Together, the three judgments, authored by the Chief Justice of India, D.Y.Chandrachud, on behalf of himself and Justice B.R.Gavai and Justice Surya Kant, and the ones by Justice Sanjay Kishan Kaul and Sanjiv Khanna, in the In re Article 370 case broadly make the point that ends are more important than the means when it comes to constitutional amendments. The goal of making Article 370 inoperative was legitimate in itself, and therefore, the means adopted to achieve it cannot be elevated as a test to determine the validity of the goal itself, the judgment would seem to suggest.
To those who believe that means are as important as the ends, and that ensuring means are as legitimate as the ends would contribute to constitutional justice, the judgment could be deemed as a setback.
The unanimous verdict of the Bench found the petitioners’ many contentions unsustainable, partly because of the ends versus means debate, wherein the Bench favoured the ends, even if means proved to be vulnerable.
President’s rule: Text and the practice
Most of the Bench’s so-called findings are merely academic. Thus, the Bench says that there are limitations on the power which can be exercised by the Union government in the state during a Proclamation of President’s rule under Article 356. One wonders what is the use of devoting several paragraphs to this issue, when it is preceded by the Bench’s finding that the pleadings of the petitioners in the writ petitions indicate that their principal challenge is to the abrogation of Article 370 and whether such an action could have been taken during the President’s rule.
The Bench’s reply to the petitioners on this issue is that even if the court holds that the Proclamation could not have been issued under Article 356, there would be no material relief which could be given in view of the fact that President’s Rule was revoked in the State of Jammu and Kashmir on October 31, 2019, when it was split into two union territories, Jammu and Kashmir and Ladakh.
During the imposition of the President’s rule, there may be hundreds, if not thousands of decisions that need to be taken by the President and Parliament on behalf of the state government to ensure the day-to-day administration of the State continues and the impact of the President’s rule on the daily life of citizens is reduced. If every action taken by the President and Parliament on behalf of a State was open to challenge, this would effectively bring to the Court every person who disagreed with an action taken during the President’s rule, the Bench observed. Such an approach would be contrary to the express text of Articles 356 (1)(a), 356 (1)(b), and 356 (1)(c) which entrusts the governance of the State with the Union Executive and Parliament during the period of President’s rule, the Bench added.
Also read: The Supreme Court’s Article 370 Judgment is Injustice Writ Large
Judicial restraint
There is another reason why the level of judicial oversight over the actions taken during the imposition of the President’s rule may not be as strict as suggested by the petitioners, the bench pointed out. Most actions taken by the President for the interim governance of the State can be reversed by the State Government when it returns to power. Any orders passed, appointments made, decisions taken by the President can subsequently be rescinded or reversed by the State Government upon a return to normalcy. Similarly, even if Parliament were to enact legislation on behalf of the State Legislature, such legislation could subsequently be repealed by the State Legislature upon the Proclamation under Article 356 ceasing to operate.
Representational image. Security forces have been deployed after two migrant wokers were killed in Shopian district of Jammu and Kashmir on October 17, 2022. Photo: Jehangir Ali
Thus, the political process can correct itself and any differences that have arisen between the democratic will of the people exercised through their elected representatives in the State,and the decisions taken by the President and Parliament, can be ironed out upon a return to normalcy, the Bench hoped. “For these reasons, we do not believe that the Court ought to sit in appeal over every decision taken by the President during the imposition of Article 356”, the Bench observed. One wonders whether the Bench abandoned judicial scrutiny on mere probabilities and hypotheses, and on sheer optimism of the political process correcting itself in the long run. One would assume that these are two distinct realms, and need not influence each other.
When a Proclamation under Article 356 is in force, there are innumerable decisions which are taken by the Union Government on behalf of the State Government for the purpose of day-to-day administration, the Bench pointed out. Every decision and action taken by the Union Executive on behalf of the State is not subject to challenge, it observed. Opening up a challenge to every decision would lead to chaos and uncertainty, it apprehended. It would in effect put the administration in the State at a standstill, it added. “This Court would enter into the question of whether it was a valid exercise of power only when the petitioner makes a prima facie case that exercise of power is mala fide or extraneous. After the petitioner makes a prima facie case, the onus shifts to the Union to justify that the exercise of power had a reasonable nexus with the object of the Proclamation”, the Bench observed.
Challenging the exercise of power on the ground of irreversibility would open the way for challenging every day administrative actions, the Bench elaborated. “Hence, we cannot accept the proposition which has been urged on behalf of the petitioners that the exercise of power by the President under Article 356 of the Constitution can be challenged on the ground that it has given rise to irreversible consequences”, the Bench added. Clearly, every irreversible consequence is not subject to challenge, but only those with potential impact on democracy and pluralism, which the Bench seems to have missed here.
Also read: Four Important Takeaways From the Supreme Court Ruling on Jammu and Kashmir
Sovereignty claim demolished
The State of Jammu and Kashmir did not retain any element of sovereignty after the execution of the Instrument of Accession (IoA) and the issuance of the Proclamation dated November 25, 1949 by which the Constitution of India was adopted, the Bench ruled. The State did not have ‘internal sovereignty’ which was distinguishable from the powers and privileges enjoyed by other States in the country, the Bench suggested.
The Bench reasoned that if the position that Jammu and Kashmir has sovereignty by virtue of Article 370 were to be accepted, it would follow that other States which had special arrangements with the Union also possessed sovereignty.
A temporary provision
The bench considered Article 370 a temporary provision based on the historical circumstances surrounding the state’s accession, and its drafting history.
It thus saw the Article 370 as an interim arrangement until the Constituent Assembly was formed. This was largely because of the law and order of the State.
On Monday, the bench overwhelmingly relied on how Article 370 in Part XXI of the Constitution – titled “Temporary and Transitional Provisions” – was placed when the Constitution was adopted in 1950. The chapter heading, the bench rightly noted, was substituted by “Temporary, Transitional and Special Provisions” in 1962.
To facilitate better understanding, the bench compared Article 370 with similar provisions in Part XXI, which were temporary or transitional. They were designed to be temporary – either with reference to time or with reference to the occurrence of an event. Some provisions were transitional so as to facilitate the transfer of power from the institutions functioning under the Government of India Act 1935 to the institutions which would take over after the commencement of the Constitution. The temporary and transitional provisions were gradually phased out after the commencement of the Constitution, by repeal.
The ambit of Part XXI was expanded to include special provisions after 1962. Many special provisions pertaining to certain north-eastern states and other States were included Examples include Articles 371-B to 371-J.
The bench then relied on the marginal note to Article 370, to hold that it appears to furnish some guidance on the purpose and intent underlying the adoption of the provision, though it cannot control its plain meaning.
The marginal note states that it deals with temporary provisions with respect to the state of Jammu and Kashmir.
According to the bench, there are intrinsic reasons in Article 370 which support the view that the provision was not intended by the framers to be a permanent feature of the Constitution at the date of the adoption of the Constitution. Part XXI of which Article 370 is a part which specifies temporary and transitional provisions. In certain cases, the temporary provisions contained in Part XXI had a restriction with reference to the time over which they would operate.
All these provisions, whether defined with reference to time or otherwise were temporary or, as the case may be, transitional in nature, the bench suggested.
Article 370 was couched amidst other temporary and transitional provisions with a marginal note which indicates that its provisions were temporary. Article 370 was adopted at a point of time when the Maharaja of Jammu and Kashmir had acceded to the Dominion of India by executing an IoA. Textually, Article 370(1)(c) made it abundantly clear that Article 1 was to apply in its entirety to the State unlike other provisions of the Constitution, the application of which was to be governed by the requirement of consultation or, as the case may be, concurrence, the bench explained.
If the contention of the petitioners on the interpretation of Article 370 vis-à-vis the dissolution of the Constituent Assembly is accepted then Article 370(3) would become redundant and the provision would lose its temporary character. This would be contrary to holding that Article 370 is a temporary provision, the bench reasoned.
Article 370 has used the expression “exceptions and modifications” at two distinct places: first, in sub-clause (d) of clause (1); and second in clause (3). In both cases, the power to specify exceptions and modifications is entrusted to the President; in the case of sub-clause (d) in relation to the application of the other provisions of the Constitution in relation to the State and in clause (3), if the President orders that the provisions of Article 370 shall cease to be operative, the bench explained.
If the President exercises the power under Article 370(3) issuing a notification that Article 370 ceases to exist, the State of Jammu and Kashmir would be fully constitutionally integrated with India similar to the other States, the bench added.
So, the power under Article 370(1) and Article 370(3), even when exercised to its fullest extent, does not freeze the system of integration contemplated by Article 370.
It was intended to enhance constitutional integration between the Union and the State of Jammu and Kashmir. Holding that the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would lead to freezing of the integration contrary to the purpose of introducing the provision, the bench elaborated.
A provision is temporary when the provision ceases to exist even without the exercise of the amending power either through the lapse of time or the absence of certain conditions. The provision could be temporary because of the time frame, that is, the provision states it would cease to have effect after the lapse of a particular time period or it could be temporary in view of the existence of specific circumstances. If Article 370 can only be repealed in the same manner as other provisions which are not placed within Part XXI, the distinction between temporary and other provisions is lost, the bench further added.
Union of India’s contention
The bench disagreed with Union of India’s submission that the terms ‘Legislative Assembly’ and ‘Constituent Assembly’ were used synonymously in the Constitution. The Union government averred that the two organs were coequal in the context of the state of Jammu and Kashmir.
The bench answered that Sub-clause (d) was inserted in recognition of the state of affairs which existed at the time, namely, that the Constituent Assembly had enacted certain laws for the State prior to the constitution of the Legislative Assembly. This does not indicate that the two organs were at par with one another, the bench pointed out. While the Constituent Assembly may have discharged the functions of the Legislature for some time, its role did not end there. The task of framing a Constitution is different from the function of enacting laws, the bench observed.
The bench, however, disagreed with petitioners who alleged non-application of mind by the Union Government. Non-application of mind cannot be claimed merely because the Constitution Order applies all provisions of the Constitution to Jammu and Kashmir in one go, the bench reasoned.
The power under Article 370(3) did not cease to exist upon the dissolution of the Constituent Assembly of Jammu and Kashmir. When the Constituent Assembly was dissolved, only the transitional power recognised in the proviso to 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), the bench held.
The bench declared Paragraph 2 of CO 272 by which Article 370 was amended through Article 367 as ultra vires Article 370(1)(d) because it modifies Article 370, in effect, without following the procedure prescribed to modify Article 370. An interpretation clause cannot be used to bypass the procedure laid down for amendment, the bench reasoned.
“Article 370 cannot be amended by exercise of power under Article 370(1)(d). Recourse must have been taken to the procedure contemplated by Article 370(3) if Article 370 is to cease to operate or is to be amended or modified in its application to the State of Jammu and Kashmir”, the bench explained.
However, the bench disagreed that the exercise of power by the President under Article 370(1)(d) to issue CO 272 is mala fide. The President, in exercise of power under Article 370(3), can unilaterally issue a notification that Article 370 ceases to exist, the bench held.
The President did not have to secure the concurrence of the Government of the State or Union Government acting on behalf of the State Government under the second proviso to Article 370(1)(d) while applying all the provisions of the Constitution to Jammu and Kashmir because such an exercise of power has the same effect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the State Government was not required, the bench said.
However, the bench held Paragraph 2 of CO 272 issued by the President in exercise of power under Article 370(1)(d) applying all the provisions of the Constitution of India to the State of Jammu and Kashmir as valid. Such an exercise of power is not mala fide merely because all the provisions were applied together without following a piece-meal approach, the bench reasoned.
The President had the power to issue a notification declaring that Article 370(3) ceases to operate without the recommendation of the Constituent Assembly. The continuous exercise of power under Article 370(1) by the President indicates that the gradual process of constitutional integration was ongoing. The declaration issued by the President under Article 370(3) is a culmination of the process of integration and as such is a valid exercise of power. Thus, CO 273 is valid, the bench held.
The bench made a virtue of its omission to examine the validity of downgrading Jammu and Kashmir’s statehood to union territory by making it appear to be based on Solicitor General Tushar Mehta’s promise that the Centre will consider restoring statehood. But the bench could as well have said as follows: “It was only a means. Damn it!”