Judgments

IN RE: ARTICLE 370 OF THE CONSTITUTION  (CASE SUMMARY)

The Supreme Court in  In Re: Article 370 of the Constitution (Writ Petition Civil No. 1099 of 2019)  held that order issued by the President for abrogation of Article 370 was constitutionally  valid.

FACTS OF THE CASE

Article 370 of the Constitution incorporated special arrangements for the governance of the State of Jammu and Kashmir. The President vide Constitution  Orders 272 and 273 abrogated Article 370 during subsistence of a proclamation under Article 356 (1) (b). Parliament also enacted Jammu and Kashmir Reorganization Act, 2019 which bifurcated the State in two Union Territories. The constitutionality of these actions was challenged before the Supreme Court.

State Government in Jammu and Kashmir was formed by an alliance of People’s Democratic Party with Bhartiya Janata Party in 2015 and Ms. Mehbooba Mufti of PDP  became Chief Minister. BJP withdrew its support and thereafter proclamation was done under Article 92 of Constitution of Jammu and Kashmir and Governor assumed power and functions of Government of the State. Governor dissolved the Legislative Assembly on 21st November, 2018. On recommendation of Governor, President Rule was imposed under Article 356 on 19th December, 2018.  Extension of President Rule was approved by Parliament and President Rule was extended on 3rd July, 2019.

On 5th August, 2019 the President issued CO 272, the Constitution (Application to Jammu and Kashmir) Order, 2019 whereby all the provisions of Constitution of India were made applicable to Jammu and Commissioner either with or without modifications.  Article 367 (4) in which a modification was made, changing the term “Constituent Assembly” in the proviso to Article 370 (3) to “Legislative Assembly”.

Subsequently, The Jammu and Kashmir Reorganization Bill, 2019 was also passed by Parliament bifurcating Jammu and Kashmir into Union Territory of Jammu & Kashmir with Legislature and Union Territory of Ladakh without Legislature.

On 6th August, 2024 Parliament discharged function as Legislature of Jammu and Kashmir and Lok Sabha recommended to the President  under Article 370 (3) that special provision under Article 370 (3) shall cease to operate and provisions of Constitutions will apply to Jammu and Kashmir.

On 6th August, 2019 the President pursuant to recommendation of Lok Sabha  issued Constitutional Orders, whereby Article 370 ceased to apply with effect from 6th August, 2019.

FINDINGS OF THE SUPREME COURT

Sovereignty of Jammu & Kashmir

It was contended by Petitioners that State of Jammu and Kashmir retained an element of sovereignty.  It was argued that the Instrument of Accession ceded “external sovereignty” to the Union of India by ceding control over the subjects of defense, foreign affairs and telecommunication but the State retained “internal sovereignty”. The supreme Court held that the State of Jammu and Kashmir does not retain any element of sovereignty after the execution of Instrument of Accession and the issuance of the Proclamation dated 25th November, 1949 by which the Constitution of India was adopted. The State of Jammu and Kashmir does not have “internal sovereignty” which  is distinguishable from the powers and privileges enjoyed by other States in the Country. Article 370 was a feature of asymmetric federalism and not sovereignty.  

Temporary Nature of Article 370

The  Supreme Court observed that it can be garnered from the historical context for the inclusion of Article 370 and placement of Article 370 in Part XXI of the Constitution that it is a temporary provision. The power under Article 370 did not cease to exist upon the dissolution of the Constituent Assembly of Jammu and Kashmir. When the Constituent Assembly was dissolved, only the transitional power recognized in the proviso to Article 370 (3) which empowered the Constituent Assembly to make its recommendations ceased to exist. It did not affect the power held by the President under Article 370 (3).

Procedural Irregularity

The Supreme Court held that Article 370 cannot be amended by exercise of power under Article 370 (1) (d). Recourse must have been taken to the procedure contemplated by Article 370 (3) if Article 370 is to cease to operate or is to be amended or modified in its application to the State of Jammu and Kashmir. Paragraph 2 of CO 272 by which Article 370 was amended through Article 367 is ultra vires Article 370 (1) (d) because it modifies Article 370, in effect, without following the procedure prescribed to modify Article 370. An interpretation clause cannot be used to bypass the procedure laid down for amendment.

Power of President under Article 370 (1) (d)

The Supreme Court held that the exercise of power by the President under Article 370 (1) (d) to issue CO 272 is not mala fide. The President in exercise of power under Article 370 (3) can unilaterally issue a notification that Article 370 ceases to exist. 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. CO 272 issued by the President in exercise of power under Article 370 (1) (d) applying all the provisions of the Constitution of India to the State of Jammu and Kashmir is valid. Such an exercise of power is not mala fide merely because all the provisions were applied together without following a piece-meal approach.

The President had the power to issue a notification declaring the Article 370 (3) ceases to operate without the recommendation of the Constituent Assembly. The continuous exercise of the power under Article 370 (1) by the President indicates that the gradual process of Constitutional integration was ongoing. The declaration issued by the President under Article 370 (3) is a culmination of the process of integration and as such is a valid exercise of power. Thus CO 273 is valid.

The Supreme Court held that the views of the Legislature of the State under the first proviso to Article 3 are recommendatory. Thus, Parliament’s exercise of power under the first proviso to Article 3 under the proclamation was valid and not mala fide.

The Supreme Court did not find it necessary to determine whether the reorganization of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3. The Supreme Court upheld that 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.

The Supreme Court directed for conduct of elections to Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganization Act by 30th September, 2024.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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