Date : 13/12/2023

Relevance: GS Paper 2 - Polity

Keywords: Article 370, S.R. Bommai Case, Constitutional Bench, CJI

Context-

In a landmark 5-0 unanimous ruling, the Supreme Court of India upheld the Centre's abrogation of Article 370 of the Constitution on Monday. Led by Chief Justice of India (CJI) D Y Chandrachud, a Constitution Bench deliberated on crucial aspects of the government's decision, providing a comprehensive and insightful perspective on four key issues.

Sovereignty of Jammu and Kashmir:

The petitioners contended that Jammu and Kashmir retained an element of sovereignty distinct from other princely states that merged with India in 1947. The court examined the constitutional setup of the erstwhile state, emphasizing Article 1 of the Indian Constitution, which designates India as a Union of States. Notably, Jammu and Kashmir was listed as a Part III state in the First Schedule before 2019.

The court highlighted Section 3 of the Constitution of Jammu and Kashmir, explicitly declaring the state as an integral part of India. The CJI, along with Justices B R Gavai and Surya Kant, refuted the argument that a merger agreement was necessary, asserting that the continuous exercise of power under Article 370(1) indicated a gradual process of constitutional integration. The President's declaration under Article 370(3) was deemed a culmination of this integration process.

However, Justice S K Kaul, in his concurring opinion, acknowledged J&K's internal sovereignty, citing Article 370's recognition of the Constituent Assembly. Despite this recognition, Justice Kaul concurred with the majority opinion, emphasizing that J&K's internal sovereignty did not impact the final conclusion.

Temporary or Permanent Nature of Article 370:

Arguments were presented on the permanence of Article 370, with petitioners contending its abrogation was infructuous due to the prerequisite of the now-dissolved Constituent Assembly's recommendation. Both the CJI and Justice Kaul asserted that Article 370 was always intended to be a temporary provision.

Justice Kaul argued that the temporary nature of Article 370 justified its abrogation without the Constituent Assembly's recommendation, as the provision was initially conceived as an interim measure. The CJI emphasized two aspects indicating the provision's temporariness: first, its interim status until the formation of the Constituent Assembly, and second, its adoption due to special circumstances, including war conditions in the state.

Legality of the Abrogation of Article 370:

The legal pathway for Article 370's abrogation involved two Presidential Orders – CO 272 and CO 273. CO 272 amended Article 367, redefining "Constituent Assembly of Jammu and Kashmir" to mean "legislative assembly of Jammu and Kashmir." CO 273 sought Parliament's consent to recommend the cessation of all clauses of Article 370.

Justice Kaul supported this process, while CJI Chandrachud opined that changing the meaning of the Constituent Assembly of J&K was unnecessary. According to the CJI, once the Constituent Assembly ceased to exist, the President could unilaterally abrogate Article 370 under Article 370(3).

The ruling clarified that the power under Article 370(3) did not cease with the dissolution of the Constituent Assembly but only affected the transitional power recognized in the proviso to Article 370(3).

Action Taken Under President's Rule:

The petitioners contested the Union's actions under President's rule, asserting that irrevocable actions were taken without the state's consent. The court referred to the 1994 Bommai ruling, which established the parameters for the proclamation of President's rule. Both the CJI and Justice Kaul emphasized that the validity of the President's action should be assessed based on whether it was mala fide or palpably irrational.

Relying on Bommai, the court asserted that the petitioner and the Union government must demonstrate mala fides, rejecting the argument that irrevocable actions under President's rule automatically imply mala fides. The ruling emphasized the need to consider the advisability and necessity of the action taken by the President.

Conclusion:

In concluding its analysis of the challenges to the abrogation of Article 370, the Supreme Court has provided a comprehensive and nuanced understanding of the constitutional intricacies involved. The unanimous ruling reaffirms the constitutional validity of the decision to make the entire Constitution of India applicable to Jammu and Kashmir.

The court's examination of Jammu and Kashmir's sovereignty, the temporary nature of Article 370, the legality of its abrogation, and actions taken under President's rule reflects a careful balancing of constitutional principles. While the majority opinion, led by CJI Chandrachud, underscores the gradual process of integration and the temporary nature of Article 370, Justice Kaul's concurrence acknowledges the unique circumstances of J&K's accession to India.

This ruling not only settles a long-standing legal dispute but also contributes significantly to the constitutional jurisprudence surrounding the relationship between the Union and its constituent states. As India navigates complex constitutional issues, this decision sets a precedent for the interpretation and application of key provisions in the evolving landscape of Indian governance.

Source- Indian Express