NEW DELHI, DEC 11: The Supreme Court led by Chief Justice DY Chandrachud and consisting of a five-member bench, has issued a historic ruling on Monday declaring Article 370 a temporary provision designed to facilitate Jammu and Kashmir’s integration with India.
The Supreme Court further directed the Election Commission of India to organize assembly polls in Jammu and Kashmir by September 2024, aiming to align the region with other states as soon as possible.
Chief Justice Chandrachud, reading the majority Supreme Court judgment, affirmed the Center’s decision to revoke the special status granted to Jammu and Kashmir under Article 370 of the Constitution.
The court emphasized that Article 370 was originally intended as a temporary measure to ease the region’s merger with India. Furthermore, the court called for the equalization of Jammu and Kashmir’s status with other states “at the earliest and as soon as possible,” urging the conduct of state elections by September 30, 2024.
The bench provided three separate judgments, with Chief Justice Chandrachud, Justice BR Gavai, and Justice Surya Kant endorsing one, Justice Sanjay Kishan Kaul concurring separately, and Justice Sanjiv Khanna concurring with the other two. All five judges unanimously upheld the presidential order to scrap Article 370.
The Supreme Court clarified that upon joining India, Jammu and Kashmir lost its sovereignty, and its constituent assembly ceased to exist. The court explained that the J&K constituent assembly was not intended to be permanent but formed solely to frame the Constitution, and its recommendations were not binding on the President.
While the special condition for Article 370 ceased to exist when the constituent assembly disbanded, the court noted that the situation in the state persisted, justifying the continued existence of the article.
The court emphasized that Jammu and Kashmir did not possess internal sovereignty different from other states and cited examples of asymmetric federalism in Article 371A to 371J.
Article 370 had granted Jammu and Kashmir its own Constitution and decision-making authority, excluding defense, communications, and foreign affairs. Its removal terminated the state’s special status, including Article 35A, which provided special rights to permanent residents.
The Supreme Court refrained from examining the validity of J&K’s reorganization into a Union Territory, deeming it a temporary arrangement until the restoration of statehood through elections.
The Supreme Court emphasized that it lacks the authority to scrutinize the President of India’s determination regarding the existence of special circumstances under Article 370.
Highlighting the historical context, the court noted that constitutional integration in Jammu and Kashmir did not occur abruptly after 70 years; rather, it was a gradual process culminating in the application of all provisions of the Constitution of India through Article 370(1)(d).
The Chief Justice affirmed the validity of the exercise of Presidential power through CO 273, stating that it was not mala fide.
The court declared Article 370 as a temporary provision, established as an interim arrangement during wartime conditions in the state. It clarified that Jammu and Kashmir does not possess internal sovereignty distinct from other states, dispelling the notion of retained sovereignty upon joining the Union of India.
Emphasizing the absence of a reference to sovereignty in the Constitution of Jammu and Kashmir, the court affirmed that the state became an integral part of India, evident from Articles 1 and 370 of the Constitution of India. Regarding the Presidential rule imposed in Jammu and Kashmir in December 2018, the Supreme Court declined to pass judgment on its validity, citing that it was not specifically challenged by the petitioners. The court asserted that not every action taken during the proclamation under Article 356 can be subjected to challenge.
