The Court held that Parliament has legislative powers on state reorganisation and that Article 370 was a temporary provision
Article 370 died on August 5, 2019, with a stroke of pen when former President Ram Nath Kovind signed Constitutional Orders (CO) 272 and 273. However, it was not cremated and its corpse continued to be kept in the mortuary in the hope that the Supreme Court of India would blow life into it. However, vide three separate but concurring judgments, the Supreme Court of India unanimously let Article 370 rest in peace. This historic moment saw a Constitutional Bench led by the CJI delving into multiple facets, each crucial in determining the status and implications of this constitutional provision, namely: the extent of sovereignty enjoyed by J&K, temporary versus permanent nature of Article 370, the 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 there was complete subordination of J&K to the Constitution of India, and its status aligned with the principle of asymmetric federalism and not internal sovereignty.
Regarding the status of Article 370, the Court inferred from an analysis encompassing historical, textual as well as purposive angles that it was a temporary provision. Article 370 was needed given the war-like situation in the State, besides serving 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 suggest the inference that Article 370 is temporary and 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 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. 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, given the 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 CO 272 applied all provisions of the Constitution to J&K.
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 the Constituent Assembly of J&K, hence there was nothing mala fide in the President not seeking concurrence of the state government for the full application of the 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 amends Article 367 by which the Constituent Assembly in proviso to Article 370(3) would mean “Legislative Assembly”. And then it abrogates Article 370, effectively amending Article 370. Hence, Paragraph 2 of CO 272 was held unconstitutional however the rest of the portion which extended the whole of the Constitution of India to the state of 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 the Legislature.
The Court directed the restoration of statehood at the earliest possible opportunity. The Court mandated the Election Commission of India to conduct elections, a fundamental facet of India's representative democracy, 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. The Court has delineate a nuanced and pivotal perspective on controversial issues of national importance. At the same time, 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.
(Siddharth Mishra is Sr Assistant Professor, Faculty of Law, University of Delhi and Shashank Rai is an advocate at the Supreme Court of India, views are personal)
