NEW DELHI: The Supreme Court in its verdict on Monday upheld the Centre's August 5, 2019 decision to scrap Jammu and Kashmir's special status bestowed by Article 370 and bifurcate the erstwhile state into two Union Territories (UTs) - J&K and Ladakh - while hearing a batch of petitions challenging it.
Ending a decades-long debate, a five-judge bench, of the apex court, headed by Chief Justice of India (CJI) D Y Chandrachud, pronounced three concurring judgements, after noting that they could not hold abrogation of Article 370 to be 'malafide' ('carried out in bad faith').
"We hold that the amendments made to Article 370 by taking recourse to Article 367 as 'ultra vires' ('beyond the powers')," the CJI while reading out the judgement.
"Introduction of abrogation of Article 370 is not malafide. It is a valid exercise of power," the CJI said.
He also directed the ECI (Election Commission of India) to conduct elections in J&K under Section 14 of the Reorganisation Act, by September 30, 2024.
At the outset, he said that there were three judgments, one by the CJI (for himself), Justice B R Gavai, and Surya Kant. Justices Sanjay Kishan Kaul and Sanjiv Khanna penned separate and concurring verdicts on the issue.
Restore statehood; conduct polls soon
Justice Chandrachud referred to Solicitor General Tushar Mehta's statement in August this year that Jammu and Kashmir's statehood will be restored, but not Ladakh's.
"In view of the statement, we do not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3," the CJI said on Monday.
He added, "However, we uphold the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State."
'Art 370 temporary'
The Supreme Court in its verdict held that Article 370 of the Constitution granting special status to J&K was a temporary provision, and said that it was introduced for two purposes.
Article 370 was an interim arrangement due to war conditions in the State, the CJI said. "It is a temporary provision. It is temporary and transitory." The princely state of Jammu and Kashmir then became an integral part of India and this is evident from Articles 1 (declaring India as a Union of states) and 370, he said, while pronouncing the judgment.
"The Constituent Assembly of J&K was never intended to be a permanent body," the CJI stated.
In his verdict, the CJI stated that the Constitution of India was a complete code for constitutional governance.
"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," the top judge said, adding that the recommendation of the Constituent Assembly was not binding on the President. (Article 370(3) in the Constitution Of India 1949 says," ...the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify.")
Elaborating further, CJI Chandrachud: "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."
TIMELINE | Article 370: Timeline of developments
CJI on President' Rule
The CJI also rejected arguments by petitioners that no irreversible action could be taken by the Centre during President's rule. "Every decision taken by the Centre on behalf of the state during Presidential Rule can't be challenged," CJI Chandrachud said.
He said that the Centre can exercise the power of a state government under President's Rule. The Parliament/President can exercise the legislative powers of a state under the proclamation of emergency.
In his concluding points, the CJI stated that the state of J&K does not retain any element of internal sovereignty different from other states, after the execution of the Instrument of Accession and the issuance of the proclamation dated November 25, 1949 by which the Constitution of India was adopted.
"It does not have internal sovereignty. Article 370 is a feature of asymmetric federalism and not sovereignty," the CJI stated.
"The President in exercise of power under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist," he said.
"The President did not have to secure the concurrence of the Government of the State or Union Government acting on behalf of the State Government under the second proviso to Article 370(1)(d) while applying all the provisions of the Constitution to Jammu and Kashmir because such an exercise of power has the same effect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the State Government was not required," Justice Chandrachud said.
He said the petitioners did not challenge the issuance of the proclamations under Section 92 of the Jammu and Kashmir Constitution and Article 356 of the Indian Constitution until the special status of Jammu and Kashmir was abrogated.
"The challenge to the Proclamations does not merit adjudication because the principal challenge is to the actions which were taken after the Proclamation was issued," he said.
"The exercise of power by the President after the Proclamation under Article 356 is issued is subject to judicial review. The exercise of power by the President must have a reasonable nexus with the object of the Proclamation," the CJI asserted.
He said those challenging the exercise of power must prima facie establish that it was a mala fide or extraneous exercise of power.
Key points from the judgment:
Pronouncing his concurring verdict, Justice Kaul said the purpose of Article 370 was to slowly bring J&K at par with other Indian states.
He directed the setting up of an "impartial truth-and-reconciliation commission" to probe human rights violations, both by state and non-state actors, at least since 1980.
Justice Khanna, in his separate verdict, concurred with the CJI and Justice Kaul and gave his own reasons for the conclusion.
Background
The apex court reserved its verdict on the matter on September 5 after a 16-day hearing.
The lawyers on behalf of the various petitioners had dwelt on various issues, including the constitutional validity of the Centre's decision to abrogate the provisions of Article 370, the validity of the Jammu and Kashmir Reorganisation Act, which split the erstwhile state into two Union territories, challenges to the imposition of the governor's rule in Jammu and Kashmir on June 20, 2018 and the imposition of the president's rule on December 19, 2018 and its extension on July 3, 2019.
- With Additional Inputs From Online Desk &PTI