Article 370 abrogation 'valid', hold J&K polls by Sep '24: Supreme Court

In a unanimous decision, a five-judge Constitution Bench of the Supreme Court upheld Parliament’s 2019 decision to repeal the special status of Jammu & Kashmir under Article 370 of the Constitution, a move that the central government sees as a vindication.

The court declined to rule on the validity of a 2019 law that bifurcated Jammu & Kashmir into two Union Territories and instead ordered the restoration of J&K’s statehood as soon as possible. It also directed the Election Commission to hold Assembly elections in J&K by September 30, 2024.
 

The leadership of the Bharatiya Janata Party and the Rashtriya Swayamsevak Sangh welcomed the verdict, as the repeal of Article 370 had been a core agenda of the Sangh Parivar for decades. Prime Minister Narendra Modi called the judgment “historic”, affirming the constitutionality of Parliament’s decision on August 5, 2019.
 

But the Congress’ P Chidambaram said: “Prima facie, we respectfully disagree with judgment on how Article 370 was abrogated.” He, however, welcomed the SC order on the restoration of full statehood of Jammu and Kashmir. The party said the Assembly elections should be held immediately in J&K. 

In Kashmir, Peoples Democratic Party chief Mehbooba Mufti termed the verdict “nothing less than a death sentence”, adding that it marked the defeat of the idea of India with which the Muslim-majority state had acceded in 1947. Turn to Page 5 >

The National Conference’s Omar Abdullah said his party’s struggle would continue.




 

Article 370, included in the Constitution on October 17, 1949, exempted J&K from the Indian Constitution (except Article 1 and Article 370 itself) and permitted the state to draft its own Constitution and have its own flag. It limited Parliament's legislative powers in respect of the state.
 

Chief Justice of India (CJI) D Y Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant upheld Parliament’s abrogation of Article 370, characterising it as a “temporary provision” due to “war conditions” in Jammu & Kashmir.

 “We hold that Article 370 is a temporary provision. It was introduced to serve transitional purposes, to provide for an interim arrangement until the Constituent Assembly of the state was formed and could take a decision on the legislative competence of the Union on matters other than the ones stipulated in the instrument of accession and to ratify the Constitution. Second, it was for a temporary purpose, an interim arrangement, in view of the special circumstances because of the war conditions in the state,” the Bench said.

The ruling was on a batch of over 20 petitions challenging Parliament's abrogation of Article 370. The petitioners had described it as an attack on federalism and a fraud on the Constitution. Following the abrogation, Parliament passed the Jammu and Kashmir Reorganisation Act, bifurcating the state into the two Union Territories of Jammu & Kashmir, and Ladakh.

The Bench refused to interfere with this bifurcation. In agreement with the views of Solicitor General Tushar Mehta, who represented the Centre, the court stated:

“In view of the submission made by the solicitor general that statehood of Jammu & Kashmir would be restored, we do not find it necessary to determine whether the reorganisation of the state of Jammu & Kashmir into two Union Territories of Ladakh and Jammu & Kashmir is permissible under Article 3 (Parliament is empowered to make law relating to the formation of new states and alteration of existing states).”

The bench authored three concurring judgments in total. One was authored by Chief Justice Chandrachud on behalf of himself, Justice Gavai, and Justice Kant. Justices Kaul and Khanna authored separate concurring judgments.

The apex court said the President was empowered to issue the order to abrogate Article 370. “Article 370(3) was introduced for constitutional integration and not for constitutional disintegration. Holding that 370(3) cannot be used after the constituent assembly was dissolved cannot be accepted," it said.

By saying this, the Bench upheld Constitutional Order 272, issued by the President on August 5, 2019, which made provisions of the Constitution of India applicable to Jammu and Kashmir.

The Supreme Court also refused to rule on the validity of the Presidential rule imposed in the state of Jammu & Kashmir on December 2018, saying that “every decision taken by Union on behalf of state during Presidential rule is not open to challenge” as “this will lead to the administration of state to a standstill”.

At the end of the hearing, Justice Kaul penned an epilogue recommending the establishment of a Truth and Reconciliation Commission to address human rights violations in the region by both state and non-state actors since the 1980s.

“The commission should be set up expeditiously before memory escapes. The exercise should be time-bound. There is already an entire generation of youth that has grown up with the feeling of distrust, and it is to them that we owe the greatest day of reparation,” he said.

Justice Kaul said that there have been numerous reports documenting human rights violations over the years. “Yet, what is lacking is a commonly accepted narrative of what has happened or, in other words, a collective telling of the truth,” he emphasised.

He said that truth-telling will provide an opportunity for the men, women and children who have suffered a lot in the state to narrate their stories, and facilitate acknowledgement from those responsible for perpetuating the wrong. This will pave a way for reconciliation, he added.

He however, cautioned that the Commission should not turn into a criminal court but enable people to share what they have been through a humanised process.

The court heard the matter for 16 days before reserving its verdict on September 5.