| Headnote |
Issues for consideration: Article 370 of the Constitution of India incorporated special arrangements for the governance of the State of Jammu and Kashmir. The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b) which orders had the effect of applying the entire Constitution of India to the State of Jammu and Kashmir and abrogating Article 370. Contemporaneously, the Parliament enacted the Jammu and Kashmir Reorganisation Act 2019 which bifurcated the State into two Union territories, namely, the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. The petitioners challenged the constitutionality of these actions. CO 272 was issued under Article 370(1)(d) and sought to amend clause (3) of Article 370. The petitioners challenged CO 272 as being ultra vires Article 370(1)(d) on the grounds that: a. It modified Article 370, which could only be done on exercise of power under Article 370(3); and b. Only the State Government may accord “concurrence” to the President under the second proviso to Article 370(1)(d). Further, the exercise of power under Article 370(3) in issuing CO 273 was challenged. The questions for determination were: a. Whether the provisions of Article 370 of the Constitution were temporary in nature or whether they acquired a status of permanence in the Constitution; b. Whether the amendment to Article 367 of the Constitution in exercise of the power under Article 370(1)(d) so as to substitute the reference to the “Constituent Assembly of the State referred to in clause (3) of Article 370 by the words “Legislative Assembly of the State” was constitutionally valid; c. Whether the entire Constitution of India could have been applied to the State of Jammu and Kashmir in exercise of the power under Article 370(1)(d); d. Whether the abrogation of Article 370 by the President in exercise of the power under Article 370(3) was 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); e. Whether the proclamation of the Governor dated 20 June 2018 in exercise of power conferred by Section 92 of the Constitution of Jammu and Kashmir and the subsequent exercise of power on 21 November 2018, under Section 53(2) of the Constitution of Jammu and Kashmir to dissolve the Legislative Assembly were constitutionally valid; f. Whether the Proclamation which was issued by the President under Article 356 of the Constitution on 19 December 2018 and the subsequent extensions were constitutionally valid; g. Whether the Jammu and Kashmir Reorganisation Act 2019 by which the State of Jammu and Kashmir was bifurcated into two Union Territories (Union Territory of Jammu and Kashmir and Union Territory of Ladakh) was constitutionally valid bearing in mind: (i) The first proviso to Article 3 which requires that a Bill affecting the area, boundaries or name of a State has to be referred to the legislature of the State for its views; and (ii.) The second proviso to Article 3 which requires the consent of the State legislature for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name of boundary of the State before the introduction of the Bill in Parliament; h. Whether during the tenure of a Proclamation under Article 356, and when the Legislative Assembly of the State is either dissolved or is in suspended animation the status of the State of Jammu and Kashmir as a State under Article 1(3)(a) of the Constitution and its conversion into a Union Territory under Article 1(3)(b) constitutes a valid exercise of power. Federalism – Asymmetric federalism – Constitutional integration of Indian States – Accession of Jammu and Kashmir – Article 370 of the Constitution of India incorporated special arrangements for the governance of the State of Jammu and Kashmir – Whether the State of Jammu and Kashmir possessed sovereignty – Meaning of sovereignty.Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai and Surya Kant, JJ.): The State of Jammu and Kashmir does not retain any element of sovereignty after the execution of the Instrument of Accession (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. [Para 514] – Held (per Sanjay Kishan Kaul, J.): In light of the Supreme Court’s prior finding in Prem Nath Kaul case, the State of Jammu and Kashmir retained an element of internal sovereignty despite Maharaja Hari Singh signing the IoA with the Dominion – Art.370 of the Constitution recognized this internal sovereignty by recognizing the Constituent Assembly of the State. [Para 112] – Held (per Sanjiv Khanna, J.): The abrogation of Article 370 does not negate the federal structure, as the citizens living in Jammu and Kashmir do and will enjoy same status and rights as given to citizens residing in other parts of the country. [Para 2] Constitution of India – Art. 356 – Constitution of Jammu and Kashmir – s.92 – Proclamations issued under Article 356 of the Constitution of India and s.92 of the Constitution of Jammu and Kashmir – Constitutional validity of.Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai and Surya Kant, JJ.): The petitioners 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. [Para 514] Constitution of India – Art. 356 – Presidential Proclamation – Exercise of power by President or Parliament under Article 356 – Limitations on, if any – Standard to assess actions taken under Article 356 after issuance of Proclamation.Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai and Surya Kant, JJ.): The exercise of power by the President after the Proclamation under Article 356 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 – Such an interpretation would amount to reading in a limitation into the provision contrary to the text of the Article. [Para 514] –Held (per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y. Chandrachud, CJI): President’s rule can be imposed after the dissolution of the State Assembly since the Presidential emergency was predicated on the failure of the constitutional machinery, which took place prior to the Governor’s rule and the dissolution of the Assembly by the Governor of Jammu & Kashmir was only a subsequent consequence – Once the Presidential proclamation has been approved by both Houses of Parliament, so as to reflect the will of the people, the President has the power under Article 356 to make irreversible changes, including the dissolution of the State Assembly – The imposition of an emergency highlights an extraordinary situation and in the absence of the State Government and State Legislature, the power of these elected organs must lie with any other competent authority – Article 357 does not bar the President from exercising the non-legislative powers of the State Legislature, and Article 356(1)(b) allows the Union Parliament to exercise all powers of the State Legislature without distinguishing between legislative and non-legislative powers of the State Legislature – Therefore, the President is permitted to exercise both legislative and non-legislative functions of the State Legislature – However, a proclamation of emergency is bound by judicial and constitutional scrutiny to ensure the exercise of emergency powers is not unfettered and absolute. [Para 112] – Sanjiv Khanna, J. concurring with Dr. D.Y. Chandrachud, CJI. Constitution of India – Art. 370 – Scope and interpretation of – Art.370 incorporating special arrangements for governance of the State of Jammu and Kashmir, if a temporary provision – Historical context to the Article – Placement of Art.370 in Part XXI of the Constitution – Effect of.Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai and Surya Kant, JJ.): 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. [Para 514] – Held (per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y. Chandrachud, CJI): A combination of factors, such as Article 370’s historical context, its text, and its subsequent practice, indicate that Article 370 was intended to be a temporary provision. [Para 112] – Held (per Sanjiv Khanna, J.) (Concurring with both Dr. D.Y. Chandrachud, CJI and Sanjay Kishan Kaul, J.): Article 370 was enacted as a transitional provision and did not have permanent character. [Para 2] Constitution of India – Art. 370 – Effect of dissolution of the Constituent Assembly of Jammu and Kashmir on the scope of powers under Art.370(3).Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai and Surya Kant, JJ.): The power under Article 370(3) did not cease to exist upon the dissolution of the Constituent Assembly of Jammu and Kashmir – 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). [Para 514] – Held (per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y. Chandrachud, CJI): Article 370(3) contained the mechanism to bring the temporary arrangement to an end, and in turn, to de-recognize the internal sovereignty of the State and apply the Constitution of India 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 State Constituent Assembly was dissolved – The power of the President under Article 370(3) was unaffected by the dissolution of the Constituent Assembly of Jammu and Kashmir – The President could exercise their power anytime after the dissolution of the Constituent Assembly of Jammu and Kashmir, in line with the aim of full integration of the State. [Para 112] – Sanjiv Khanna, J. concurring with Sanjay Kishan Kaul, J. Constitution of India – Art. 370 – Amendment of Art. 370 through Art. 370(1)(d) – Application of the Constitution of India to the State of Jammu and Kashmir through exercise of power under Art. 370(1)(d) – Amendment to Article 367 of the Constitution in exercise of the power under Article 370(1)(d) so as to substitute the reference to the “Constituent Assembly of the State referred to in clause (3) of Article 370 by the words “Legislative Assembly of the State” – Validity of modification of Art. 367 – The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b) – These orders had the effect of applying the entire Constitution of India to the State of Jammu and Kashmir and abrogating Art.370 – Challenge to the Constitutional Orders 272 and 273 (C.Os 272 and 273).Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai and Surya Kant, JJ.): Article 370 cannot be amended by exercise of power under Article 370(1)(d) – 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 – 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 – However, 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 – 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 – 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 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 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. [Para 514] – Held (per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y. Chandrachud, CJI): The power of the President under Article 370(3) was unaffected by the dissolution of the Constituent Assembly of Jammu and Kashmir – The President could exercise their power anytime after the dissolution of the Constituent Assembly of Jammu and Kashmir, in line with the aim of full integration of the State – Hence, C.O. 273, which declares that Article 370 shall cease to operate except as provided, and was issued under Article 370(3), is valid – The power to issue C.O. 272 without the concurrence of the Government of the State is valid, as the power of the President is not limited by the concurrence of the Government of the State in this case – The power under Article 370(1)(d) read with Article 367 cannot be used to do indirectly, what cannot be done directly – The power to make modifications under Article 370(1)(d) cannot be used to amend Article 370 and Article 367, which is an interpretation clause, cannot be used to alter the character of a provision – Therefore, Paragraph 2 of C.O. 272, which amends Article 367(4) is ultra vires Article 370 – However, the President had the power to apply all provisions of the Constitution of India to Jammu and Kashmir under Article 370(1)(d), which is similar to the power under Article 370(3) – Therefore, the remainder of Paragraph 2 of C.O. 272 is valid. [Para 112] –– Held (per Sanjiv Khanna, J.) (Concurring with both Dr. D.Y. Chandrachud, CJI and Sanjay Kishan Kaul, J.): Paragraph (2) of C.O. 272 by which Article 370 was amended by taking recourse to Article 367 is ultra vires and bad in law, albeit can be sustained in view of the corresponding power under Article 370(1)(d) – Most importantly, Article 370 has been made inoperative in terms of clause (3) to Article 370 – Lastly, C.O. 273 is valid. [Para 2]Jammu and Kashmir Reorganisation Act 2019 – s.14 – Parliament enacted the Jammu and Kashmir Reorganisation Act 2019 which bifurcated the State of Jammu and Kashmir into two Union territories, Union Territory of Jammu and Kashmir and Union Territory of Ladakh – Challenge to the Reorganisation Act on substantive grounds and on procedural grounds – Contours of the power under Art. 3 of the Constitution of India – Parliament’s exercise of power under the first proviso to Art.3 – Suspension of the second proviso to Art.3 as applicable to Jammu and Kashmir – Constitution of India – Art.3.Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai and Surya Kant, JJ.): The views of the Legislature of the State under the first proviso to Article 3 are recommendatory – Thus, Parliament’s exercise of power under the first proviso to Article 3 under the Proclamation was valid and not mala fide – 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, it is not 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 – However, the validity of the decision to carve out the Union Territory of Ladakh is upheld in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State – Steps to be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under s.14 of the Reorganisation Act by 30 September 2024 – Restoration of Statehood shall take place at the earliest and as soon as possible. [Para 514] – Held (per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y. Chandrachud, CJI): The challenge to Section 4 of the Jammu and Kashmir Reorganization Act on the touchstone of Article 3 is not required to be debated on account of the assurance on behalf of the Government of India that the Statehood of Jammu & Kashmir would be restored on elections being held – It is imperative to ascertain the ‘views’ of the State Legislature under the first proviso to Article 3 if the proposed Bill affects the area, boundaries or name of the State – However, in the instant case since the State of Jammu & Kashmir was under President’s Rule and the State Legislature was already dissolved, the functions of the State Legislature were performed by the Union Parliament – Hence, it was not possible to ascertain the views of the State Legislature – It follows that Section 3 of the Reorganization Act is valid. [Para 112]Held (per Sanjiv Khanna, J.) (Concurring with Dr. D.Y. Chandrachud, CJI): Union Territories are normally geographically small territories, or may be created for aberrant reasons or causes – Conversion of a State into Union Territory has grave consequences, amongst others, it denies the citizens of the State an elected state government and impinges on federalism – Conversion/creation of a Union Territory from a State has to be justified by giving very strong and cogent grounds – It must be in strict compliance with Article 3 of the Constitution of India. [Para 6] Human Rights – Jammu and Kashmir – Held Per Sanjay Kishan Kaul, J, Recommendation made by for setting up of an impartial truth and reconciliation Commission to investigate and report on violation of human rights both by State and non-State actors in Jammu & Kashmir at least since the 1980s and recommend measures for reconciliation. [Para 120] |
