Various stakeholders should make efforts to rebuild J&K as a full-fledged state
“The verdict is historic as it aims to rectify past blunders, such as appointing Lord Mountbatten Chairman of the Defense Committee at the start of the 1947-48 Kashmir war, when the Army Generals on both sides (India and Pakistan) were British; referring the matter to the United Nations; accepting a ceasefire when the Indian Army was in a winning position; and finally, accepting a plebiscite proposal on Mountbatten’s advice. Article 370 was in continuation of these blunders. Even though the Article was inserted as a temporary provision to enable full federalization on a par with other states, the provision was kept alive, leading to calls for a settlement with Pakistan and the involvement of the Hurriyat Conference. And in this backdrop, terrorism took root. It was on August 5, 2019, that the Modi government scrapped Article 370; this led to litigation challenging the constitutional validity of the decision.”

In a landmark verdict, the Supreme Court upheld the Centre’s decision to abrogate Article 370 of the Constitution. The judgment put the judicial seal of approval on the proclamations issued by the President over four years ago that not only de-operationalized Article 370 but also applied provisions of the Constitution to Jammu and Kashmir as are applicable to other states. It also affirmed the proclamation under Article 356 and the creation of the UT of Ladakh. The court allowed the UT of Jammu and Kashmir to continue as such for some time in view of the Solicitor General’s statement that withdrawal of statehood was a temporary measure.

Justice Kaul has recommended the constitution of a Truth and Reconciliation Commission for giving a hearing to the people of J&K. The lead judgment was authored by Chief Justice of India (CJI) DY Chandrachud on behalf of himself, Justice Surya Kant and Justice BR Gavai. Justice Sanjay Kishan Kaul and Justice Sanjiv Khanna concurred with the judgment.

The verdict is historic as it aims to rectify past blunders, such as appointing Lord Mountbatten Chairman of the Defense Committee at the start of the 1947-48 Kashmir war, when the Army Generals on both sides (India and Pakistan) were British; referring the matter to the United Nations; accepting a ceasefire when the Indian Army was in a winning position; and finally, accepting a plebiscite proposal on Mountbatten’s advice. Article 370 was in continuation of these blunders. Even though the Article was inserted as a temporary provision to enable full federalization on a par with other states, the provision was kept alive, leading to calls for a settlement with Pakistan and the involvement of the Hurriyat Conference. And in this backdrop, terrorism took root. It was on August 5, 2019, that the Modi government scrapped Article 370; this led to litigation challenging the constitutional validity of the decision.

A major issue was whether Article 370 was permanent and could not be abrogated. One contention was that it was the result of a formal compact. The court negated the contention and held that in view of its locus in the Constitution and the marginal note, Article 370 was a temporary provision. Its objective was to gradually bring J&K on a par with other states. The court referred to a series of previous orders issued by the President to apply more and more provisions of the Constitution to J&K and said that those orders also supported the inference that Article 370 was temporary.

Another major contention was that Maharaja Hari Singh, while acceding on three subjects, had reserved residuary sovereignty, and the J&K Constitution was a product of a sovereign J&K Constituent Assembly; hence, the President’s order could not abrogate Article 370 so as to annul the J&K Constitution. This, too, did not find favor with the court. The CJI stated that after the execution of the Instrument of Accession and the issuance of the proclamation of November 1949, the state of J&K became fully integrated with India and was part of its territory; thus, no sovereignty was left with Yuvraj Karan Singh. The J&K Constitution was held to be subservient to the Constitution of India and would, therefore, automatically get erased upon abrogation of Article 370. Justice Kaul accepted that there was some internal sovereignty left with J&K, but agreed that this would stand terminated upon the issuance of the proclamation by the President under Article 370(3). This provision does not require any consultation with the J&K government, and the proviso about the recommendation of the J&K Constituent Assembly ceased after its dissolution. But the cessation of the Constituent Assembly did not have the effect of taking away the power of the President in the main part. So, the President validly issued the impugned constitutional orders (272 and 273). He could order the application of all provisions of the Constitution to J&K.

The court also upheld the proclamation under Article 356, while accepting that it was subject to judicial review on the grounds mentioned in the SR Bommai case. The court noted that none of the proclamations could be said to be issued mala fide. The court, however, struck down paragraph 2 of constitutional order 272, which sought to amend the proviso to Article 370 by substituting the Legislative Assembly of J&K for the Constituent Assembly, saying that such an amendment was not permissible. This would have no impact on the abrogation proclamation as that was sustainable under Article 370(3) itself.

Citing Article 3 of the Constitution, the court upheld the creation of the UT of Ladakh, but it left open the question of law about the conversion of a state in view of the basic features of federalism and representative democracy, even as the Solicitor General stated that the deprivation was temporary and statehood of J&K would be restored soon. The court directed holding of elections by September 2024 and restoration of statehood at the earliest.

Justice Kaul, who hails from J&K, wrote an interesting epilogue recommending the constitution of a Truth and Reconciliation Commission on the pattern of South Africa or some such mechanism, wherein people of J&K could be given a hearing in order to resolve their grievances. This was a recommendatory observation, which was not echoed by other judges.

It is hoped that various stakeholders would accept the new situation and move on to rebuild J&K as a full-fledged state like the others, with citizens enjoying constitutional rights.
(The author is a Senior Advocate, Supreme Court of India)