Historic Judgment by five Judges Constitution Bench: Removing Article 370 from the constitution.

Case Title: In Re Article 370 of the Constitution of India

Citation: 2023 Live Law (SC) 1050

Appearance for the Petitioners:

Senior Advocates Kapil Sibal, Gopal Subramanium, Zaffar Shah, Rajeev Dhavan, Dushyant Dave, Chander Uday Singh, Dinesh Dwivedi, Shekhar Naphade, Nitya Ramakrishnan, Gopal Sankaranarayanan, Menaka Guruswamy, Prashanto Chandra Sen, Sanjay Parikh and Advocate Warisha Farasat argued.

Appearance for the Union of India :

 Attorney General for India R Venkataramani, Solicitor General of India Tushar Mehta, Additional Solicitor General KM Nataraj, ASG Vikramjeet Banerjee and Advocate Kanu Agarwal.

Appearance For the Intervenors backing the Union:

Senior Advocates Harish Salve, Rakesh Dwivedi, V Giri, Guru Krishnakumar; Advocates Archana Pathak Dave, VK Biju and Charu Mathur.

 

 Before  The Supreme Court of India Original Writ / Appellate Jurisdiction Writ Petition (Civil) No. 1099 Of 2019

With Writ Petition (C) No. 871 of 2015 With Writ Petition (C) No. 722 of 2014 With SLP (C) No. 19618 of 2017 ,With Writ Petition (C) No. 1013 of 2019 With Writ Petition (C) No. 1082 of 2019 With Writ Petition (C) No. 1068 of 20 With Writ Petition (C) No. 1037 of 2019 With Writ Petition (C) No. 1062 of 2019 With Writ Petition (C) No. 1070 of 2019 With Writ Petition (C) No. 1104 of 2019 With Writ Petition (C) No. 1165 of 2019 With Writ Petition (C) No. 1210 of 2019 With Writ Petition (C) No. 1222 of 2019 With Writ Petition (C) No. 396 of 2017 With Writ Petition (C) No. 756 of 2017 With Writ Petition (C) No. 398 of 2018 With Writ Petition (C) No. 924 of 2018 With Writ Petition (C) No. 1092 of 2018 With Writ Petition (C) No. 1162 of 2018 With Writ Petition (C) No. 1048 of 2019 With Writ Petition (C) No. 1268 of 2019 And With Writ Petition (C) No. 1368 of 2019.

The Supreme Court on December 11th,2023 upheld the validity of the Union Government's 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution.

                                                            Part –A

Issues In Question :

Whether  Recommendation of J&K Constituent Assembly was necessary for the President to declare Article 370 inoperative.         ?

Background of the case:

1.      Changes made to Article 367

Some changes were made by Adding a clause to article 367 through notification issued by the President (Constitution Order 272) specifying

“that the references to the "Constituent Assembly of Jammu and Kashmir" should be read as the "Legislative Assembly of Jammu and Kashmir" and the "Government of J&K" can be construed as the "Governor of J&K".

  It is appropriate to mention that these changes enabled the President to issue the next Constitution Order, CO 273, to declare Article 370 inoperative without obtaining the recommendation of the J&K Constituent Assembly (which was dissolved in 1957) as stipulated in the proviso to Article 370(3).)

2.      SC invalidated changes to Art 367

Supreme Court Invalidated a portion of the notification issued by the President (Constitution Order 272), because

The above changes to Article 367 amounted to an amendment which had a substantive effect on Article 370 ,court disapproved it due to not following proper procedure for such amendment

 Refusing to endorse this backdoor method of amendment, the CJI DY Chandrachud wrote in the judgment :

"While the 'interpretation' clause can be used to define or give meaning to particular terms, it cannot be deployed to amend a provision by bypassing the specific procedure laid down for its amendment. This would defeat the purpose of having a procedure for making an amendment"

 Supreme court reiterated that The amendments to Constitutional provisions have to be carried out by following the procedure prescribed under Article 368 That is through passing an amendment bill in the Parliament with the backing of the prescribed majority.

3.      SC further Validated Constitution Order 273 

Despite invalidating the changes made to Article 367 through Constitution Order 272, the Court upheld the repeal of J&K's special status. Supreme Court  held that the President did not require the recommendation of the J&K Constituent Assembly to issue a declaration that Article 370 was inoperative. Thus, Constitution Order 273 was upheld. 

Although the Court held as invalid the Constitutional Order 272 to the extent it changed the meaning of 'J&K Constituent Assembly' as 'J&K Legislative Assembly' and 'J&K Government' as 'Governor', this conclusion did not affect the outcome of the judgment since the Court held that the recommendation of J&K Constituent Assembly was not necessary for the President to declare Article 370 as inoperative.

Part-B

Issue in Question :Can Parliament carve out a Union Territory from a state.

Background of the case :

Basic question raised in the writs :

The powers under Article 356 (the perception of Article 356) should only be employed to restore normalcy in the State facing a breakdown of the Constitutional machinery and should not be wielded to institute fundamental and enduring changes (referred to by the petitioners as 'irreversible changes' as an emergency provision)

1.      The Executive and legislative alterations concerning Jammu and Kashmir—such as the repeal of its special status, the separation of Ladakh, and its conversion into a Union territory—all transpired during a period of President's rule ,in the absence of a State Legislature or Government with all decisions unilaterally made by the Union.

In a certain sense, the Presidential proclamation under Article 356 facilitated these decisions by empowering the Union Government to act on behalf of the State, without political consensus at the State level.

2.      Further, the Presidential proclamation suspended the operation of the provisos to Article 3, which mandated the concurrence of the J&K assembly to pass a reorganization Act. Consequently, the Parliament could bifurcate J&K and downgrade it to a Union Territory without soliciting the views of the elected body representing the people of J&K

Law on the issue -Requirements for permitting above act to the central Government during president Rules

“Actions which are taken during the subsistence of a Proclamation must bear a proximate relationship with the need to discharge the exigencies of governance 

The ultimate object and purpose of the constitutional arrangement envisaged in the article is to restore the functioning of the constitutional machinery in the state.

 Legislative and executive action has to bear a proximate relationship to the object and purpose underlying the suspension of the constitutional machinery in the state”

The court rejected the argument of petitioners that Union cannot take actions of irreversible consequences in the State during Presidential rule

The Court further held that the views of the concerned State regarding the proposed reorganization, expressed as per proviso to Article 3, are not binding on the Parliament.

"..The views of the Legislature of the State are not binding on Parliament in terms of the first proviso to Article 3. The views of the Legislature of the State under the first proviso to Article 3 are recommendatory to begin with," the Court held. The precedent laid down by a 5-judge bench in Babulal Parate v. State of Bombay (1959) was followed in this regard.

Therefore, the Court held that the Parliament passing the reorganization Act when the State Assembly was dissolved and the State was placed under Presidential rule was not a mala fide exercise, since the views of the State legislature are not binding in any case.

"..The views of the Legislature of the State are not binding on Parliament in terms of the first proviso to Article 3. The views of the Legislature of the State under the first proviso to Article 3 are recommendatory to begin with

Reference was made to the judgment in Babulal Parate v. State of Bombay (1959) that the views of the State legislature regarding the reorganisation of that State were not binding on the Parliament.

Finally Supreme Court held:

1)      The Parliament has the authority to carve out a Union Territory from a State, without the consent of the State.

2)      Union Government has the power to make irreversible and fundamental changes to a State's policy when it is placed under the President's rule

3)      The Parliament has not downgraded a State while carving into a Union Territory. It is held on the basis of Union Government's assurance, albeit without a specified timeframe, that the statehood of Jammu and Kashmir would be restored. Hence it is not downgrading the state into Union Territory

4)      The Court did not adjudicate upon the validity of the reorganisation of J&K into Union Territory (UT). However, the carving out of Ladakh as UT was upheld.

5)      The views of the State are merely recommendatory and not binding on the Parliament

Justice Sanjiv Khanna, in his separate but concurring judgment, sounded a word of caution, by saying:

"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".

·         Court Need Not Adjudicate On Validity Of President's Rule

The court held that it need not adjudicate on the validity of the presidential proclamations announcing President's Rule in the State since petitioners did not challenge the same. In any case, the court found that no material relief could be given as the President's Rule was withdrawn in October 2019.

·         Every decision of Union when State is Under President's Rule cannot be Challenged

The court held that there are limitations on power of the Union and States when proclamation of presidential rule was in force. It stated that the scope of the power of Union depends on the circumstances. The court added that the exercise of power under Article 356 must have a reasonable nexus with the object of the proclamation. Further, the court stated that there were innumerable decisions taken by Union on behalf of States. Thus, it added, "Every decision taken by Union on behalf of State during Presidential rule not open to challenge...this will lead to the administration of state to a standstill..."

Part-C

 

Issue in question :Whether Article 370 was a temporary provision

The Supreme Court on December 11 upheld the validity of the Union Government's 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution. The Court held

1.      That the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian Constitution to the State of J&K. It was held that Article 370 was a temporary provision.

2.      That the carving out of Ladakh as UT was upheld.

3.      The Court also issued a direction to the Election Commission of India to take steps to hold elections to the J&K Legislative Assembly by September 30, 2024.

"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," stated the judgment of CJI DY Chandrachud.

 

4.      In his judgement, Justice SK Kaul recommended the setting up of an impartial "Truth and Reconciliation Committee" to investigate and report on the violations of human rights both by the State and non-state actors at least since 1980s and recommend measures for reconciliation.

5.      He added that the exercise of the committee shall be carried out in a time-bound manner. However, considering the sensitivities of the matter, he held that it was for the government to decide the manner in which the Truth and Reconciliation Commission must be set up.

 

Part-D

Justice Kaul Recommends "Truth & Reconciliation Commission" To report Human Rights Violations in Jammu & Kashmir

Key points of Justice Sanjay Krishan Koul Recommendations

1.      Justice Sanjay Kishan Kaul, in his judgment approving the repeal of the special status of Jammu and Kashmir under Article 370 of the Constitution, recommended the setting up of a "Truth and Reconciliation Commission" to investigate and report on the human rights violations carried out by both the State and non-State actors in the Kashmir valley at least since 1980s.

2.      That the valley of Kashmir carried a "historical burden" and the people residing there have been victims of conflicts particularly migration of "one part of the population" - Kashmiri Pandits- to other parts. Since the situation threatened the sovereignty and integrity of India, the Army had to be called in.

"Army is meant to fight battles with enemies of the State and not really to control the law and order situation within the State. But then, these were peculiar times. The entry of the Army created its own ground realities and in their endeavour to preserve the integrity of the State and the nation against foreign incursions, the men, women and the children of the State paid a heavy price,"