Case title:

In Re: Article 370 of the Constitution

Date of Order:

11 December 2023

Bench:

D.Y. Chandrachud CJI, S.K. Kaul J, Sanjiv Khanna J, B.R. Gavai J, Surya Kant J

SUBJECT

The Indian Constitution, adopted in 1950, consists of various articles that outline the structure and functions of the country. One such article, Article 370, granted special status to the Indian state of Jammu and Kashmir. However, on August 5, 2019, the Government of India revoked this article, leading to significant changes in the region's governance. Jammu and Kashmir, a predominantly Muslim-majority state, has a unique status in the Indian Constitution. Article 370 grants the state autonomy, including its constitution and flag. It also bars nonresidents from acquiring property in the state and limits the jurisdiction of the Indian Parliament. The removal of this article was deemed a necessity to bring stability and development to the region, which had been flawed by militancy and separatist sentiments.

IMPORTANT PROVISIONS

The Constitution of India, 1950

• Article 370

OVERVIEW

• Article 370 of the Constitution of India embodies special arrangements for the governance of the State of Jammu and Kashmir.
• During the existence of a Proclamation under Article 356(1)(b), the President issued Constitutional Orders 272 and 273.
• These orders have the effect of applying the entire Constitution of India to the State of Jammu and Kashmir and abrogating Article 370.
• Simultaneously, Parliament enacted the Jammu and Kashmir Reorganisation Act 2019, which divided the State into two Union territories.
• The Appendix to the Reorganisation Bill contained a Schedule listing out central legislations enacted under the Union List and the Concurrent List by Parliament which would thereafter apply to the two Union Territories. Amendments have also been carried out to existing state legislations to bring them into conformity with the Constitution.
• The petitioners in the present case have challenged the constitutional validity of these actions.

ISSUES RAISED

1. Whether the provisions of Article 370 acquired permanence or were temporary.
2. In the absence of a recommendation of the Constituent Assembly of Jammu and Kashmir as mandated by clause (3) of Article 370, is the abrogation of Article 370 by the President constitutionally invalid?
3. What is the constitutional validity of the Jammu and Kashmir Reorganisation Act 2019, which bifurcates Jammu and Kashmir into Kashmir and Ladakh Union Territories?

ARGUMENTS ADVANCED BY THE PETITIONERS

• The petitioners contended that the Governor’s Proclamation under Section 92 of the Constitution of Jammu and Kashmir dated 20 June 2018 is void.
• This was concerning the fact that the obligatory pre-requisite of the satisfaction of the Governor that the State government cannot be carried out following the provisions of the Constitution, was not fulfilled.
• It was also put forth that the President’s Proclamation under Article 356 dated 19th December 2018 is void ab initio as the motion approving the Proclamation was passed without debate and the Governor’s report.
• The case of Krishna Kumar Singh v. State of Bihar was cited by the counsel to hold that the President’s ordinance-making power cannot be treated as a constitutional equivalent of ordinary legislative power
• It was the view of the counsel that Article 370 must be interpreted in the context of three pillars; asymmetric federalism, autonomy, and consent.

ARGUMENTS ADVANCED BY THE RESPONDENT

• The counsel for respondents emphasized the point that Article 370 is the only provision in the Constitution that the Constitution itself declares to be “temporary”.
• It was the view of the counsel that Article 370 deprived the residents of Jammu and Kashmir of several fundamental and statutory rights without any legislative or parliamentary process. Such a consequence would obviously be known to the framers of the Constitution and therefore, the framers could have never intended for it to be a permanent provision
• It was contended by the counsel that applying the Constitution of India to the State can never be an “arbitrary act” as the abrogation of Article 370 will bring the residents of Jammu and Kashmir at par with the citizens residing in the rest of the country, and further confer them with all rights flowing from the entire Constitution as well as hundreds of beneficial legislations.
• The counsel further argued that the power of the President under sub-clause (3) of Article 370 is unfettered because (a) Article 370 begins with a non-obstante clause and hence the exercise of powers by the President is not controlled either by any constitutional provisions including the provisions of Article 370

JUDGEMENT ANALYSIS

• Five senior-most judges of the Supreme Court upheld the Union government's action to abolish Article 370 on 11 December 2023. In addition, the Court refused to comment on the constitutionality of the reorganization of Jammu and Kashmir into the Union Territories of Jammu and Kashmir and Ladakh.
• Based on the powers and privileges enjoyed by other States in the country, the Apex Court held that Jammu and Kashmir does not enjoy 'internal sovereignty'. Rather than being a feature of sovereignty, Article 370 was an example of asymmetric federalism.
• The CJI Chandrachud referred to Yuvraj Karan Singh’s proclamation (25 November 1949), which stipulated that the Indian Constitution governs the relationship between J&K and India. He noted that this negated two clauses of the Instrument of Accession (IoA).
• The ruling in Prem Nath Kaul v Union of India (1959), where it was held that J&K had retained some part of its sovereignty despite the Maharaja signing the IOA was cited to substantiate the above statement.
• It was brought to light by the court that the petitioners did not question 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. Thus, it does not merit adjudication.
• The court noted that the President had the power to issue a notification declaring that Article 370(3) ceases to operate without the recommendation of the Constituent Assembly. This exercise of power under Article 370(1) by the President was an indication that the gradual process of constitutional integration was ongoing.

CONCLUSION

The abrogation of Article 370 of the Indian Constitution is a momentous decision that has far-reaching implications for the state of Jammu and Kashmir and India as a whole. While the central government views it as a step towards integration and security, critics argue that the move is undemocratic and lacks sufficient consultation with the people of Jammu and Kashmir. However, this historic decision leaves a beacon of hope as the judgment ends with the court's direction to restore the statehood of Jammu and Kashmir at the earliest.