used to integrate J&K to India and any limitations on the same would be "freezing the process of integration".

Whether Article 370 could be amended through Article 367 

The court has held that paragraph 2 of the Presidential Order CO 272 is ultra vires Article 370(1)(d) because modifies Article 370 through the circuitous process of amendment initiated through Article 367 without following the procedure under Article 370.

An interpretation clause cannot be used to bypass the procedure laid for amendment, the court held.

Whether the J&K Reorganisation Bill is constitutionally valid

The court held that it need not go into the constitutional validity of the Reorganisation Bill because the Solicitor General of India Tushar Mehta had assured the court that the Union territory status of J&K is temporary. However, it upheld the status of Ladakh as a Union territory by a reading of Article 3(a) read with Explanations. 

Whether the exercise of power by the President of India under Article 370(1)(d) is mala fide

The court held that the exercise of power by the President of India under Article 370(1)(d) to issue CO 272 is not mala fide. The President, under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist., the court held.

The court also held that the President did not need to secure the concurrence of J&K or the Union government acting on behalf of the state government under the second proviso to Article 370(1)(d) while applying all provisions of the Indian Constitution to the state of J&K because such an application of power is indistinguishable from the power granted under Article 370(3) for which the concurrence of the state government was not required.

Elections in Union territory of J&K 

While the court stated that the statehood should be restored as soon as possible, it directed that elections to the legislative assembly of J&K be held by September 30, 2024.

Justice Khanna's concurring opinion

Justice Khanna concurred with the majority and Justice Kaul's opinion and added, "The abrogation of Article 370 does not negate [India's] federal structure as citizens living in J&K will enjoy the same rights as given to citizens in other parts of the country."

He concurred that the use of Article 367 to amend Article 370 was ultra vires, but said the action can be sustained in view of the corresponding power under Article 370(1)(d).

Justice Kaul's concurring opinion

In his concurring opinion, parts of which he read, Justice Kaul concurred with the application of Article 356 and Article 370 being a temporary provision, although he made a reference to J&K retaining a measure of internal sovereignty post-Article 370's induction.

A Kashmiri Pandit himself, Justice Kaul said he has relied on Kalhana's Rajatarangini and P.N.K. Bamzai's Culture and Political History of Kashmir to provide a short history of J&K and the mass migration of Kashmiri Pandits from J&K in 1989.

"What is at stake is not just to prevent the recurrence of injustice, but the burden of restoring the region's social fabric on what is has historically been based," he averred.

He called for the formation of a Truth and Reconciliation Commission in the region before "memory escapes".