The year 2023 is about to become past but it is poised to shape future society and politics through its landmark judgments. From the judgment on Demonetization to Maharashtra Governor to Same Sex Marriage to Abrogation of Article 370, if there was one perpetual institution at the helm, it was the Supreme Court of India. Although it’s a tough task to choose the Moon among the stars, if there is one case that the entire nation was waiting for with bated breath, it was In Re: Article 370 of the Constitution.
In a long-awaited judgment having far reaching importance, the Supreme Court of India on 11 December 2023 upheld the validity of abrogation of Article 370 of the Indian Constitution 4 years 4 months and 6 days after it was repealed by the Parliament on 5 August 2019. This historic moment saw a Constitutional Bench led by the CJI delving into multiple facets, namely, the extent of sovereignty enjoyed by J&K, temporary versus permanent nature of Article 370, validity of amendments and abrogation through constitutional orders (CO), and scope of Parliament’s power under Article 3 of the Constitution.
Although Paragraph 8 of the Instrument of Accession by which J&K acceded into India, retained sovereignty with Maharaja Hari Singh, the subsequent Proclamation by Yuvraj Karan Singh on 25 November 1949 explicitly stated the supremacy of the Indian Constitution over all other conflicting provisions within the state. Furthermore, Article 370 read with Article 1 of the Indian Constitution declares J&K to be an integral part of India. Unlike the Preamble to the Indian Constitution, there is nothing in the Constitution of J&K that declares it to be sovereign. On the contrary, the unamendable Section 3 of the Constitution of J&K reinforces the position under Article 1 of the Indian Constitution. The Bench, distinguishing judgements like Prem Nath Kaul (1959), held that the status of J&K aligned with the principle of asymmetric federalism and not sovereignty.
The Court navigated through historical, textual as well as purposive aspects to conclude that Article 370 was a temporary provision. It was needed in view of the war-like situation in the State, besides to serve an interim purpose till the Constituent Assembly of J&K ratified the Indian Constitution and decided the contours of engagement between the Union of India and the state of J&K for matters other than those mentioned in the Instrument of Accession. Textually, its placement in Part XXI of the Constitution and the marginal heading of the provision suggests that Article 370 was transitional. And finally, Article 370(1)(d) and 370(3) had the avowed purpose of constitutional integration of J&K into India. At the time of the dissolution of the Constituent Assembly of J&K, the war-like situation still persisted, and hence Article 370 outlived the Constituent Assembly. Holding that Article 370 cannot be abrogated after dissolution would lead to derailing the process of integration which was the purpose of introducing the said article in the first place.
It is the prerogative of the President to decide if the special circumstances that necessitated Article 370 have ceased to exist. And the Court did not find any mala fide as the State had already seen a series of integrative endeavours through 370(1)(d), and CO 273 was only the culmination of that process. Further, in the view of absence of any limitation concerning the extent or manner of the Constitution’s application the Court dismissed claims of non-application of mind merely because the CO 272 applied all provisions of the Constitution to J&K simultaneously.
The Court highlighted that the consequential effect of applying all provisions of the Constitution to J&K under Article 370(1)(d) mirrors the outcome of issuing a notification under Article 370(3). Since the President had unilateral powers under Article 370(3) post the dissolution of Constituent Assembly of J&K, hence there was nothing mala fide in the President not seeking concurrence of the state government for full application of Constitution under article 370(1)(d). Thus, the Presidential action was not ultra vires the law laid down in S R Bommai (1994).
CO 272 vide Paragraph 2 amended Article 367 to effectively amend Article 370. The Paragraph 2 was held unconstitutional as Article 370 could be amended only by following the procedure under Article 370(3) however the rest of the portion which extended the whole of the Indian Constitution to J&K was held to be valid.
The Court categorically held that the power under Article 356 is not subject to Article 357. Hence, Parliament gets not just the legislative power but also the power to give recommendations on behalf of the legislature for irreversible actions like state reorganization. Given the non-binding nature of the State Legislature’s recommendations and reasonable nexus between the exercise of power and the object sought to be achieved, there was nothing mala fide in the recommendation by Parliament on behalf of Legislature. Having fulfilled the procedural requirement of seeking views of the Legislature, the Reorganization Act 2019 doesn’t lie in the teeth of Babulal Parate (1961).
Relying on solemn assertion by the Union of India on the restoration of statehood in J&K, the Court did not delve into the question of whether Parliament enjoyed the power to change the “character” of a federal unit under Article 3, and directed the restoration of statehood at the earliest. At the same time, the Court upheld the status of Ladakh as a Union Territory under Article 3(a), reinforced by Explanation I. The Election Commission of India was mandated to conduct elections to the Legislative Assembly of J&K by 30 September 2024. Justice Kaul recommended setting up a Truth and Reconciliation Commission on the lines of post-apartheid South Africa which would complement the process of integration of J&K with India, not just geographically but also emotionally.
The In Re: Article 370 of the Constitution verdict on the sovereignty of J&K within the Indian Union, the status of Article 370, the legality and propriety of its abrogation, the J&K Reorganization Act 2019 and the subsequent directives issued by the Court delineate a nuanced and pivotal perspective on controversial issues of national importance. With this, the curtains are finally drawn on the merger of Princely States – life-project of Sardar Patel. However, the court’s avoidance of conclusively addressing Parliament’s power under Article 3 to alter a State’s character into Union Territories leaves room for future considerations regarding the scope, impact, and legitimacy of such actions on the principles of federalism, historical context, and representative democracy.
(Shashank Rai is Computer Science Graduate from IIT Guwahati, has previously worked with Microsoft, and is currently practicing as an advocate with Supreme Court of India. The author was assisted by Dhiraj Kumar Sharma who is in his 4th year of B.A LL.B from University Law College (Vinoba Bhave University) and Deepak Gupta who is in his 2nd year of LL.B from Campus Law Centre, Delhi University.)
