Election Commission: 370 now a finished article: SC upholds Modi govt’s call to scrap J&K special status
NEW DELHI: A five-judge constitution bench on Monday unanimously upheld the Narendra Modi government’s 2019 decision to scrap the
In a boost to PM Modi ahead of the 2024 Lok Sabha elections, Chief Justice D Y Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant held that Article 370(3) empowered the President (read the Centre) to unilaterally issue a notification for abrogation of special status that J&K enjoyed under Article 370 and that power remained undimmed by dissolution of the Constituent Assembly of J&K
The bench asked for restoration of J&K’s statehood “at the earliest and as soon as possible” and for assembly elections to be held by September 2024, while upholding the decision to hive off Ladakh as a Union Territory.
The reasoning marked a fatal blow to the plea of the challengers that J&K’s special status could be revoked only with the concurrence of the Constituent Assembly and with the Constituent Assembly for the state gone, it had acquired permanence.
It was a comprehensive victory for the Centre. The court framed 10 questions to answer all aspects of the challenge by the petitioners and upheld the Centre’s contention on all counts, holding that the landmark decision of August 5, 2019, marked the culmination of the process of integration of the state and clearing the way for application of the entire Constitution to it.
Though the bench was unanimous, three judgments were delivered — one by the CJI for himself and Justices Gavai and Kant while Justices Kaul and Khanna penned separate verdicts. The verdicts ran into 476 pages.
Explaining the historical trajectory of J&K’s relationship with the Union of India, the CJI said in his judgment that with the late Hari Singh, the erstwhile maharaja, agreeing to merge his principality with India by signing the Instrument of Accession in 1947, J&K’s surrender of its sovereignty was complete and unconditional. Rejecting the challengers’ argument that J&K’s accession was conditional and, therefore, it retained a part of its sovereignty, the bench said neither the constitutional set-up, nor any other factors, indicated that J&K retained an element of sovereignty.
“All states in the country have legislative and executive power, albeit to differing degrees. The Constitution accommodates concerns specific to a particular state by providing for arrangements which are specific to that state. Articles 371A to 371J are examples of special arrangements for different states. This is a feature of asymmetric federalism, like Article 370 which became applicable to Jammu and Kashmir on the adoption of the Constitution. 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,” the CJI said.
Bringing the curtains down on the controversy arising out of the Modi government’s decision on August 5, 2019, to scrap J&K’s special status, the apex court said it was the culmination of the process of integration but held that statehood be restored as soon as possible and a government be elected in the state. The court directed the EC to hold elections in the state by September-end, a timeframe that the government may be comfortable with.
On restoration of statehood, the court, significantly, referred to the Centre’s commitment mentioned by solicitor general Tushar Mehta.
The verdict was unambiguous in validating the controversial order to scrap J&K’s special status without the concurrence of the state assembly when the state was under President’s rule. “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,” the CJI said.
“The President had the power to issue a notification declaring that Article 370(3) ceases to operate without the recommendation of the Constituent Assembly. The continuous exercise of 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,” he added.
Justice Kaul, in his judgment, said J&K retained an element of internal sovereignty and Article 370 recognised this by acknowledging the Constituent Assembly of the state. But, he said “Article 370(3) contained the mechanism to bring the temporary arrangement to an end, and in turn, to de-recognise the internal sovereignty of the state and apply the Constitution in toto”. “Since Article 370 is meant to be a temporary arrangement, it cannot be said that the mechanism under Article 370(3) came to an end after the Constituent Assembly was dissolved,” he added.
Agreeing with the CJI and Justice Kaul, Justice Khanna said, “Both judgments uniformly agree that Article 370 of the Constitution was a feature of asymmetric federalism and not sovereignty. Article 370 was enacted as a transitional provision and did not have permanent character. The abrogation of Article 370 does not negate the federal structure, as the citizens living in Jammu and Kashmir do and will enjoy the same status and rights as given to citizens residing in other parts of the country.”
The verdict also rendered the constitution of J&K a dead letter. “The gaps left by the non-application of some parts of the Constitution of India were filled by the constitution of the state. After abrogation of Article 370 (as it stood before the issuance of CO 272 and CO 273) and the application of the entirety of the Constitution of India to the state, the constitution of the state does not fulfil any purpose or serve any function. Hence, the implicit but necessary consequence of the application of the Constitution of India in its entirety to the state of Jammu and Kashmir is that the constitution of the state is inoperative,” the court said.
The hearing in this case started on August 2, lasted 16 days over a 35-day period and the order was reserved on September 5. The petitioners against the Centre’s decision argued for ten-and-a-half days and the respondents, including the Union government, concluded their arguments in five-and-a-half days.