SNIPPET

On 11 December 2023, five senior-most judges of the Supreme Court upheld the Union
government’s action to abrogate Article 370, which granted special status to Jammu and
Kashmir (J&K). The Court further refused to comment on the constitutionality of the
reorganisation of J&K state into two Union Territories: Jammu and Kashmir and Ladakh.
Jammu and Kashmir did not retain sovereignty
 CJI Chandrachud relied strongly on a proclamation by Yuvraj Karan Singh’s on 25
November 1949, the day before India’s Constitution was adopted. The proclamation
stated that the provisions of the Indian Constitution would govern the relationship
between the J&K and India. This, the Chief noted, negated two clauses of the
Instrument of Accession (IoA).
 Section 3 of the J&K Constitution explicitly states that “the State of Jammu and
Kashmir is and shall be an integral part of the Union of India.”
 Therefore, the Constitution of India, he said, “became the supreme governing
document of the land.” Further, the Preamble to the J&K Constitution shows a “clear
absence of…a reference to sovereignty.”
 Justice Kaul differed on the question of sovereignty. He held that as per the Court’s
decision in Prem Nath Kaul v Union of India (1959), J&K had retained some part of
its sovereignty. Article 370, he said, recognised J&K’s internal sovereignty by
recognising the Constituent Assembly of the state. Justice Khanna concurred with
Justice Kaul’s reasoning.
Article 370 is a temporary provision
 The Chief relied on the fact that the Constitution framers placed Article 370 with the
temporary and transitional provisions contained in Part XXI.
 Further, the Chief held that the provision was introduced to “deal with the special
circumstances in the State.” At the time of the dissolution of the Constituent
Assembly, these special circumstances persisted, requiring the continuation of Article
370.
Constitutional validity of proclamations under President’s Rule
CJI Chandrachud first clarified that the Court would not deal with the President’s powers to
invoke President’s Rule under Article 356, as the core challenge pertained to “actions taken
during the subsistence of President’s Rule and not independently to President’s Rule by
itself.” He then dealt with the petitioners’ claim that the President cannot use their powers
under Article 356 to “take irrevocable decisions” and “unsettle constitutional safeguards in
favour of States.”
Does Parliament enjoy both law-making and non-law-making powers of the state
legislature under President’s Rule?
CJI D.Y. Chandrachud held that no such distinction exists under Article 356. He noted that
interpreting the phrase “powers of the legislature” to allow Parliament to exercise all
constitutional powers of the Legislative Assembly would limit the power of the state.
“However,” he continued, “the Constitution recognises such reduction of federal power when
the Proclamation under Article 356 is in force.”
Is CO 272 of 2019 valid?
In CO 272, the Union amended Article 367 (an interpretation clause) by replacing the words
“Constituent Assembly” in the proviso to Article 370(3) with “Legislative Assembly.” The
Union had asserted that this method was valid under Article 370(1)(d) which allows for
provisions of the Indian Constitution to apply to J&K, subject to exceptions and
modifications by the President.
CO 273 was not issued with malicious intent
CJI Chandrachud wrote that while deciding if the power under 370(3) must be exercised, the
President has to determine whether “the special circumstances which warranted a special
solution in the form of Article 370 have ceased to exist.” This was a “policy decision which
completely falls within the realm of the executive.” However, the Chief wrote that the
President’s decision was subject to review if his intention was mala fide.
The Chief found that the President’s intention was not mala fide. The reasoning he advanced
was that the Union and the state have integrated “through a collaborative exercise” through a
“slew” of Constitutional Orders since 1950. The President made the whole of the Indian
Constitution applicable to J&K under Article 370(1)(d) to ensure its complete integration into
India.
THE CONSTITUTION OF J&K STANDS INOPERATIVE
The Bench held that the Constitution of J&K was always subordinate to the Constitution of
India. The effect of CO 272 and 273, CJI Chandrachud wrote, was that the whole of the
Constitution of India applied to J&K just as it did to other states and Union Territories.
REORGANISATION OF J&K: PROCEDURALLY VALID, SUBSTANTIVE
QUESTION LEFT OPEN
The J&K Reorganisation Act, 2019, enacted under Article 3 of the Constitution, faced legal
challenges with petitioners arguing its unconstitutionality. The court examined Article 3,
delving into historical context, the need for union territories, and the legislative intent. Chief
Justice Chandrachud emphasized federalism, distinguishing between states and Union
Territories. The court didn't delve into whether J&K lost its "character" due to reorganization,
trusting the Solicitor General's assurance of restoring statehood. On the procedure, the court
found the Union's acceptance of its own views valid, and the suspension of the second
proviso to Article 3 justified under Article 356(1)(c). Statehood restoration for J&K was
directed, with legislative elections by September 2024.
JUSTICE KAUL: SET UP A TRUTH AND RECONCILIATION COMMISSION TO
ADDRESS HUMAN RIGHTS VIOLATIONS IN J&K
Justice Kaul concluded with an emotional plea, suggesting the establishment of a "truth and
reconciliation Commission" by the Union, similar to South Africa's post-apartheid initiative.
He emphasized the urgency, urging a time-bound setup before memories fade, especially for a
generation growing up with deep-seated distrust. While acknowledging the Court's limited
jurisdiction, he argued that transitional justice falls under transformative constitutionalism,
involving both state and non-state actors in addressing human rights violations. Justice Kaul
emphasized the Commission's role in providing a humanized, non-criminal platform for
people to share their experiences openly, drawing on past instances where the Court provided
flexible solutions to fundamental rights violations.