New Delhi, Dec 11 (GNS): Srinagar, Dec 11: Eighty-six days after reserving the verdict and more than four years after abrogation of Article 370 of the constitution and bifurcation of the erstwhile state into Jammu and Kashmir and Ladakh, the Supreme Court of India on Monday upheld as valid the President’s order C.O. 272, allowing the Union to amend Article 370 without the recommendation of the Constituent Assembly.
A five-judge Constitution bench headed by Chief Justice D Y Chandrachud also directed restoration of statehood “at the earliest or as soon as possible” as well as elections to the assembly by September 30 next year.
The court delivered three concurring judgements upholding abrogation of the Constitutional provisions that provided special status to Jammu and Kashmir for nearly seven decades.
Writing the judgement for himself and Justices B R Gavai and Surya Kant, the CJI said Article 370 was a temporary provision and the president was empowered to revoke it in the absence of the Constituent Assembly of the erstwhile state.
Justices Sanjay Kishan Kaul and Sanjiv Khanna penned separate and concurring verdicts on the issue.
“The State of Jammu and Kashmir does not retain any element of sovereignty after the execution of the IoA and the issuance of the Proclamation dated 25 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,” the court held
The petitioners, the Bench said, 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.”
The exercise of power by the President after the Proclamation under Article 356, the court said, 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 person challenging the exercise of power must prima facie establish that it is a mala fide or extraneous exercise of power. Once a prima facie case is made, the onus shifts to the Union to justify the exercise of such power.”
The power of Parliament under Article 356(1)(b) to exercise the powers of the Legislature of the State cannot be restricted to law-making power thereby excluding non-law making power of the Legislature of the State, the court said. “Such an interpretation would amount to reading in a limitation into the provision contrary to the text of the Article.”
The top court said that It can be garnered from the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution that it is a temporary provision.
“.The power under Article 370(3) did not cease to exist upon the dissolution of the Constituent Assembly of Jammu and Kashmir,” the court said, adding, “When the Constituent Assembly was dissolved, only the transitional power recognised 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).”
Article 370 cannot be amended by exercise of power under Article 370(1)(d), it said. “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,” the court said, adding, “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.”
The exercise of power by the President under Article 370(1)(d) to issue CO 272 is not mala fide, the court said as per the detailed judgment, a copy of which lies with GNS. “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.”
Paragraph 2 of 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, the court said. “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 that Article 370(3) ceases to operate without the recommendation of the Constituent Assembly, the court said. “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. Thus, CO 273 is valid.”
The Constitution of India, the court said, is a complete code for constitutional governance. “Following the application of the Constitution of India in its entirety to the State of Jammu and Kashmir by CO 273, the Constitution of the State of Jammu and Kashmir is inoperative and is declared to have become redundant.”
The views of the Legislature of the State under the first proviso to Article 3 are recommendatory, the court said. “Thus, Parliament’s exercise of power under the first proviso to Article 3 under the Proclamation was valid and not mala fide.”
The top court also upheld the validity of the decision to carve out the union territory of Ladakh from Jammu and Kashmir on August 5, 2019.
The CJI referred to Solicitor General Tushar Mehta’s statement that Jammu and Kashmir’s statehood will be restored, except for the carving out of the Union Territory of Ladakh.
“The Solicitor General stated that the statehood of Jammu and Kashmir will be restored (except for the carving out of the Union Territory of Ladakh). 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 court said, adding, “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.”
The court also directed that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by 30 September 2024. “Restoration of statehood shall take place at the earliest and as soon as possible.” (GNS)
