Article 370 Judgement update from Supreme Court
CJI: The reference before the Constitution bench raises the following questions:
- Whether the provisions of Article 370 were temporary in nature or whether they acquired the status of permanence in the Constitution?
Answer: To answer this, we have to decide if 370 is a temporary provision. We hold that Article 370 is a temporary provision. It was introduced to serve transitional purposes to serve an interim process. It was for a temporary purpose because of war conditions in the State. Textual reading also shows it is a temporary provision and thus it was placed in part 21 of the Constitution.
We hold that Jammu and Kashmir does not hold any internal sovereignty after accession to Union of India.
- 2. Whether the amendment to Article 367 and exercise of the power under Article 370 (1) (d) to substitute the reference to the Constituent Assembly of the State referred to in Article 370 (3) by the words “Legislative Assembly of the State” is constitutionally valid?
Answer: Modification by CO 272 to 367 as it applies to Jammu and Kashmir has the effect of amending Article 370 and is thus ultra vires Article 370 (1)(d) … While the interpretation clause, namely, Article 367 can be used to define or give meaning to particular terms, it cannot be deployed to amend a provision by bypassing the specific procedure laid down for its amendment. This would defeat the purpose of having a procedure for making an amendment to the Constitution of India.. The consequence of permitting an amendment through a circuitous manner would be disastrous. Many provisions of the Constitution would be susceptible to amendments.
CO 272 is ultra vires Article 370 (1)(d)
- 3. Whether the entire the entire Constitution of India could have been applied to the State of Jammu and Kashmir in exercise under Article 370 (1)(d)
Answer: We have held all provisions of the Constitution of India can be applied to Jammu and Kashmir and non-application of mind cannot be claimed.
- 4. Whether the abrogation of Article 370 by the President in the exercise of the power under Article 370 (3) is constitutionally invalid in the absence of a recommendation of the Constituent Assembly of the State of Jammu and Kashmir as mandated by the proviso to clause (3)?
Article 370(3) was introduced for constitutional integration and not for constitutional disintegration. Holding that 370(3) cannot be used after Constituent Assembly was dissolved cannot be accepted since it was freeze the provision for constitutional integration. Court cannot sit in appeal over the decision of the President of India. The decision is however not beyond of judicial review and slew of Constitutional Orders under Article 370(1)(d) shows that the Union and the State through a collaborative process had applied the Constitution of India to the State of Jammu and Kashmir. This shows the gradual process of integration was ongoing and thus we do not find use of Presidential power was malafide. Thus we hold the Presidential power to issue the notification was valid.
We hold the Presidential power to issue the notification was valid.
- 5. Whether the proclamation issued by the President under Article 356 of the Constitution on 19 December 2018 and the subsequent extensions are constitutionally valid?
Answer: Article 370(3) was introduced for constitutional integration and not for constitutional disintegration. Holding that 370(3) cannot be used after Constituent Assembly was dissolved cannot be accepted since it was freeze the provision for constitutional integration. Court cannot sit in appeal over the decision of the President of India. The decision is however not beyond of judicial review and slew of Constitutional Orders under Article 370(1)(d) shows that the Union and the State through a collaborative process had applied the Constitution of India to the State of Jammu and Kashmir. This shows the gradual process of integration was ongoing and thus we do not find use of Presidential power was malafide. Thus we hold the Presidential power to issue the notification was valid.
We hold the Presidential power to issue the notification was valid.
- 6. Whether the Jammu and Kashmir Reorganisation Act, 2019, by which the State of Jammu and Kashmir was bifurcated into two Union Territories is constitutionally valid…?
Answer: Solicitor General submits that Statehood will be restored to Jammu and Kashmir.. We do not find it necessary to determine whether the Jammu and Kashmir Reorganisation Act 2019 was invalid. This court is alive to security concerns… We direct that steps shall be taken so that elections are held in Legislative Assembly of Jammu and Kashmir by September 2024 and Statehood shall be restored as soon as possible.
Steps shall be taken so that elections are held in Legislative Assembly of Jammu and Kashmir by September 2024. Statehood shall be restored as soon as possible.
Chief Justice Chandrachud sums up the conclusions:
1. Jammu and Kashmir does not retain any element of sovereignty after instrument of accession was signed;
2. No internal sovereignty for Jammu and Kashmir;
3. Challenge to the proclamation of Presidential rule is not valid;
4. Exercise of power of President must have a reasonable nexus with the object of presidential rule;
5. Power of Parliament to legislate for State cannot exclude law making power;
6. Article 370 was a temporary provision;
7. When Constituent Assembly was dissolved only the transitory power of the Assembly ceased to exist and no restriction on Presidential order;
8. Para 2 of CO 272 by which Article 370 was amended by amending article 367 was ultra vires as interpretation clause cannot be used for amendment;
9. President use of power was not mala fide and no concurrence needed with State
10. Para 2 of CO 272 in exercise of power under Article 370(1)(d) applying all provisions of Indian constitution to Jammu and Kashmir was valid;
11. The continuous exercise of power by the President shows the gradual process of integration was ongoing. Thus CO 273 is valid;
12. Constitution of Jammu and Kashmir is operative and is declared to have become redundant;
13. Presidential use of power not mala fide
14. Solicitor General made statement that Statehood will be restored to Jammu and Kashmir. We uphold the decision to carve out Union Territory of Ladakh. We direct Election Commission of India (should hold) polls under Section 14 of the Reorganisation Act and Statehood (should be restored) at the earliest.
Final Judgement:
Supreme court upholds the abrogation of the special status Jammu & Kashmir under Article 370. SC issues direction uphold elections to the J&K state assembly and says that the restoration of the statehood be expedited.
