President has power to remove Art. 370. After accession, J & K has lost all sovereignity and Indian Constitution is fully applicable. The Supreme Court on December 11 upheld the validity of the Union Government’s 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution. The court held that the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian Constitution to the State of J&K.
It was held that Article 370 was a temporary provision. The court directed for the Union to restore the statehood of J&K as soon as possible but left the issue of the reorginazation of J&K into Union Territory (UT) open. Further, the reorganisation of Ladakh as UT was upheld. The “Constitution bench” of the Supreme Court, led by Chief Justice of India DY Chandrachud and composed of Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, pronounced the judgement. The Apex Court had reserved the judgement in the matter on 5 September 2023 after hearing it for sixteen long days. It may be recalled that the petitioners in the matter had also challenged the J&K Reorganization Act which bifurcated the State into Union Territories of J&K and Ladakh.
There were three judgements in the matter- one by CJI DY Chandrachud for himself and for Justices Gavai and Surya Kant. The second was a concurring opinion authored by Justice SK Kaul. Justice Sanjiv Khanna concurred with both the judgements.
Issues Framed By The Court : 1. Whether provisions of Article 370 were temporary in nature or whether they acquired status of permanence?
2. Whether amendment to Article 367 an exercise of power under Article 370(1) (d) so as to substitue the reference to ‘constituent assembly’ by ‘legislative assembly as State’ constitutionally valid?
3. Whether entire Constitution of India could have been applied to J&K under Article 370(1)?
4. Whether abrogation of Article 370 by President invalid for lack of recommendation of J&K Constituent Assembly as mandated by proviso to clause (3)?
5. Whether the proclamation of the Governor dissolving the legislative assembly of the state constitutionally valid?
6. Whether Proclamation of Presidential rule imposed in December 2018 and subsequent extensions valid?
7. Whether the J&K Reorganisation Act 2019 bifurcating the State into two Union Territories constitutionally valid?
8. Whether during the tenure of proclamation under Article 356 and when the legislative assembly of the State is dssolved, the status of J&K an its conversion into UT valid exercise of power? Conclusions Reached By Court
1. Court Need Not Adjudicate On Validity Of President’s Rule The court held that it need not adjudicate on the validity of the presidential proclamations announcing President’s Rule in the State since petitioners did not challenge the same. In any case, the court found that no material relief could be given as the President’s Rule was withdrawn in October 2019.
2. Every Decision Of Union When State Is Under President’s Rule Cannot Be Challenged The court held that there are limitations on power of the Union and States when proclamation of presidential rule was in force. It stated that the scope of the power of Union depends on the circumstances. The court added that the exercise of power under Article 356 must have a reasonable nexus with the object of the proclamation. Further, the court stated that there were innumerable decisions taken by Union on behalf of States. Thus, it added, “Every decision taken by Union on behalf of State during Presidential rule not open to challenge…this will lead to the administration of state to a standstill…” The court rejected the argument of petitioners that Union cannot take actions of irreversible consequences in the State during Presidential rule. Further, the argument of the petitioners that the Parliament can only make the law-making powers of the State when the Presidential rule was in force was also not accepted. However, the court held that the exercise of Presidents’ power after the proclamation are subject to judicial review. It was held that the power of Parliament under Article 356(1) to exercise powers on behalf of State assembly was not restricted to law making powers.
3. Jammu and Kashmir Did Not Retain An Element Of Sovereignty When It Joined the Union of India The court stated that the Proclamation of Maharaja stated that the Constitution of India will supersede. With this, the court added that the paragraph of Instrument of Accession ceased to exist. The court stated that the constitutional set up did not indicate that Jammu and Kashmir retained sovereignty. The CJI stated- “All States in the country have legislative and executive power, albeit to differing degrees. Article 371A to 371J are examples of special arrangements for different states. This is an example of asymmetric federalism.” It added that Article 370 was a feature of asymmetric federalism and not sovereignty.
4. Article 370 Is A Temporary Provision The CJI, in his judgement stated that Article 370 was held to be a temporary provision on a historical reading, as per which it was a transitory and temporary provision. The court added that the power of the President under Article 370(3) to issue a notification that Article 370 ceases to exist subsists even after the dissolution of the J&K Constituent Assembly. As per the judgement, the recommendation of the Constituent Assembly was not binding on the President. It stated that the J&K Constituent Assembly was intended to be a temporary body. When the constituent assembly ceased to exist, the special condition for which 370 was introduced ceased to exist but the situation in the state remained and thus the article continued. The court found that holding that the power under Article 370(3) ceases to exist after the dissolution of the J&K Constituent Assembly would lead to the freezing of the process of integration. The court held that the power under Article 370(3) did not cease after the J&K Constituent assembly ceased to exist.
5. Concurrence of State Government Not Required To Apply All Provisions Of Constitution of India To J&K By Article 370(1)(d)
The CJI stated- “This court cannot sit in appeal over the decision of the President of India on wh ether the special circumstances under Article 370 exist…History shows gradual process of constitutional integration was not going on…It was not as if after 70 years Constitution of India was applied in one go. It was a culmination of the integration process.”