While upholding the repeal of the special status of Jammu and Kashmir under Article 370 of the Constitution, the Supreme Court also affirmed the power of the Parliament to carve out a Union Territory from a State.
Holding so, a Constitution Bench led by Chief Justice of India DY Chandrachud upheld the Jammu and Kashmir Reorganisation Act 2019 to the extent it created the Union Territory of Ladakh out of the erstwhile State of J&K. However, the Court did not go into the issue whether the conversion of State of J&K into a Union Territory was valid. This was in view of the undertaking given by the Union Government that the statehood of J&K(without Ladakh) will be restored at the earliest.
"The question of whether Parliament can extinguish the character of statehood by converting a State into one or more Union Territories in exercise of power under Article 3 is left open. In an appropriate case, this Court must construe the scope of powers under Article 3 in light of the necessary effect of converting a State to Union Territories which is that autonomy would be diminished, the historical context for the creation of federating units, and its impact on the principles of federalism and representative democracy," the lead judgment authored by CJI Chandrachud held.
UT can be carved out of a State
The bench referred to Article 3(a) of the Constitution as per which, the Parliament may by law "form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State". According to Explanation 1 to Article 3, the word "State", as used in Article 3(a), includes a Union territory. Hence, the Court held that a UT can be carved out of a State.
"...we uphold the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State," the Court held.
The Court further held that the views of the concerned State regarding the proposed reorganisation, expressed as per proviso to Article 3, are not binding on the Parliament.
"..the views of the Legislature of the State are not binding on Parliament in terms of the first proviso to Article 3. The views of the Legislature of the State under the first proviso to Article 3 are recommendatory to begin with," the Court held. The precedent laid down by a 5-judge bench in Babulal Parate v. State of Bombay (1959) was followed in this regard. Therefore, the Court held that the Parliament passing the reorganisation Act when the State Assembly was dissolved and the State was placed under Presidential rule was not a mala fide exercise, since the views of the State legislature are not binding in any case.
Justice Khanna sounds a word of caution
Justice Sanjiv Khanna, in his concurring judgment, sounded a word of caution regarding the conversion of a State into a UT.
"Conversion of a State into Union Territory has grave consequences, amongst others, it denies the citizens of the State an elected state government and impinges on federalism.Conversion/creation of a Union Territory from a State has to be justified by giving very strong and cogent grounds.It must be in strict compliance with Article 3 of the Constitution of India."
It may be noted that earlier this year, while upholding the delimitation exercise in J&K, a two-judge bench of the Supreme Court in Haji Adbul Gani Khan And Anr. v. Union of India And Ors had observed that the Parliament has the power to convert an existing State into a UT.
Other reports about the judgment can be read here.
Case Title : In Re Article 370 of the Constitution of India
Citation : 2023 LiveLaw (SC) 1050
Justice Kaul Recommends "
Justice Kaul Recommends "Truth & Reconciliation Commission" To Report Human Rights Violations In Jammu & Kashmir By State & Non-State Actors
Padmakshi Sharma
Supreme Court judge Justice Sanjay Kishan Kaul, in his judgment approving the repeal of the special status of Jammu and Kashmir under Article 370 of the Constitution, recommended the setting up of a "Truth and Reconciliation Commission" to investigate and report on the human rights violations carried out by both the State and non-State actors in the Kashmir valley at least since 1980s.
In the epilogue to his judgment, Justice Kaul said that the valley of Kashmir carried a "historical burden" and the people residing there have been victims of conflicts lasting for several decades.
He referred particularly to the to the problems created by insurgency in the valley in 1980s which culminated in the migration of "one part of the population" - Kashmiri Pandits- to other parts. Since the situation threatened the sovereignty and integrity of India, the Army had to be called in.
"Army is meant to fight battles with enemies of the State and not really to control the law and order situation within the State. But then, these were peculiar times. The entry of the Army created its own ground realities and in their endeavour to preserve the integrity of the State and the nation against foreign incursions, the men, women and the children of the State paid a heavy price," Justice Kaul said.
He said that during his travels to the region, he could notice traces of "inter generational trauma" in the already fractured society.
In order to move forward, the wounds need healing, he said while adding that what is important is not just the prevention of recurrence of injustice, but the restoration of the region's social fabric. He said that the region was noted for its communal harmony, which was not impaired even during the times of partition, which prompted Mahatma Gandhi to say "Kashmir was a ray of hope for the humanity.".
Justice Kaul said that the first step to heal the wounds and to restore the social fabric was to "achieve a collective understanding of the human rights violations perpetuated both by the State and non-State Actors against the people of the region."
Though there are numerous reports of violations, a commonly accepted narrative of what has happened or a "collective telling of the truth" is lacking. Observing that truth telling paves the way for reconciliation, Justice Kaul said :
"I recommend the setting up of an impartial Truth and Reconciliation Commission. The Commission will investigate and report on the violations of human rights both by the State and non-state actors perpetrated in Jammu and Kashmir at least since 1980s and recommend measures for reconciliation."
In this regard, he took a leaf from the Truth and Reconciliation Commissions set up in South Africa in regard to atrocities committed during the Apartheid era.
"The Commission must be set up before memory escapes. The exercise must be time-bound", he stated while adding that there was an entire generation of youth that had grown up with a feeling of distrust and it was to them that reparation was owed.
He further stated–
"Truth and Reconciliation Commission could facilitate a reparative approach, that enables forgiveness for the wounds of the past and forms the basis of achieving a shared national identity."
Justice Kaul cautioned that the Commission must not turn into a criminal court and must focus on humanised and personalised process enabling people to share what they have been through uninhibitedly. It should be based on dialogue, allowing for different view points and inputs from all sides.
While concluding, Justice Kaul expressed a hope that the return of the Kashmiri migrants will be facilitated.
"I hope that much will be achieved when Kashmiris open their hearts to embracing the past and facilitate the people who were compelled to migrate to come back with dignity".
Other reports about the judgment can be read here.
Case Title : In Re Article 370 of the Constitution of India
Citation : 2023 LiveLaw (SC) 1050
Restore Statehood Of Jammu & Kashmir Soon, Hold Elections To J&K Assembly By September 2024 : Supreme Court
Padmakshi Sharma
The Supreme Court today (11.12.2023) directed the Union Government to expedite the process of restoration of statehood for Jammu and Kashmir (without the Union Territory of Ladakh). The Constitution Bench led by Chief Justice of India DY Chandrachud and composed of Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, 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 that Article 370 was a temporary provision.
The validity of the J&K Reorganisation Act 2019, which bifurcated the State of J&K into Union Territories of J&K and Ladakh, was one of the issues before the Court. However, the Court did not rule on this issue in view of the submission of the Solicitor General of India that the statehood of J&K will be restored as soon as possible. However, the Court upheld the creation of Ladakh UT as valid, holding that Article 3 of the Constitution gave the power to the Parliament to carve out a Union Territory from a State.
The issue whether an entire State could be turned into a Union Territory as per Article 3 was left open.
The court also directed that steps shall be taken by the Election Commission of India to conduct elections to the J&K assembly by September 30, 2024. Further, it stated that the restoration of statehood shall take place as soon as possible.
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. Restoration of statehood shall take place at the earliest and as soon as possible," stated the judgment of CJI DY Chandrachud.
Other reports on the judgment can be read here.
Case Title : In Re Article 370 of the Constitution of India
Citation : 2023 LiveLaw (SC) 1050
Article 370 A Temporary Provision : Supreme Court Upholds Abrogation of Special Status of Jammu and Kashmir
Padmakshi Sharma
himself and for Justices Gavai and Surya Kant. The second was a concurring opinion authored by Justice SK Kaul. Justice Sanjiv Khanna concurred with both the judgements.
In his judgement, Justice SK Kaul recommended the setting up of an impartial "Truth and Reconciliation Committee" to investigate and report on the violations of human rights both by the State and non-state actors at least since 1980s and recommend measures for reconciliation. He added that the exercise of the committee shall be carried out in a time bound manner. However, considering the sensitivities of the matter, he held that it was for the government to decide the manner in which the Truth and Reconciliation Commission must be set up.
Issues Framed By The Court
1. Whether provisions of Article 370 were temporary in nature or whether they acquired status of permanence?
2. Whether amendment to Article 367 through exercise of power under Article 370(1)(d) so as to substitute the reference to 'constituent assembly' by 'legislative assembly' constitutionally valid?
3. Whether entire Constitution of India could have been applied to J&K under Article 370(1(d))?
4. Whether abrogation of Article 370 by President invalid for lack of recommendation of J&K Constituent Assembly as mandated by proviso to clause (3)?
5. Whether the proclamation of the Governor dissolving the legislative assembly of the state constitutionally valid?
6. Whether Proclamation of Presidential rule imposed in December 2018 and subsequent extensions valid?
7. Whether the J&K Reorganisation Act 2019 bifurcating the State into two Union Territories constitutionally valid?
8. Whether during the tenure of proclamation under Article 356 and when the legislative assembly of the State is dissolved, the status of J&K an its conversion into UT valid exercise of power?
Conclusions Reached By Court
1. Court Need Not Adjudicate On Validity Of President's Rule
The court held that it need not adjudicate on the validity of the presidential proclamations announcing 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.
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. Article 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.
4. Article 370 Is A Temporary Provision
The CJI, in his judgement 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 judgement, 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.
5. Concurrence of State Government Not Required To Apply All Provisions Of 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 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 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 judgement, stated – "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."
6. CO 272 To The Extent Of Modifying Article 367 Is Ultra Vires Article 370.
The majority judgement 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 judgement, 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 J&K Constituent Assembly was not required for the President to declare Article 370 as inoperative.
7. Validity of J&K Reorganisation Act 2019 Not Necessary To Be Adjudicated Upon, Reorganisation Of Ladakh Valid
The court noted that the SG had submitted that statehood of J&K would be restored and the status of UT was temporary for J&K. In view of the submission made by the SG, the court stated that it did find it necessary to determine whether the reorginazation of J&K into UT was valid. The reorganisation of Ladakh as Union Territory was upheld as Article 3 allowed a portion of State to be made as UT. The question whether Parliament can convert a State into a Union Territory was left open.
8. Statehood Of J&K To Be Restored At 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 provision post the dissolution of the J&K Constituent Assembly in 1957. The petitioners further contended that the Indian parliament, under the current constitutional framework, could not convert itself into a Constituent Assembly. They also stressed upon the misuse of Article 356, which imposes President's Rule in a State. It was emphasised that the purpose of Article 356 was to restore state machinery and not destroy it but the President's Rule in J&K was imposed to destroy the state legislature. It was added that President's Rule under Article 356 was in its nature "temporary" and thus permanent actions could not be taken under it. The petitioners also argued that the amendment of Article 370 through Article 367 was invalid. Finally, it was stated that while Article 3 of the Indian Constitution granted the power to Union to alter the boundaries of states and even create smaller states through bifurcation, it had never before been used to convert an entire state into a Union Territory (UT). The negative impact of turning J&K into a UT on the constitutional structure was also underlined. A detailed summary on petitioners arguments can be found here.
Appearances
For the petitioners- Senior Advocates Kapil Sibal, Gopal Subramanium, Zaffar Shah, Rajeev Dhavan, Dushyant Dave, Chander Uday Singh, Dinesh Dwivedi, Shekhar Naphade, Nitya Ramakrishnan, Gopal Sankaranarayanan, Menaka Guruswamy, Prashanto Chandra Sen, Sanjay Parikh and Advocate Warisha Farasat argued.
For the Union of India : Attorney General for India R Venkataramani, Solicitor General of India Tushar Mehta, Additional Solicitor General KM Nataraj, ASG Vikramjeet Banerjee and Advocate Kanu Agarwal.
For the intervenors backing the Union - Senior Advocates Harish Salve, Rakesh Dwivedi, V Giri, Guru Krishnakumar; Advocates Archana Pathak Dave, VK Biju and Charu Mathur.
Other reports on the judgment can be read here.
Case Title : In Re Article 370 of the Constitution of India
Citation : 2023 LiveLaw (SC) 1050
Supreme Court Upholds Abrogation Of Article 370: Live Updates From Judgment Pronouncement
LIVELAW NEWS NETWORK
11 Dec 2023 8:15 AM
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