The Supreme Court of India's judgment on the abrogation of Article 370 and the reorganization of Jammu and Kashmir. The judgment clarifies the temporary nature of Article 370 and affirms Parliament's power to alter the status of states within the Indian Union

The Supreme Court of India upheld the government’s action while affirming the Parliament’s power to alter the status of the states within the Indian Union in the case of examining the constitutionality of the Indian government's actions in the year 2019 regarding Article 370 of the Indian Constitution, which had accorded special status to the state of Jammu and Kashmir (J&K) since 1954, where a series of Presidential Orders were passed which led to the enactment of the Jammu and Kashmir Reorganization Act, 2019 for the effective abrogation of Article 370 and the reorganization of J&K into two Union territories: Jammu and Kashmir, and Ladakh.

Historical Context:

To truly grasp this complex issue, one must first understand the historical relationship between India and Jammu and Kashmir.

• Before India gained independence, Kashmir existed as a princely state ruled by a Maharaja. When British rule ended, princely states were given the option to join either India or Pakistan or to remain independent. Faced with an invasion, the Maharaja of Kashmir, under the leadership of Sheikh Abdullah (a prominent local leader), chose to join India. This accession was formalized through an Instrument of Accession in October 1947, granting India control over defense, foreign affairs, and communications.

• Notably, this accession was meant to be temporary until the people of Kashmir could confirm their decision. This commitment to the people's voice led to the inclusion of Article 370 in the Indian Constitution, granting special status and a degree of autonomy to Jammu and Kashmir.

Article 370: A Temporary Measure:
Article 370, a unique provision within the Indian Constitution, was intended to be temporary and transitional, aimed at integrating Jammu and Kashmir into India in phases. It granted the state a special status, allowing it to have its own constitution and limiting the power of the Indian Parliament to make laws applicable to the state. The article provided a mechanism for extending parliamentary powers and constitutional provisions to the state over time, demonstrating the intent to bring Jammu and Kashmir on par with other Indian states.

The 2019 Actions and Their Challenges:
In August 2019, the Indian government took several actions that drastically altered the status of Jammu and Kashmir:
• The President of India issued a constitutional order (CO 272), which effectively abrogated Article 370. • Another constitutional order (CO 273) declared that all provisions of the Indian Constitution would apply to Jammu and Kashmir.
• The Indian Parliament passed the Jammu and Kashmir Reorganization Act, 2019, which bifurcated the state into two Union Territories: Jammu and Kashmir and Ladakh.

These actions faced numerous legal challenges, with petitioners arguing:
• Permanence of Article 370: Some argued that Article 370, despite its labeling, had become a permanent feature of the Indian Constitution due to the passage of time and the lack of a recommendation from the state's Constituent Assembly for its abrogation. However, this argument was rejected.

• Lack of State Consent: Critics highlighted that the Indian government acted without obtaining the consent of the Jammu and Kashmir legislature, as mandated by Article 3 of the Indian Constitution (which deals with the reorganization of states). However, the court reasoned that as Jammu and Kashmir was under President's Rule at the time (meaning the state government was dissolved, and the Indian President assumed direct control), obtaining the legislature's consent was not feasible.

• Impact on Federalism: Concerns were raised regarding the impact of these actions on India's federal structure, with some arguing that converting a state into Union Territories undermined the principles of federalism and representative democracy. While the court acknowledged the importance of federalism, it maintained that the Indian Constitution allowed for flexibility in its federal structure.

Petitioners' Arguments:

• Violation of Constitutional Procedures: The petitioners argued that the process of abrogating Article 370 and reorganizing J&K bypassed established constitutional procedures, particularly those outlined within Article 370 itself, and those concerning the imposition of President's Rule under Article 356.
• Infringement on J&K's Autonomy: They asserted that these actions violated the special status and autonomy historically guaranteed to J&K under Article 370.

Respondents' Arguments:

• Parliamentary Supremacy and National Interest: The respondents (the Indian government) defended the abrogation, arguing that Parliament holds the power to determine the status of states within the Indian Union, citing national interest and the goal of full integration for J&K.

• Temporary Nature of Article 370: They emphasized that Article 370 was intended as a temporary measure and not a permanent feature of the Constitution. They argued that the Presidential Orders and the Reorganization Act were valid exercises of power under the Constitution.

Logical and Reasoning Used by the Judiciary

The logical and reasoning used by the judiciary in pronouncing the judgment on Article 370 are based on several key points:
• Temporary Nature of Article 370: The court determined that Article 370, despite not having an explicit end date, was intended as a transitional provision meant to facilitate the integration of Jammu and Kashmir into India. This conclusion was reached after examining the historical context surrounding its inclusion and analyzing its operation in the context of India-Jammu and Kashmir relations.

• The Role of the Constituent Assembly: A central point of contention was the role of the Constituent Assembly in amending or abrogating Article 370. The court clarified that while the Constituent Assembly had a crucial role in shaping the relationship between India and Jammu and Kashmir, its dissolution did not render Article 370 unamendable.

• Parliamentary Power Under Article 356: The court affirmed the Parliament's authority to exercise the powers of the State Legislature under Article 356, even for matters as significant as the reorganization of a State. This interpretation was deemed consistent with the constitutional framework, particularly during an emergency where the President assumes the State Legislature's functions.

•Substance Over Form: In analyzing the validity of Constitutional Orders and amendments related to Article 370, the court consistently emphasized the substance or effect of these actions over their mere form. It held that changes that significantly impacted the operation of a provision, even without directly amending its language, could attract the proviso to Article 368(2), requiring ratification by States.

The Chief Justice of India Dr. D.Y. Chandrachud held the exercise of power in by the President and Parliament as valid, however, after it was stated by the Solicitor General of India that, except for the Union Territory of Ladakh, the statehood of Jammu & Kashmir will be restored, the CJI directed the Election commission to conduct the Legislative Assembly Elections in Jammu & Kashmir and held that “In view of the statement we do not find it necessary to determine whether the reorganization of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3. However, we uphold the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State; and We direct that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by 30 September 2024. Restoration of statehood shall take place at the earliest and as soon as possible.”

Justice Sanjiv Khanna while delivering the judgement agreed to CJI’s opinion and asserted “Dr. Justice D.Y. Chandrachud has elaborately examined and interpreted the power of the President of India under Article 356 of the Constitution of India and disseminated the opinions of Mr. Justice B.P. Jeevan Reddy and Mr. Justice P.B. Sawant in S.R. Bommai and Others v. Union of India and Others.2 Reference can also be made to Rameshwar Prasad and Others (VI) v. Union of India and Another.” And he further stated “observations recorded by Dr. Justice D.Y. Chandrachud taking record of the statement on behalf of the Union of India for restoration of the statehood of the Union territory of Jammu and Kashmir, while upholding the creation of the Union Territory of Ladakh.”

The judgment emphasizes the court's role in safeguarding constitutional values and ensuring justice, especially in matters impacting fundamental rights and federalism. It demonstrates the court's approach of interpreting constitutional provisions in their historical and political context while upholding the principles of democracy and federalism.

Writ Petition (Civil) No. 1099 of 2019
Coram: Hon’ble..
Chief Justice Dr Dhananjaya Y Chandrachud, Justice B R Gavai, Justice Surya Kant, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna.
Dated:11th December 2023