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SC upholds abrogation of Article 370, calls for polls by Sep 2024

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NEW DELHI: Article 370 of the Constitution, which bestowed special status on the erstwhile state of Jammu and Kashmir, was a “temporary provision”, the Supreme Court ruled on Monday.
In a landmark verdict, the apex court unanimously upheld the Centre’s August 5, 2019 decision to abrogate provisions of Article 370, while directing restoration of statehood for Jammu and Kashmir at the earliest and holding of the assembly elections by September 30, 2024.
A five-judge constitution bench headed by Chief Justice D Y Chandrachud, in its three concurring judgements, dealt with the question of whether the provisions of Article 370 were temporary in nature or they acquired a permanent status in the Constitution at the end of the J&K Constituent Assembly’s tenure in 1957.
“We have held that Article 370 is a temporary provision on a reading of the historical context in which it was included,” said the CJI, who wrote the judgement for himself and Justices B R Gavai and Surya Kant.
He said Article 370 was introduced to serve two purposes, including the transitional purpose 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 ratify the Constitution.
Justice Chandrachud said the second was a temporary purpose, an interim arrangement in view of the special circumstances because of the war conditions in the state.
“We have held that a textual reading of Article 370 also indicates that it is a temporary provision. For this purpose, we have referred to the placement of the provision in Part XXI of the Constitution which deals with temporary and transitional provisions, the marginal note of the provision which states ‘temporary provisions with respect to the State of Jammu and Kashmir’, and a reading of Articles 370 and 1 by which the State became an integral part of India upon the adoption of the Constitution,” he said. Article 1 says India, that is Bharat, shall be a Union of states and Jammu and Kashmir features in it as a state.
The CJI said if the contention of the petitioners on the interpretation of Article 370 regarding the dissolution of the Constituent Assembly was accepted, then Article 370(3) would become redundant and would lose its temporary character.
Article 370(3) of the Constitution says notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
“It can be garnered from the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution that it is a temporary provision,” the apex court concluded.
In his separate verdict, Justice Sanjay Kishan Kaul said the purpose of Article 370 was to slowly bring J&K on par with other states.
Justice Sanjiv Khanna, in his separate verdict, concurred with the CJI and Justice Kaul and gave his own reasons for the conclusion.
The petitions challenging the abrogation of the provisions of Article 370 and the validity of the Jammu and Kashmir Reorganisation Act, 2019 that divided the erstwhile state into the Union territories of Jammu and Kashmir and Ladakh were referred to the Constitution bench in 2019.

Key points from the SC’s judgment

CJI D Y Chandrachud said that the five-judge bench made three judgements in the matter, and all were unanimous.

  • Every decision taken by Union on behalf of the State is not subject to challenge, as this would eventually lead to chaos and uncertainty and would bring the administration of the State to a standstill, CJI said.
  • The Supreme Court said the argument of petitioners that the Union government cannot take actions of irreversible consequences in the State during Presidential rule is not acceptable.
  • The Supreme Court says it holds that Jammu and Kashmir did not retain an element of internal sovereignty after it acceded to India.
  • SC held that Jammu and Kashmir became an integral part of India as evident from Articles 1 and 370 of the Constitution of India.
  • Reading out the judgment CJI said, SC holds 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 Supreme Court held that the power of the President to issue a notification that Article 370 ceases to exist subsists even after the dissolution of the J&K Constituent Assembly.
  • The Supreme Court said Article 370 was meant for the constitutional integration of Jammu and Kashmir with the Union and it was not for disintegration.
  • J&K does not have internal sovereignty different from other states of the country, the CJI said.
  • The Constituent Assembly of J&K was never intended to be a permanent body, the CJI also said.
  • The Supreme Court said the 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 mala fide.
  • The SC also said that the recommendation of Constituent Assembly of J&K was not binding on the President of India.
  • The SC held the president seeking concurrence of union and not state as valid, and all provisions of the Indian constitution can be applied to J&K.
  • The restoration of statehood in Union Territory of J&K shall be done at the earliest, said the CJI.
    The Supreme Court upheld the reorganisation of Ladakh as a Union Territory.

Article 370: Timeline of developments

New Delhi: Following is the timeline of events in a case in which the Supreme Court on Monday upheld the government’s decision to abrogate Article 370 of the Constitution, which bestowed a special status on the erstwhile state of Jammu and Kashmir, and said steps should be taken to conduct the election to the Assembly in the Union Territory by September 30 next year.

  • December 20, 2018: President’s Rule imposed while exercising powers under Article 356 of the Constitution in the state of Jammu and Kashmir. Subsequently extended on July 3, 2019.
  • August 5, 2019: Centre abrogates the provisions of Article 370, bestowing a special status upon the erstwhile state of Jammu and Kashmir.
  • August 6, 2019: First petition challenging the presidential order scrapping Article 370 filed by advocate M L Sharma, who was later joined by another lawyer from Jammu and Kashmir, Shakir Shabir.
  • August 10, 2019: National Conference (NC), a prominent political party from Jammu and Kashmir, files a petition contending that the changes brought in the status of the state had taken away the rights of its citizens without their mandate.
  • August 24, 2019: Press Council of India moves the Supreme Court supporting the Centre and Jammu and Kashmir administration’s decision to impose restrictions on communications.
  • August 28, 2019: Supreme Court issues notices to the Centre, Jammu and Kashmir administration on a plea moved by Kashmir Times editor for the removal of the restrictions imposed on journalists.
  • August 28, 2019: A bench headed by then Chief Justice Ranjan Gogoi refers matter to five-judge Constitution bench.
  • September 19, 2019: Supreme Court sets up five-judge Constitution bench to hear pleas challenging abrogation of Article 370.
  • March 2, 2020: Supreme Court declines to refer to larger seven-judge bench batch of petitions challenging constitutional validity of Centre’s decision to abrogate provisions of Article 370.
  • April 25, 2022: Supreme Court agrees to consider listing after summer vacation pleas challenging Centre’s decision to abrogate provisions of Article 370 after one of the petitioners seeks urgent hearing in view of delimitation exercise being carried out in Jammu and Kashmir.
  • July 11, 2023: Supreme Court says it will commence day-to-day hearing from August 2 on petitions challenging abrogation of Article 370.
  • August 2, 2023: Supreme Court commences hearing on petitions challenging abrogation of Article 370.
  • September 5, 2023: Court reserves verdict on 23 petitions in the matter after hearing those for 16 days.
  • December 11, 2023: Supreme Court upholds government’s decision to abrogate Article 370, says steps should be taken to conduct election to Assembly in Union Territory by September 30 next year.
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