Why Supreme Court has ruled Article 370 removal as constitutionally valid

The top court held that Article 370 was a temporary provision

The Supreme Court of India has delivered a unanimous judgment on the legality of the abrogation of Article 370 of the Constitution of India holding that the Presidential Order relating to the scrapping and the Jammu and Kashmir Reorganisation Act of 2019 enacted by Parliament was constitutionally valid.

How SC Arrived At Its Verdict

The Court held that Article 370 was a temporary provision, an interim arrangement that was introduced in consideration of the circumstances of those times like the first India-Pakistan war. With this ruling, all the claims of Jammu and Kashmir’s special status have been laid to rest.

The Court has further pronounced that the Constituent Assembly of J&K was a temporary body and therefore its absence could not prevent the Parliament from abrogating the special status. The perception that existed for a long time was that since Jammu and Kashmir did not have a Constituent Assembly, Article 370 would continue to hold. The Court also said that it cannot sit in appeal over the Presidential Declaration and Order as to whether special circumstances existed or not.

The Constitutional Order 272, by way of which the meaning of J&K Constituent Assembly was changed to J&K Legislative Assembly, was held an invalid by the Court. But this had no adverse effect as the Court held that the imprimatur of the Constituent Assembly was not required at the very instance, to abrogate Article 370.

The Court further held that Article 370 was a feature of asymmetric federalism and this cannot be interpreted as sovereignty for Jammu and Kashmir.

The Court has held that the state of Jammu and Kashmir did not retain an element of sovereignty when it joined India as the proclamation of the Maharaja of Kashmir stated that the Constitution of India will supersede. The Court further opined that Jammu & Kashmir became an integral part of India and this is evident from the language of Articles 1 and 370 of the Constitution.

On Statehood

The Court refused to delve into the question of whether the Jammu and Kashmir Reorganization Act 2019 was valid taking into account the submission of the Solicitor General that statehood would be restored. This is likely to give rise to much controversy as the Court has seemingly lowered the academic threshold required for any judicial finding. Upholding an Act of Parliament without dealing with it academically on the touchstone of Constitutional precepts should have been avoided by the top court.

This is likely to give rise to much controversy as the Court has seemingly lowered the academic threshold required for any judicial finding.

CJI Chandrachud’s judgment also gave directions to the Election Commission of India to hold elections for J&K assembly by September 30 next year and to the government to restore statehood as soon as possible. This order will ensure that democratic process gets kickstarted in the J&K so that its people can voice their opinions through their representatives. In the words of Chief Justice Chandrachud, dissent is the safety valve of democracy and therefore every effort must be made to make the people of Jammu & Kashmir realise their rights and entitlements under the Indian Constitution.

Justice Sanjay Kishan Kaul opined that the purpose of Article 370 was to bring the state of Jammu & Kashmir on par with India. Justice Kaul also recommended the setting up of a Truth and Reconciliation Committee to investigate the incidents of violations of human rights by state and non-state actors since the 1980s. This recommendation from Justice Kaul paves the way for soothing the wounds of the past which is necessary to establish trust and above all - fraternity - amongst the people.

Read : Article 370 timeline

There were three separate but concurring opinions. CJI Chandrachud authored the first one for himself, Justices BR Gavai and Surya Kant while Justices Sanjay Kishan Kaul and Sanjiv Khanna wrote separate but concurring opinions.

What Petitioners, GoI Argued

The challenge to the abrogation was premised on the nature of the process. The petitioners argued that Parliament had appropriated to itself the role of the Constituent Assembly, which, according to the petitioners, was untenable and illegal.

They said that Article 370 was a temporary provision that had become permanent and that the concurrence of the state government wasn’t taken before the far-reaching changes. They also assailed the J&K governor dissolving the Legislative Assembly without the aid and advice of the Council of Ministers.

On the other hand, the Centre had argued that the state of Jammu & Kashmir had given up on its sovereignty when it acceded to India and there cannot be two separate Constitutions to govern one country. The Centre also stood its ground that due process was followed in the whole affair.

Through this judgment, the Court has widened the scope of Parliamentary Sovereignty. India does not follow the Westminster system of Parliamentary Sovereignty, as per which the Parliament of United Kingdom is supreme. Even then the Supreme Court of UK had in 2019 ruled that the suspension of the Parliament by Boris Johnson (former UK PM) was illegal and it was set aside. The Supreme Court of India's decision today must be seen in the light of how our Constitution makers had envisioned and ordained the topmost judicial court to function. Hopefully, the jurisprudence of the country will in future, develop in the right direction and will uphold Constitutional morality.

Now it remains to be seen if the SC’s prescriptions recommending restoration of statehood, conducting elections before September 30, and constituting a Truth and Reconciliation Commission will be heeded by the Centre. The ghost of Article 370 has been laid to rest. However, how soon the people of Jammu & Kashmir, are conferred with equal democratic rights as the rest of India through restoration of the electoral process, remains to be seen.

Kaustubh Mehta is an advocate who practises in Delhi. Views are personal and do not represent the stand of this publication.