Monday, April 22, 2024

The Executive cannot challenge the Sovereignty-SC 

Dr.Madabhushi Sridhar Acharyulu, 

Professor and Advisor of School of Law,

Mahindra University, Hyderabad.

A five-judge constitution bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant passed the judgment on December 11, has unanimously upheld the abrogation of Article 370 but directed that the statehood of Jammu and Kashmir be restored “at the earliest” and “as soon as possible”. 

CJI Chandrachud said: “We direct that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by 30 September 2024.

The court also has upheld the validity of the Union Government’s 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution. The court held that the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian Constitution to the State of J&K. It was held that Article 370 was a temporary provision.

Important Issues before the Supreme Court are:

From Temporary to permanency  

  • Whether provisions of Article 370 are temporary or whether they acquired the status of permanence?

Reference to Constitutional Assembly replaced as ‘legislative assembly’

  • Whether amendment to Article 367 through the exercise of power under Article 370(1)(d) to substitute the reference to ‘constituent assembly’ by ‘legislative assembly’ is constitutionally valid?
  • Also read: For crime “defamation”, new Nyaya punishments

Can the Constitution apply to J&K?

  • Whether entire Constitution of India could have been applied to J&K under Article 370(1(d))?

Is the abrogation of Art 370 valid?

  • Whether abrogation of Article 370 by the President invalid for lack of recommendation of J&K Constituent Assembly as mandated by the proviso to clause (3)?

Whether dissolving Assembly is valid?

  • Whether the proclamation of the Governor dissolving the legislative assembly of the state constitutionally valid?

Validity of Presidential Rule and extensions 

  • Whether the Proclamation of Presidential rule imposed in December 2018 and subsequent extensions valid?

Validity of Bifurcating the State 

  • Whether the J&K Reorganisation Act 2019 bifurcating the State into two Union Territories constitutionally valid?

Conversion of status to UT

  • Whether during the tenure of proclamation under Article 356 and when the legislative assembly of the State is dissolved, the status of J&K and its conversion into UT valid exercise of power?

The Conclusions which were the basis of the Judgment 

The Bench Supreme Court has considered each question (or issue) that was examined based on the arguments and several conclusions of the Judges, forming into final ‘judgement. 

The points above are not by the numbers but the substantive points were answered as follows. 

The Validity of President’s Rule

No need to adjudicate on the validity of the President’s Rule

  • The court held that it need not adjudicate on the validity of the presidential proclamations announcing the President’s Rule in the State since petitioners did not challenge the same. In any case, the court found that no material relief could be given as the President’s Rule was withdrawn in October 2019.
  • Also read: Bharath Ratna, Rajendra Prasad, from where to where?

Cannot be challenged

When a State is under President’s Rule cannot be challenged?

  • The court held that there were limitations on the power of the Union and States when the proclamation of presidential rule was in force. It stated that the scope of the power of the Union depends on the circumstances. 
  • The court added that the exercise of power under Article 356 must have a reasonable nexus with the object of the proclamation. Further, the court stated that there were innumerable decisions taken by the Union on behalf of States. 
  • Thus, it added, “Every decision taken by Union on behalf of State during Presidential rule not open to challenge…this will lead to the administration of state to a standstill…
  • The court rejected the argument of petitioners that the Union cannot take actions with irreversible consequences in the State during Presidential rule. Further, the argument of the petitioners that the Parliament can only make the law-making powers of the State when the Presidential rule was in force was also not accepted. 
  • However, the court held that the exercise of the President’s power after the proclamation is subject to judicial review. It was held that the power of Parliament under Article 356(1) to exercise powers on behalf of the State Assembly was not restricted to law-making powers.

The Power of Sovereignty 

When it joined the Union of India, Jammu and Kashmir did not retain.  

  • The court stated that the Proclamation of Maharaja stated that the Constitution of India will supersede. With this, the court added that the paragraph of Instrument of Accession ceased to exist. 
  • The court stated that the constitutional setup did not indicate that Jammu and Kashmir retained sovereignty. 
  • The CJI, in his judgment, stated that there was a clear absence in the Constitution of Jammu and Kashmir to the reference of sovereignty and that the State of Jammu and Kashmir became an integral part of India is evident from Articles 1 and 370 of the Constitution of India. 
  • The CJI stated– “All States in the country have legislative and executive power, albeit to differing degrees. Articles 371A to 371J are examples of special arrangements for different states. This is an example of asymmetric federalism.” 
  • It added that Article 370 was a feature of asymmetric federalism and not sovereignty.
  • Also read: Demystifying the Mystery of Netaji Bose

Nature of ‘temporary provision’ 

Article 370 is a temporary provision

  • The CJI, in his judgment stated that Article 370 was held to be a temporary provision on a historical reading, as per which it was a transitory and temporary provision. The court added that the power of the President under Article 370(3) to issue a notification that Article 370 ceases to exist subsists even after the dissolution of the J&K Constituent Assembly. 
  • As per the judgment, the recommendation of the Constituent Assembly was not binding on the President. It stated that the J&K Constituent Assembly was intended to be a temporary body. When the constituent assembly ceased to exist, the special condition for which 370 was introduced ceased to exist but the situation in the state remained and thus the article continued. 
  • The court found that holding that the power under Article 370(3) ceases to exist after the dissolution of the J&K Constituent Assembly would lead to the freezing of the process of integration. 
  • The court held that the power under Article 370(3) did not cease after the J&K Constituent assembly ceased to exist.

Constitution of India and Concurrence of State Government 

Not required to apply all provisions of the Constitution of India to J&K by Article 370(1)(d).

  • The CJI stated– “This court cannot sit in appeal over the decision of the President of India on whether the special circumstances under Article 370 exist…History shows the gradual process of constitutional integration was not going on…It was not as if after 70 years Constitution of India was applied in one go. It was a culmination of the integration process.” 
  • Accordingly, it was held that all provisions of the Constitution of India could be applied to J&K using Article 370(1)(d) in one go.
  • In furtherance of the same, it was held that the exercise of Presidential Power was valid. 
  • The court held that the principle of consultation and collaboration was not required to be followed for the exercise of Presidential power and the concurrence of the State government was not required to apply all provisions of the Constitution using Article 370(1)(d). Thus, the President taking the concurrence of the Union Government was not mala fide. 
  • The court held that the views of the State legislature under Article 3 proviso were recommendatory.
  • Justice SK Kaul, in his judgment, stated – “The purpose of Article 370 was to slowly bring Jammu and Kashmir on par with the other States of India. Requirement of recommendation of J&K Constituent Assembly cannot be read in a manner making the larger intention redundant.”

Invalidity of CO 272 

Altering Article 367 is Ultra Vires Article 370.

  • The majority judgment authored by the CJI stated that while the change sought to be made by CO 272 appeared to be to Article 367 at the first blush, it effectively changed Article 370. 
  • The court found these changes to be substantive. The court stated that the interpretation clause could not be modified to amend an Article bypassing the amendment process. “We have therefore held that the amendments made to Article 370 by taking recourse to Article 367 as ultra vires,” stated the court while holding that the interpretative clause could not be used to bypass the specific route for a constitutional amendment. 
  • Permitting such amendments by such a surreptitious method would be disastrous,” stated the court. 
  • The court stated that Article 370 could not be amended by exercise of power under Article 370(1)(d). Concurring with the view taken by the CJI in the matter, Justice SK Kaul in his judgment, stated– “Regarding the amendment of Article 370 using 367, I have said when a procedure is prescribed, it has to be followed. Amendment through the backdoor not permissible.”
  • However, the finding of this issue did not materially affect the outcome, since the Court held that the recommendation of the J&K Constituent Assembly was not required for the President to declare Article 370 as inoperative.

Validity of J&K Reorganisation Act 2019 

Not necessary to be adjudicated upon, reorganization of Ladakh 

  • The court noted that the SG had submitted that the statehood of J&K would be restored and the status of UT was temporary for J&K. Given the submission made by the SG, the court stated that it did find it necessary to determine whether the reorganization of J&K into UT was valid. 
  • The reorganization of Ladakh as Union Territory was upheld as Article 3 allowed a portion of the State to be made as UT. The question of whether Parliament can convert a State into a Union Territory was left open.

Statehood of J&K 

Restore it at the earliest

  • The court directed that steps shall be taken by the Election Commission of India to conduct elections to the J&K assembly by September 30. 
  • Further, it stated that the restoration of statehood shall take place as soon as possible.

Most important conclusion is that ‘given the submission of the Solicitor General the Union’ will restore the statehood of J&K as soon as possible. This means a lot on dependence upon the system. And the Court did not adjudicate upon the validity of the reorganization of J&K into Union Territory (UT). However, the carving out of Ladakh as UT was upheld. In the process the altering Article 367 is Ultra Vires Article 370! It also means, that this altering is the final stroke at the failing rule of law.

Also read: Ayodhya, one of 108 Divya  Desams

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.


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