Explained: How Supreme Court dealt with Article 370 by answering three key questions

After 16 days of hearing, the Indian Supreme Court in a unanimous ruling upheld the Narendra Modi government’s decision in 2019 to scrap Article 370 of the Indian Constitution that guaranteed special rights to the erstwhile state.

It also declared valid the central government’s move to carve out a separate union territory of Ladakh from Jammu and Kashmir in August.

While pronouncing the verdict on Monday (Dec 11), Chief Justice of India DY Chandrachud said that the top court came out with three judgements in response to a cluster of petitions filed against the government.

“I will read out the essence. There are three judgments. One by CJI for himself for J Gavai and Surya Kant. There is a concurring opinion by Justice Kaul. Justice Sanjiv Khanna has concurred with both,” Chandrachud said in the opening remarks.

The three judgements pertained to.

1) Whether substitution of ‘constituent assembly’ by legislative assembly by using Article 370(1)(d) was valid.

2) Whether the Presidential rule imposed in December 2018 and subsequent extensions valid, and;

3) Whether the J&K Reorganisation Act bifurcating the state into two Union Territories was constitutionally valid.

But before delving into the judgement, let’s see what Article 370 was.

Article 370 gave Jammu and Kashmir its own Constitution and decision-making rights for all matters barring defence, communications and foreign affairs. Its removal ended the special status to the state.

Contained within Article 370 was Article 35A, which allowed the erstwhile state to define who it acknowledged as permanent residents and gave special rights, such as government jobs and owning property.

However, as mentioned in the constitution, and pointed out by the court during the judgement, Article 370 was a temporary measure.

In 1951 a Constitution Assembly was elected for Jammu and Kashmir to formulate the constitution of Jammu and Kashmir within the ambit of Indian Constitution, and ‘subjects in respect of which the state should accede to the Union of India.

And it was understood that this Assembly would have the authority to determine the future course of Article 370.

In the 2019 Presidential orders, Parliament brought a provision giving new meaning to “constituent assembly of Jammu and Kashmir”, to mean “Legislative Assembly of Jammu and Kashmir”, and then assumed the powers of the Legislative Assembly through President’s rule to revoke Article 370.

The petitioners objected to it asking whether these actions could be taken by the Union assuming powers of the state when it is under President’s rule.

The top court upheld the proclamations by referring to the landmark 1994 ruling in ‘SR Bommai v Union of India’ which dealt with the powers and limitations of the Governor under President’s rule.

CJI DY Chandrachud said that the governor (President in J&K’s case) can assume “all or any” roles of the state legislature and such action must be tested judicially only in extraordinary cases.

Citing an interpretation of the Bommai ruling, the SC said that there is “no prima facie case that the President’s orders were malafide or extraneous exercise of power.”

“The J&K constituent assembly was not intended to be a permanent body. It was formed only to frame the Constitution. The recommendation of the Constituent Assembly was not binding on the President,” said Chief Justice Chandrachud.

While delving into the topic of Jammu and Kashmir having a special status which allowed it to enjoy autonomy within the federal structure of the Indian political system under Article 370, the Supreme Court held that J&K did not retain any element of sovereignty after its accession to India in 1947.

“The state of Jammu and Kashmir does not have internal sovereignty different from other states. Whether Jammu and Kashmir retained an element of sovereignty or internal sovereignty when it joined the Union of India, we have held no,” CJI said.

During the rule of Maharaja (king) Hari Singh, the erstwhile ruler of the princely Jammu and Kashmir state, he proclaimed that he would retain his sovereignty, the court said, adding, however, his successor Karan Singh issued another proclamation that the Indian Constitution would prevail over all other laws in the state.

The court ruled that the subsequent proclamation had the effect of a merger like every other princely state that joined India.

The court concluded that Jammu and Kashmir has always been an integral part of India, with CJI Chandrachud citing Section 3 of the J&K Constitution itself, apart from Article 1 and 370 of the Indian Constitution.

Article 3 of the J&K Constitution reads: “The State of Jammu and Kashmir is and shall be an integral part of the Union of India.”

The Supreme Court upheld the government’s decision to revoke Article 370 saying that it was a temporary, transitional provision.

While delivering its judgement, the bench said it took a textual reading of the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution dealing with temporary provisions.

“We hold that Article 370 is a temporary provision. It was introduced to serve transitional purposes to serve an interim process. It was for a temporary purpose because of war conditions in the State. Textual reading also shows it is a temporary provision and thus it was placed in part 21 of the Constitution,” Justice Chandrachud said.