Four years after political parties and concerned citizens flocked to the Supreme Court challenging the reading down of Article 370, and the bifurcation of the erstwhile state of Jammu and Kashmir into two federally governed Union Territories. The verdict of the 5-judge Constitution Bench upheld the entire decision-making and suggested an election by September 2024, reports Faiqa Masoodi
“Jammu and Kashmir had no internal sovereignty, Article 370 was only temporary. The pronouncement ends.”
After dominating the Supreme Court proceedings for many hours on December 11, 2023, the 476-page verdict eventually brought closure to the four-year campaign for the undoing of reading down of Article 370, a key article in the Constitution of India that gave Jammu and Kashmir a special status. The hearings, speculation, and conclusion were all wrapped up in a few-hour session.
The verdict took away the last shreds of hope from the people of Jammu and Kashmir.
Following 16 days of intense hearings, the Supreme Court had earlier on September 5, reserved its decision on 23 petitions challenging the reading down of Article 370 on August 5, 2019.
The early hearing of Article 370 was caused by the Supreme Court’s winter break, which starts on December 16. Besides, the Supreme Court resolved to rule on the long-running issue of Article 370 on December 11, in light of the retirement of Justice Sanjay Kishan Kaul, one of the judges who heard the entire case, on December 25. The Kashmir-origin judge, interestingly wrote a few additional pages of the verdict strongly recommending the Truth and Reconciliation Commission for Jammu and Kashmir.
Impressive Security
Ahead of the hearing, the Cyber Police, Kashmir advised social media users to use the platforms responsibly and refrain from sharing rumours, fake news, hate speeches, or obscene, violent, and defamatory content. Security was stepped up in vulnerable areas of Jammu and Kashmir, particularly Srinagar.
The verdict lacked any adverse impact on the ground. People continued with their routines even at the time the judgement was being pronounced. A general impression on the ground was that people had already given up or they were aware of the outcome. Five senior-most judges of the Supreme Court upheld the Union government’s action to abrogate Article 370, which granted special status to Jammu and Kashmir.
Chief Justice of India (CJI) DY Chandrachud on behalf of himself, Justices BR Gavai and Surya Kant, wrote 352 pages of the 476-page judgment. Justice SK Kaul wrote 121 pages and Justice Sanjiv Khanna wrote a concurring judgment of three pages.
No Sovereignty
The proceedings started on the sovereignty of Jammu and Kashmir, a key element that was raised by many top constitutional lawyers during the 16-day hearing that consumed more than 80 hours. The Supreme Court held that the “merger” of Jammu and Kashmir with India was the same as the other princely states in India and that the state of Jammu and Kashmir did not enjoy any internal sovereignty.
The petitioner’s claim that Jammu and Kashmir’s autonomy set it apart from other states was rejected by the constitution bench. “Asymmetric federalism allows for the possibility of one state having more autonomy than another. This does not imply that its autonomy is different,” the Chief Justice observed. He warned that “other states which had special arrangements with the Union also possessed sovereignty” if the Court determined that J&K possessed an elevated kind of sovereignty.”
Chief Justice relied strongly on a proclamation by Yuvraj Karan Singh on November 25, 1949, the day before India’s Constitution was adopted. The proclamation stated that the provisions of the Indian Constitution would govern the relationship between the Jammu and Kashmir and India.
Supreme Court rationale cited that the proclamation accepted the supremacy of the Indian Constitution and surrendered Jammu and Kashmir’s sovereignty to it. SC also cited Section 3 of the Jammu and Kashmir constitution, which held Jammu and Kashmir as an integral part of India. Section 147 of the erstwhile Jammu and Kashmir constitution prohibited any amendment to Section 3.
A Temporary Provision
For the layperson, the dispute revolved around whether Article 370 was permanent or only temporary, hence dismissing any other considerations regarding its abrogation. To end the lawsuit, the Supreme Court’s ruling that Article 370 was merely a temporary solution until the State’s Constituent Assembly was established was adequate.
The Supreme Court observed that the decision taken on August 5, 2019, to abrogate Article 370, which ended the special status of the erstwhile state of Jammu and Kashmir, was done to enhance constitutional integration and not disintegration. The Court has also recognised the fact that Article 370 was not permanent.
Petitioners had argued that Article 370 was only temporary till the Constituent Assembly of Jammu and Kashmir existed. As the members chose to retain the provision, it transcended to permanency, with the only authority that could have abrogated it having dissolved.
The bench held that the words “recommendation of the Constituent Assembly…shall be necessary” should be read with the historical context in mind, as it indicates that this was merely a “ratification process as decided by the Ministry of States.” The recommendation, he said, is not binding on the President.
First, the Chief Justice relied on the fact that the Constitution framers placed Article 370 with the temporary and transitional provisions contained in Part XXI. Then, he pointed out that the Instrument of Accession made it “abundantly clear” that Article 1, which stated that “India that is Bharat shall be a Union of States” applied in its entirety to Jammu and Kashmir.
Legality of Undoing Article 370
Again, the Supreme Court upheld the legality of presidential proclamations CO 272 and CO 273 used to abrogate Article 370 and bifurcate Jammu and Kashmir into two union territories.
SC rationale clarified that, after the Constituent Assembly of the state ceased to exist, the President could have always unilaterally abrogated Article 370.
Petitioners’ had claimed that the President cannot use its powers under Article 356 to “take irrevocable decisions” and “unsettle constitutional safeguards in favour of States.”
Here, the Supreme Court relied on the Bommai ruling to hold that the actions of the President are constitutionally valid. The Court said that the Bommai ruling held that the actions taken by the President after issuing a Proclamation are subject to judicial review, but the judges had adopted varying standards to test the validity of the executive orders.
The federal structure then becomes “diluted because the Union is empowered to take over the executive and legislative powers of the State.” Keeping in mind the intent of Article 356, which is to “restore the functioning of the constitutional machinery in the state,” actions taken by the President during the proclamation should be “geared” towards fulfilling this objective. Justice Chandrachud, observed that “it will be too stringent an approach to suggest that every action of the President and Parliament must be necessary to further the objects of the proclamation.”
Further, the Chief Justice stated that there are “hundreds if not thousands” of decisions that the President and Parliament must take, on behalf of the state legislature, to ensure effective day-to-day functioning in the state. Every such action, he held, cannot be open to judicial review, as it would “lead to chaos and uncertainty” and “put the administration in the State at a standstill.”
Justice Kaul concurred, stating that the President has the power to make “irreversible changes, including the dissolution of the State Assembly.” He noted that the President’s powers are kept in check by “judicial and constitutional scrutiny.”
No Malicious Intent
On the action that was taken under the President’s rule- the top court upheld the action of state reorganisation of Jammu and Kashmir during President’s rule. SC rationale held that the decision taken during the President’s rule to bifurcate the state of Jammu and Kashmir and to convert it into UT was not malafide. Hence no judicial review of the decision was required.
Many petitions challenged the Jammu and Kashmir State Reorganization Act, by which the state was bifurcated into two Union Territories with effect from October 30, 2019, arguing there was no power with the Centre to reorganise a state into two UTs.
The Chief found that the President’s intention was not mala fide. The reasoning he advanced was that the Union and the state have integrated “through a collaborative exercise” through a “slew” of Constitutional Orders since 1950. The President made the whole of the Indian Constitution applicable to J&K under Article 370(1)(d) to ensure its complete integration into India.
The court also observed that the views of the State legislature regarding the proposed reorganisation are recommendatory and not binding on the Parliament.
Concurrence of State Government Not Required
The Supreme Court stated that the presidential power in a state was valid and held that consultation and collaboration were not required to exercise this power and the concurrence of the state government was not required to apply all provisions of the Constitution using Article 370(1)(d). Thus, the President taking the concurrence of the Union Government was not mala fide and the views of the state legislature under Article 3 proviso were merely for reference.
Statehood Restoration
The top court said the reorganisation of the erstwhile state into Union Territories in 2019 was a temporary move. However, it upheld the carving out of Ladakh as a Union Territory. It ordered the Centre to restore statehood and called for elections by September 2024. “Restoration of Statehood and holding of elections is also a welcome direction in order to strengthen the democratic process and restore people’s power to the state.”
But it is also incongruous that the judgment does not press the government to restore statehood to the bifurcated Union Territory, a promise that has been conveyed by the Solicitor General, but has yet to gain fruition.
The Bench remarks that direct elections cannot be put on hold until statehood is restored but it could have directed the Union government to restore statehood and conduct elections by a specified date, as there remains no reason for the continuance of Jammu and Kashmir as a Union Territory. The court wanted restoration of statehood ‘as early as possible’ and directed the Election Commission to hold polls by September next year.
Reactions
The verdict was soon followed by a marathon of reactions from all over India, while the political class in Jammu and Kashmir expressed displeasure over the apex court’s verdict.
With the Supreme Court’s decision to uphold the abrogation of Article 370, the BJP has won a significant ideological struggle to remove Jammu and Kashmir’s unique status, on the ground that the region cannot have “two flags, two constitutions, and two Prime Ministers.”
Prime Minister Narendra Modi hailed the verdict and said that the top court, through its decision, has “strengthened the spirit of Ek Bharat, Shreshtha Bharat“.
In an article following the verdict, the Prime Minister wrote, “In its verdict on December 11, the Supreme Court has strengthened the spirit of Ek Bharat, Shreshtha Bharat — it has reminded us that what defines us are the bonds of unity and a shared commitment to good governance.”
“Today’s decision of the Supreme Court on the abrogation of Article 370 is historic and it constitutionally upholds the decision taken by the Parliament of India on August 5, 2019. This is a declaration of hope, progress and unity for our brothers and sisters in Jammu and Kashmir and Ladakh. The Court with all its wisdom has protected the spirit of unity, which we citizens of India hold dear and value above all else,” he added.
Union Home Minister Amit Shah welcomed the verdict, stating that it upheld the constitutionality of his government’s decision. “After the abrogation of Article 370, the rights of the poor and deprived have been restored, and separatism and stone pelting are now things of the past. The entire region now echoes with melodious music and cultural tourism. The bonds of unity have strengthened, and integrity with Bharat stands reinforced,” he added.
Vice president of the Jammu Kashmir National Conference (JKNC), Omar Abdullah, summarised his feelings following the Supreme Court’s decision by saying, “Dil Naumeed Tou Nahi Na Kaam hi Tou Hai, Gham ki sham lambi hai Magar shaam hi tou hai (I haven’t lost hope; it’s just a fight; the night of suffering is getting longer, but it’s only a night,” Omar posted on X.
PDP chief Mehbooba Mufti described the verdict as a “death sentence” not only for Jammu and Kashmir but also for the idea of India. She urged people not to lose hope, emphasising that the struggle in the region has been a political fight spanning decades.
When questioned about the decision outside the Indian parliament, Farooq Abdullah, the head of the National Conference and a five-time former chief minister of Jammu and Kashmir, responded fiercely. “Let Jammu and Kashmir burn in hell; that’s where you’ve taken it.”
He later received a lot of backlash for making the statement and he had to provide a clarification.
Upholding Abrogation, Supreme Court Ratifies Singular Vidhan, Pradhan, and Nishan In Art 370 Verdict
Democratic Progressive Azad Party Chairman Ghulam Nabi Azad termed the verdict “sad and unfortunate”. He expressed disappointment that the sentiments of the people of Jammu and Kashmir and the historical significance of Article 370 were not considered. He, however, said now the people must accept the verdict.
Peoples Conference chief Sajad Lone said justice yet again eluded the people of Jammu and Kashmir.
“The Supreme Court verdict on Article 370 is disappointing. Justice yet again eludes the people of Jammu and Kashmir. Article 370 may have been legally obliterated but will always remain a part of our political aspirations,” Sajad Lone said.
Karan Singh, the son of former Jammu and Kashmir Maharaja Hari Singh and Congress leader, advised the people of Jammu and Kashmir to accept the Supreme Court’s decision as there is no point in unnecessarily hitting their heads against the wall.
“My sincere advice to a section of people in Jammu and Kashmir who will not be happy with this judgment is that they should accept the inevitable and they should accept the fact that now this has been done and the Supreme Court has upheld the action and therefore there’s no point now unnecessarily hitting their head against the wall,” he said.
Kashmir Pandit group ‘Panun Kashmir, The SOS International, an organization representing the displaced population of Pakistan-occupied Kashmir (PoK), Dogra scion Vikramaditya Singh West Pakistan refugees, Gorkhas and Valmikis all welcome the move in concurrence.
Meanwhile, despite the resolution of the long-standing dispute, the future course of events in Jammu and Kashmir remains uncertain. Although the relevance of Article 370 has diminished, it remains unclear whether the administration will comply with the Supreme Court’s directions to conduct elections by September 2024 and restoration of statehood.
The Hearings
Day 1; Day 2: Day 3; Day 4, Day 5, Day 6, Day 7, Day 8, Day 9, Day 10, Day 11, Day 12, Day 13a, Day 13b, Day 14, Day15a, Day15b, Day 16
