The Supreme Court of India has upheld the Indian Union Government’s decision to abrogate Article 370 of the Indian constitution which gave special status to Jammu and Kashmir and said that every decision taken by the Centre on behalf of a State can’t be subject to a legal challenge.
A five-judge Constitution bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant delivered the verdict.
The Constitution Bench was hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution and bifurcating the state into two Union Territories.
CJI Chandrachud reading out the judgement said that every decision taken by the Centre on behalf of a State under proclamation can’t be subject to a legal challenge and it will lead to the administration of the State to a standstill.
Supreme Court said that it has held that Article 370 was a temporary provision.
“The proclamation of Maharaja stated that the Constitution of India will supersede. With this, the para of Instrument of Accession ceases to exist….Article 370 was an interim arrangement due to war conditions in the State. Textual reading also indicates that Article 370 is a temporary provision,”
the Court said.
The Apex court also mentioned that the argument of petitioners that the Union government cannot take actions with irreversible consequences in the State during Presidential rule is not acceptable.
“We have held that the state of Jammu and Kashmir did not retain an element of sovereignty when it joined the Union of India. We have arrived at this conclusion for the following reasons. First paragraph eight of the instrument of accession executed by Maharaja Hari Singh provided that nothing in the instrument would affect the continuance of the sovereignty of the Maharaja in and over the state,”
CJI Chandrachud said.
The CJI further noted that on November 25, 1949, a proclamation was issued for the State of Jammu and Kashmir by “Yuvraj Karan Singh”.
“The declaration on this proclamation, that the Constitution of India would not only supersede all other constitutional provisions in the state, which were inconsistent with it but also abrogate them, achieves what could have been attained by an agreement of merger. With the issuance of the proclamation, the paragraph of the instrument of accession ceases to be of legal consequence. The proclamation reflects the full and final surrender of sovereignty by Jammu and Kashmir through its sovereign ruler to India ” CJI added further.
The Supreme Court said “The declaration issued by the President exercises the power and clause 3 of Article 370 is a culmination of the process of integration. Thus, we do not find that the President’s exercise of power under Clause 3 of Article 370 was malafide. We hold the exercise of Presidential Power to be valid.”
The Court also noted that Article 370 was meant for the constitutional integration of Jammu and Kashmir with the Union and it was not for disintegration and the President can declare that Article 370 ceases to exist.
“Concurrence of the State government was not required to apply all provisions of the Constitution using Article 370(1)(d). So, the President of India taking the concurrence of the Union government was not malafide,”
the Court noted.
The Supreme Court also directed the Election Commission to hold Jammu and Kashmir Assembly elections by September 30, 2024. The Supreme Court said given the Centre’s submission on the restoration of the statehood of Jammu and Kashmir, it directs that statehood shall be restored as soon as possible.
On September 5, the apex court reserved the judgement after hearing the arguments for 16 days.
The central government had defended its decision to abrogate Article 370, saying there was no “constitutional fraud” in repealing the provision that accorded special status to the erstwhile state of Jammu and Kashmir.
India’s Attorney General R Venkataramani and Solicitor General Tushar Mehta appeared for the Centre government.
Senior advocate Kapil Sibal, appearing on behalf of the petitioners, had opened the arguments, saying Article 370 was no longer a “temporary provision” and had assumed permanence post the dissolution of the Constituent Assembly of Jammu and Kashmir.
He had contended that the Parliament could not have declared itself to be the legislature of J-K to facilitate the abrogation of Article 370, as Article 354 of the Constitution does not authorise such an exercise of power.
On August 5, 2019, the Central government announced the revocation of the special status of Jammu and Kashmir granted under Article 370 and split the region into two union territories.
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