A Supreme Court Constitution Bench led by Chief Justice of India, DY Chandrachud ruled the abrogation of Article 370, which granted special status to Jammu and Kashmir, as valid.
The Supreme Court was hearing petitions challenging the scrapping the special status of the erstwhile state of Jammu and Kashmir and split it into union territories, including Ladakh.
In addition to upholding the Centre’s 2019 decision, the Supreme Court also directed the Election Commission of India to hold Jammu and Kashmir assembly elections by September 30, 2024.
The apex court observed that Article 370 was a temporary provision ‘enacted due to wartime conditions in J&K and served a transitional purpose.’
‘The proclamation of Maharaja stated that the Constitution of India will supersede. With this, the para of Instrument of Accession ceases to exist….Article 370 was an interim arrangement due to war conditions in the State. Textual reading also indicates that Article 370 is a temporary provision,’ the court said.
The court also mentioned that the argument of petitioners that the Union government cannot take actions of irreversible consequences in the state during Presidential rule is not acceptable.
The CJI further noted that on November 25, 1949, a proclamation was issued for the State of Jammu and Kashmir by ‘Yuvraj Karan Singh.’
‘The declaration on this proclamation, that the Constitution of India would not only supersede all other constitutional provisions in the state, which were inconsistent with it, but also abrogate them, achieves what could have been attained by an agreement of merger. With the issuance of the proclamation, paragraph of the instrument of accession ceases to be of legal consequence. The proclamation reflects the full and final surrender of sovereignty by Jammu and Kashmir through its sovereign ruler to India.’ the CJI added.
The apex court also observed that Article 370 was meant for the ‘constitutional integration of Jammu and Kashmir with the Union.’
‘It was not for disintegration and the President can declare that Article 370 ceases to exist,’ it added.
The Supreme Court also observed, ‘The declaration issued by the President exercises the power and clause 3 of Article 370 is a culmination of the process of integration. Thus, we do not find that the President’s exercise of power under Clause 3 of Article 370 was malafide. We hold the exercise of Presidential Power to be valid.’
Concurrence of the State government was not required, says SC
The court held that J&K did not retain any internal sovereignty after its integration and that the concurrence of the State Government was not required to apply the Indian Constitution to the State.
‘Concurrence of the State government was not required to apply all provisions of the Constitution using Article 370(1)(d). So, the President of India taking the concurrence of the Union government was not malafide,’ the court noted.
On September 5, the top court had reserved its verdict regarding the abrogation of article 370, after hearing initial arguments for 16 days.
The Centre had defended its decision, saying there was no ‘constitutional fraud’ in repealing the provision. Attorney General R Venkataramani and Solicitor General Tushar Mehta represented the Centre.
Senior advocate Kapil Sibal, appearing on behalf of the petitioners, had opened the arguments, saying Article 370 was no longer a ‘temporary provision’ and had assumed permanence, post the dissolution of the Constituent Assembly of Jammu and Kashmir.
The Bench pronounced three verdicts, CJI DY Chandrachud for himself and Justices Gavai and Surya Kant. Justices SK Kaul and Sanjiv Khanna authored two separate concurring judgments.
CJI Chandrachud, reading out the judgment, said every decision taken by the Centre on behalf of a state under proclamation can’t be subject to a legal challenge and it will lead to the administration of the state to a standstill.
SC directs establishment of ‘Truth and Reconciliation Commission’ to probe human rights violations
Justice S.K. Kaul in his concurring judgment recommended the constitution of an impartial ‘Truth and Reconciliation Commission’ to investigate and report on the violations of human rights both by the State and non-state actors since the 1980s.
The Commission has been tasked to suggest measures for reconciliation.
Justice S.K. Kaul in his concurring verdict directed the setting up of the commission to probe human rights violations both by the State and non-State actors.
He added that the Commission should not turn into a criminal court and must offer a platform for dialogue instead.
Re-organization of J&K
In light of Solicitor General Tushar Mehta’s submission that the government plans to restore J&K’s statehood as soon as possible, the court did not adjudicate upon the validity of the re-organization of J&K into a Union Territory.
It upheld the carving out of Ladakh as a Union Territory though.
The court also directed the Election Commission of India to take steps to conduct elections to the J&K Legislative Assembly by September 30, 2024.
The Supreme Court ruling can be seen as a big boost for Prime Minister Narendra Modi and the Bharatiya Janata Party ahead of the 2024 Lok Sabha elections.