On December 11, the last hope of some people in Jammu and Kashmir was buried after Supreme Court of India delivered its verdict on article 370. After Union Government revoked provisions of Article 370 on August 5, 2019, the political parties in Jammu and Kashmir and some people hoped that the decision would be revoked by Supreme Court since the move was ‘unconstitutional’. The batch of petitions were filed by various individuals and some political parties to challenge the move. However, by September 5, 2023 the Supreme Court heard all the petitions and reserved its verdict. On December 11 the verdict was pronounced and five member bench led by Chief Justice CY Chanderchud declared the move legal and said that the Article 370 was temporary.
The five member Constitution Bench was hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution and bifurcating the state into two Union Territories.
CJI Chandrachud reading out the judgement said that 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.
Supreme Court said that it has held that Article 370 was a temporary provision.
“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 Apex 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.
“We have held that the state of Jammu and Kashmir did not retain an element of sovereignty when it joined the Union of India. We have arrived at this conclusion for the following reasons. First paragraph eight of the instrument of acession executed by Maharaja Hari Singh provided that nothing in the instrument would affect the continuance of the sovereignty of the Maharaja in and over the state,” CJI Chandrachud said.
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 acession 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 ” CJI added further.
The Supreme Court said “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.”
The Court also noted that Article 370 was meant for the constitutional integration of Jammu and Kashmir with the Union and it was not for disintegration and the President can declare that Article 370 ceases to exist.
“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.
The Supreme Court also directed the Election Commission to hold Jammu and Kashmir Assembly elections by September 30, 2024. The Supreme Court said in view of Centre’s submission on restoration of statehood of Jammu and Kashmir, it directs that statehood shall be restored as soon as possible.
On September 5, the apex court reserved the judgement after hearing the arguments for 16 days.
The central government had defended its decision to abrogate Article 370, saying there was no “constitutional fraud” in repealing the provision that accorded special status to the erstwhile state of Jammu and Kashmir.
Attorney General R Venkataramani and Solicitor General Tushar Mehta appeared for Centre.
Senior advocate KapilSibal, 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.
He had contended that the Parliament could not have declared itself to be the legislature of J-K to facilitate the abrogation of Article 370, as Article 354 of the Constitution does not authorise such an exercise of power.
On August 5, 2019, the Central government announced the revocation of the special status of Jammu and Kashmir granted under Article 370 and split the region into two union territories.
Meanwhile, the Supreme Court verdict, drew mixed reactions from a spectrum of top political leaders across the country.
Prime Minister Narendra Modi hailed the verdict saying the judgement was a beacon of hope to build a stronger, more united India.
Calling the verdict ” historic”, Modi said it constitutionally upholds the decision taken by Parliament on August 5, 2019. “It is a resounding declaration of hope, progress and unity for our sisters and brothers in Jammu, Kashmir and Ladakh”.
“Court, in its profound wisdom, has fortified the very essence of unity that we, as Indians, hold dear and cherish above all else”,” he said.
Welcoming the judgement, Union Home Minister Amit Shah said “The Supreme Court’s verdict has proved that the decision to abrogate Article370 was completely constitutional”.
After the abrogation of Article 370, the rights of the poor and deprived have been restored, and separatism and stone pelting are now things of the past, Shah said in a post on X.
“The bonds of unity have strengthened, and integrity with Bharat stands reinforced,” he added.
Over four years after the Modi government revoked Article 370 from Jammu and Kashmir, the Supreme Court during the day upheld the decision in a landmark judgement, saying the Union Territory does not have any “sovereignty” different from other states of the country.
The 5-member Constitution Bench of the top court, headed by Chief Justice of India Justice D Y Chandrachud, said Article 370, which granted special status to Jammu and Kashmir, was a “temporary” feature and the President of India had the powers to abrogate it.
However, Kashmir’s mainstream political parties said they were “disappointed” after the top court’s verdict.
Former Chief Minister and National Conference Vice President Omar Abdullah said the “ struggle” would continue and they were prepared for the “long haul.” “Disappointed but not disheartened. The struggle will continue. It took the BJP decades to reach here. We are also prepared for the long haul. #WeShallOvercome #Article370,” Omar said in a post on X.
Peoples Democratic Party (PDP) chief Mehbooba Mufti said the fight for “honour and dignity” would continue and the SC verdict was not the end of the road.
PDP has decided to suspend all of its political activities for the next one week to stand in solidarity with the people of Jammu & Kashmir in the wake of the Supreme Court Judgment, the party said.
Another former Chief Minister and Democratic Progressive Azad Party chief Ghulam Nabi Azad said people of J&K were not happy with the verdict.
“People of J&K were hopeful … The SC bench was good. …It was a mistake to abrogate Article 370 in August 2019. It was done in a hurry. ..J&K political parties should have been also asked…. The people of Jammu and Kashmir are disappointed with this judgment,” Azad told reporters.
Peoples Conference head Sajad Lone said Article 370 may have been legally obliterated but will always remain a “part of our political aspirations.”
Hurriyat Conference Chairman Mirwaiz Umar Farooq said the Supreme Court’s verdict was “sad” but not “unexpected”.“370 verdict sad but not unexpected. Those people who at the time of the partition of the subcontinent, facilitated the accession of J&K and reposed their faith in the promises and assurances given to them by the Indian leadership must feel deeply betrayed,” Mirwaiz posted on X.
Senior Congress leader and MP P Chidambaram said, prima facie his party ‘disagree(s)’ with the judgment on the manner in which it was abrogated in the erstwhile state of Jammu and Kashmir.
“We respectfully disagree with the verdict. Article 370 deserved to be honoured,” he said.
At a press conference held at AICC headquarters here, Chidambaram said, “We reiterate the CWC resolution that Article 370 deserved to be honoured until it was amended strictly in accordance with the Constitution of India.”
Uttar Pradesh Chief Minister Yogi Adityanath welcomed the verdict and said that it will strengthen the spirit of ‘Ek Bharat, Shreshtha Bharat’.
Taking to X, the Chief Minister wrote, “The decision given by the Honourable Supreme Court regarding Article 370 and 35 A is commendable. This is going to strengthen the spirit of ‘Ek Bharat-Shreshtha Bharat’.”
Communist Party of India (Marxist) said the Supreme Court verdict on Article 370 is ‘disturbing’ and it will have ‘serious consequences’ for the federal structure of the constitution.
In a statement, the CPI(M) Politburo said the verdict of the Supreme Court dismissing the challenges to the abrogation of Article 370 and dissolution of the state of Jammu and Kashmir is disturbing.
“It has serious consequences for the federal structure of our Constitution which is one of its fundamental features”, the statement said.
Jammu and Kashmir Apni Party in a statement said the verdict has “deeply saddened” the people of the Union Territory.
Arunachal Pradesh Chief Minister Pema Khandu hailed the judgement.
He said the historic decision to abrogate Article 370 on August 5, 2019, under the leadership of PM Narendra Modi, has paved the way for peace and development in Jammu & Kashmir and Ladakh.
Salient Points of the judgment of the Five-Judge Constitutional Bench in Re: Article 370
Jammu and Kashmir did not enjoy any shred of sovereignty:
- The Instrument of Accession gave no sovereignty over the state.
- Proclamation of 25 November 1949 issued by Yuvraj Karan Singh made clear that Constitution of India would prevail over the State Constitution.
- Instrument of Accession lost its significance once Yuvraj Karan Singh issued the proclamation of 25 November 1949.
- The relationship of the State with the Union of India was governed primarily by the Instrument of Accession and the Proclamation. State Constitution was only to further define that relationship.
- The State Constitution coupled with Article 1 of the Constitution of India indisputably shows that the State was subordinate to the Indian Constitution.
Constitutional Validity of C.O. 273:
- Text and history demonstrate that Article 370 was a temporary provision. First, it was inserted for a transitional purpose of ratifying the Indian Constitution. Second, it bore a temporary purpose of laying down an interim arrangement because of the ongoing war in the State.
- President had the power to make Article 370 inoperative even after the dissolution of the State Constituent Assembly. Constituent Assembly of the State was a temporary body set up for a specific and limited purpose of framing the State Constitution. When the Constituent Assembly was dissolved, the other special circumstances ( War) of the State that led to the insertion of Article 370 continued. For these reasons, President retained his powers to end Article 370.
- Overall purpose of Article 370 was constitutional integration. It cannot be said that with the dissolution of the State Constituent Assembly, the process of State’s integration with the Union of India was frozen. Such an approach would be contrary to the very purpose of Article 370.
- Ending Article 370 was a policy decision. Court cannot second-guess the decision of the President and the special circumstances he considered when he de-operationalized Article 370.
Constitutional validity of C.O. 272
- Extension of the entire Constitution of India to the State of Jammu and Kashmir was a constitutionally valid exercise of power.
- The concurrence and consultation with the State Government is not needed when the Constitution of India is extended to the State without any exception or modification. In other words, concurrence and consultation would come into the picture only when a constitutional provision is applied to the State in a modified form.
Status of the Constitution of Jammu and Kashmir
- The wholesale application of the Constitution of India to the State of Jammu and Kashmir meant that Constitution of State of Jammu and Kashmir was rendered completely inoperative.
Constitutional validity of the reorganization of State of Jammu and Kashmir into two Union Territories of Jammu and Kashmir & Union Territory of Ladakh
- Question left open in view of the assurance of the Central Government that statehood would be restored to Jammu and Kashmir and its status as UT is temporary.
- UT status of Ladakh to remain unaffected by the restoration of the statehood of Jammu and Kashmir.
- Status of Ladakh as a Union Territory is upheld. Article 3 permits the formation of a Union Territory.
