Supreme Court Upholds Abolition of J&K’s Special Status Under Article 370,

December 11, 2023

Calls for Swift Statehood Restoration, and Directs Elections by September 2024; Affirms Ladakh’s Union Territory Status

Srinagar, Dec 11: The Supreme Court on Monday upheld the Union Government’s August 5, 2019 decision to abrogate Article 370, which bestowed special status to the erstwhile state of Jammu & Kashmir. The court also directed that restoration of statehood “shall take place at the earliest and as soon as possible” and elections to J&K Assembly be held before September 30, 2024.

In the landmark judgement, the top court upheld the validity of two constitutional orders issued by the President of India on August 5 and 6 in 2019, saying the exercise of powers by him is not malafide.

“The exercise of power by the President under Article 370(1)(d) to issue CO 272 is not malafide. The President in exercise of power under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist. 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 court said, as per news agency—Kashmir News Observer (KNO).

The court said that 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 court said.

The Court held that Article 370 is a temporary provision. “It can be garnered from the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution that it is a temporary provision,” the Chief Justice of India DY Chandrachud said while writing judgments for himself and Justice BR Gavai and Justice Suraya Kant.

The court held that the state of Jammu & Kashmir doesn’t have internal autonomy.

“The State of Jammu and Kashmir does not retain any element of sovereignty after the execution of the Instrument of Accession and the issuance of the Proclamation dated 25 November 1949 by which the Constitution of India was adopted. The State of Jammu and Kashmir does not have ‘internal sovereignty’ which is distinguishable from the powers and privileges enjoyed by other States in the country,” it said.

The court said that Article 370 was a feature of asymmetric federalism and not sovereignty.

The court held that the Constitution of Jammu & Kashmir has become inoperative following the application of the Constitution of India to J&K in its entirety.

“The Constitution of India is a complete code for constitutional governance. Following the application of the Constitution of India in its entirety to the State of Jammu and Kashmir by CO 273, the Constitution of the State of Jammu and Kashmir is inoperative and is declared to have become redundant,” the court said.

The court, however, did not touch on the validity of reorganization of J&K into two Union Territories, but directed that “restoration of statehood shall take place at the earliest and as soon as possible”.

“The Solicitor General (for the Union of India) submitted that statehood will be restored to Jammu and Kashmir and that its status as a Union territory is temporary. The Solicitor General submitted that the status of the Union Territory of Ladakh will not be affected by the restoration of statehood to Jammu and Kashmir. In view of the submission made by the Solicitor General that statehood would be restored of Jammu and Kashmir, we do not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3. The status of Ladakh as a Union Territory is upheld because Article 3(a) read with Explanation I permits forming a Union Territory by separation of a territory from any State,” the court said.’

The court directed that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir by September 30, 2024.

“This Court is alive to the security concerns in the territory. Direct elections to the Legislative Assemblies which is one of the paramount features of representative democracy in India cannot be put on hold until statehood is restored. 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 said—(KNO)

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