In a landmark decision on Monday, a Constitution Bench of the Supreme Court unanimously upheld the power of the President to abrogate Article 370 in August 2019. The move led to the reorganization of the full-fledged State of Jammu and Kashmir into two Union Territories, stripping it of its special privileges.
The five-judge Bench, led by Chief Justice of India DY Chandrachud, confirmed that the President could “unilaterally issue a notification that Article 370 ceases to exist.” The court held that the President had the power to abrogate Article 370 if “special circumstances warrant a special solution.”
“The court cannot sit in appeal over the decision of the President on whether the special circumstances which led to the arrangement under Article 370 have ceased to exist,” reasoned Chief Justice Chandrachud.
Breaking down key reasons behind the top court’s decision and its broader impact
Integration over 70 Years: The court emphasized that the abrogation of Article 370 was the result of a “gradual and collaborative exercise” spanning 70 years. This exercise aimed to integrate Jammu and Kashmir with the Union by applying the rights and obligations of the Indian Constitution to the region.
Justice Sanjay Kishan Kaul, in an epilogue, referred to witnessing the intergenerational trauma caused by violence and mass migration during his travels to Jammu and Kashmir. He proposed the setting up of a ‘Truth and Reconciliation Commission’ to reach out to the people.
The court declared the Jammu and Kashmir Constitution “redundant” and “inoperative”. “The Constitution of India is a complete code for constitutional governance,” Chief Justice Chandrachud observed.
Statehood Assurance and Elections: The court accepted the Centre’s assurance to restore Statehood to the Union Territory of Jammu and Kashmir “at the earliest.” It directed the Election Commission of India to conduct Jammu and Kashmir Assembly elections by September 30, 2024. The court found it unnecessary to examine the legality of the reorganization into the Union Territories of Ladakh and Jammu and Kashmir, ultimately upholding the carving out of the Union Territory of Ladakh.
Timing and Dissolution of State Legislative Assembly: The court noted that the abrogation occurred after the dissolution of the Jammu and Kashmir State Legislative Assembly, justifying its decision based on the revocation of President’s Rule on October 31, 2019.
Loss of Sovereignty and Asymmetric Federalism: In his lead judgment, the Chief Justice, speaking for himself, Justices BR Gavai and Surya Kant, clarified that Jammu and Kashmir had divested itself of “any element of sovereignty” after the execution of the Instrument of Accession in October 1947. The special privileges and separate Constitution were deemed features of asymmetric federalism, not sovereignty.
“The State of Jammu and Kashmir does not have ‘internal sovereignty’ distinguishable from the powers and privileges enjoyed by other States in the country,” Chief Justice Chandrachud held. At most, the special privileges and even a separate Constitution for Jammu and Kashmir was merely a “feature of asymmetric federalism and not sovereignty.”
Temporary Provision: The court held that Article 370 was a “temporary provision” designed to facilitate the accession of the princely State during internal strife and war. The power of the Parliament or President to abrogate Article 370 persisted beyond the dissolution of the Constituent Assembly of Jammu and Kashmir. Only the power of the J&K Constituent Assembly to recommend abrogation of Article 370 ceased to exist with its dissolution. The power of the President under Article 370 (3) to abrogate Article 370 had continued to prevail.
“When the Constituent Assembly dissolved, only the transitional power recognised in the proviso of Article 370(3), which empowered the Constituent Assembly to make its recommendations, ceased to exist. It did not affect the power held by the President under Article 370 (3),” Chief Justice Chandrachud clarified.
Diverse reactions to the Article 370 Judgment
The judgment has sparked a diverse range of reactions from various quarters. The ruling, seen as a resounding endorsement of the Modi government’s policies, has drawn praise, concern, and disappointment alike.
The judgment, hailed by some as the ‘Naya Kashmir Model’ and a “beacon of hope,” has been met with applause from Home Minister Amit Shah, who commended the government’s efforts in transforming the region. Shah asserted, “Earlier they used to roam with stones, but the Modi government has worked so hard that today, they are now holding laptops.”
Prime Minister Modi echoed this sentiment, describing the verdict as a “beacon of hope.” However, not all responses were in concord with the ruling. Former Jammu and Kashmir Chief Minister and National Conference Working President, Omar Abdullah, voiced unwavering commitment to a political and peaceful struggle aimed at reversing the abrogation of Article 370.
Abdullah, while respecting the Supreme Court’s decision, asserted that the fight to restore the revoked rights would persist. In a statement, he revealed restrictions on access to his home, emphasizing the need for alternative avenues to reclaim the lost rights, which would be shaped in consultation with legal counsel once the final judgment’s draft is publicized.
Characterizing the struggle as both political and constitutional, Abdullah expressed hope that the decision could be reversed in the future. He reaffirmed the commitment to continue the fight democratically, peacefully, and politically, drawing a parallel with the BJP’s persistent pursuit of its agenda since 1950.
Addressing the people of Jammu and Kashmir, Abdullah urged resilience, stating, “This is not a fight of one day, one week, or one year. It is our resolve that we will strive with utmost determination to regain our snatched rights.”
Congress MP P. Chidambaram expressed disappointment with the Supreme Court’s verdict on Article 370. He stated, “We respectfully disagree with the judgment on the manner in which Article 370 was abrogated,” and reiterated the party’s stance that Article 370 deserved to be honored until amended strictly in accordance with the Constitution of India.
Critics have questioned the Supreme Court’s decision, particularly on its failure to address certain critical questions, including the restoration of statehood and the validity of bifurcation of states into union territories. Concerns have been raised about the court’s silence on these matters, leaving them reserved for adjudication in a future suitable case.