Supreme Court orders restoration of J&K statehood, but upholds abrogation of Article 370

A five-judge bench of the Supreme Court, in concurring judgements today, 10 December, upheld the validity of the Union government’s August 2019 Constitutional Order that abrogated Article 370, which gave special status to the state of Jammu and Kashmir.

Article 370 was a temporary condition, stated the bench.

The Supreme Court also directed that Jammu & Kashmir’s statehood should be restored and elections be held by September 2024.

The bench—led by Chief Justice of India D.Y. Chandrachud and including Justices S.K. Kaul, Sanjeev Khanna, B.R. Gavai and Surya Kant—had reserved its verdict on 5 September on as many as 23 petitions challenging the Presidential Orders of 2019 repealing the special status of Jammu and Kashmir, after hearing the matter for 16 days.

There were three judgements in the matter: one from CJI Chandrachud on behalf of justices Gavai, Surya Kant and himself, and one each from justices S.K. Kaul and Sanjiv Khanna, that were separate but concurring.

Justice Khanna, in particular, had a few differing points in his judgement.

The bench upheld the reorganisation of Ladakh as a Uunion territory, but left open the question of whether Parliament does in fact have the powet to convert a state into a Union territory as it did with Jammu & Kashmir.

The Jammu and Kashmir elections must be conducted before 30 September 2024, the bench held, and stated that the restoration of Jammu & Kashmir's statehood should be expedited.

The Supreme Court also refused to give an opinion on the validity of President's Rule imposed in Jammu & Kashmir in December 2018, as it was not specifically challenged by the petitioners. However, it held that the exercise of power by the President was not erroneous and no concurrence was required by the state Assembly for it to go ahead.

The court also stated that Article 370 could not be amended by exercise of powers granted under Article 370(1)(d).

The CJI said the issues before the bench were as follows:

1. Was Article 370 temporary or not?

2. Was the substitution of a ‘Constituent Assembly’ by a legislative assembly, using Article 370(1) as support, valid?

3. Was the Presidential Order invalided by the lack of recommendation from the Jammu & Kashmir Constituent Assembly?

4. Was the bifurcation of Jammu & Kashmir into two Union territories valid?

5. Whether the President's Rule imposed on the state in December 2018 was valid.

6. Whether the Presidential proclamation was valid.

The Chief Justice said there are limitations on the power of the Union government in states when President's Rule is in force, but every decision taken by the Union on behalf of the state during President's Rule is not open to challenge. “This would lead to a standstill of the administrative work,” said Chandrachud just before reading out his judgement.

He maintained that Jammu and Kashmir did not retain any element of sovereignty or internal sovereignty when it joined the Union of India. “The Constitutional framework did not indicate that Jammu and Kashmir retained sovereignty. There is a clear absence in the Constitution of Jammu and Kashmir to the reference of sovereignty,” said Chandrachud. He explained that the proclamation of the maharaja stated that the Constitution of India would supersede and that meant that the Instrument of Accession would also cease to exist.

The chief justice held that Article 370 was an interim arrangement due to war conditions in the state. “Textual reading of Article 370 indicated that it was a temporary provision and transitory,” added the CJI. Article 370 was a provision to take care of the transition from a princely state to the Union of India, the judgement held.

In the majority judgement, the CJI held that the power of the President of India to notify the abrogation of Article 370 remains in force even after the dissolution of the J&K Constituent Assembly. The President had the power, the judgement held, to issue a notification declaring that Article 370 ceased to exist even without a recommendation from the Jammu & Kashmir Constituent Assembly. This is read as a culmination of the integration process.

The majority judgement authored by the CJI stated that while the change sought to be made by Constitutional Order 272 appeared to be to Article 367 initially, it effectively changed Article 370. The court found these changes to be substantive.

In 2019, the Union government had used with Article 367 an interpretation clause to alter the meaning of “Constituent Assembly” to mean a “legislative assembly”, which led to the abrogation of Article 370. Since the Constituent Assembly in Jammu and Kashmir was dissolved in 1957, Constitutional Order 272 replaces it with the legislative assembly of the state.

Reading out his concurring judgement, Justice Kaul said that his conclusions were “more or less the same — except in one issue: Regarding the Prem Nath Kaul case, I have taken a different route”.

He disagreed with the use of Article 367 to amend Article 370.

“The purpose of Article 370 was to slowly bring Jammu and Kashmir on par with the other states of India," said Justice Kaul. "The requirement of recommendation of Jammu & Kashmir Constituent Assembly cannot be read in a manner that makes the larger intention redundant," he continued, emphasising that the original intent of Article 370 was to gradually integrate Jammu & Kashmir into India.

He added that when the Constituent Assembly ceased to exist, it meant only the proviso to Article 370(3) ceased to exist, but the main provision still existed.

However, he pointed out that when a procedure is prescribed in the Constitution, it must be followed. “Amendment through the backdoor is not permissible,” added Justice Kaul.

He recommended the setting up of an impartial Truth and Reconciliation Commission to investigate and report on the violations of human rights both by State and non-state actors at least since the 1980s, and recommend measures for reconciliation. He wanted the Commission to be set up "before people forget their memories" and to work on the project as a time-bound exercise.

“There is an entire generation of youth that has grown up with a feeling of distrust and it is to them that we owe the greatest day of liberation,” underscored Justice Kaul.

He said that this putative commission should not turn into a criminal court, and the government should decide on setting it up. “The Commission must not turn into a criminal court and must offer a platform for dialogue,” warned Kaul.

“Insurgencies led to the migration of one part of the population, and the situation was such that army had to be called and the nation faced dangers," said Kaul. "Men, women and children of the state have paid a heavy price. During my travels home over the years, I have seen the consequences of the trauma on the already fractured society. I cannot help but feel anguished by what the people of the region have experienced. To move forward, the wound needs healing.”

Khanna said that there were, in fact, only two judgements.

He reiterated his position that amending Article 367 was bad in law, but the same objective could be achieved by 370(3) and thus Constitutional Order 273 was held to be valid.