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Supreme Court’s Article 370 verdict


The Supreme Court in a 5-0 unanimous ruling upheld the Centre’s abrogation of Article 370 of the Constitution.


GS II: Polity and Governance

Dimensions of the Article:

  1. Examining Jammu and Kashmir’s Sovereignty: Court Verdict
  2. Assessing the Permanence of Article 370: Court’s Position
  3. Legality of Article 370 Abrogation: Examining the Legal Process
  4. President’s Rule and Executive Actions: Legal Scrutiny

Examining Jammu and Kashmir’s Sovereignty: Court Verdict

The court assessed the argument that Jammu and Kashmir (J&K) retained an element of sovereignty distinct from other princely states during its integration into the Indian Union in 1947.

Constitutional Set-up Analysis:

  • Article 1 of the Indian Constitution designates India as a Union of States, with J&K listed as a Part III state in the First Schedule.
  • Section 3 of the J&K Constitution explicitly declares J&K as an integral part of India, with a prohibition on amendments to this provision.

Continuous Exercise of Power under Article 370:

  • The court emphasized that the ongoing exercise of power under Article 370(1) by the President indicated a gradual constitutional integration process.
  • The President’s declaration under Article 370(3) marked the culmination of this integration process.

Effect of Yuvraj Karan Singh’s Proclamation:

  • The court rejected the argument that a merger agreement was necessary for J&K to surrender sovereignty, citing Yuvraj Karan Singh’s Proclamation adopting the Indian Constitution in 1949.
  • The Proclamation superseded and abrogated inconsistent constitutional provisions, achieving the same outcome as an agreement of merger.

Justice S K Kaul’s Perspective:

  • Justice Kaul, in his concurring opinion, acknowledged J&K’s internal sovereignty despite the Instrument of Accession.
  • Article 370’s recognition of the Constituent Assembly of the State reflected this internal sovereignty, but this viewpoint did not impact the final conclusions.

Assessing the Permanence of Article 370: Court’s Position

Various arguments were presented to the Court regarding the permanence or transience of Article 370, a provision integral to Jammu and Kashmir’s constitutional status.

Petitioners’ Assertion:

  • Petitioners contended that Article 370, forming part of the Constitution’s basic structure, had acquired permanence and couldn’t be abrogated.

Kapil Sibal’s Argument:

  • Senior advocate Kapil Sibal argued that since 370(3) required the Constituent Assembly’s recommendation (no longer in existence), abrogation became impractical.

Court’s Perspective:

  • Both the Chief Justice (CJI) and Justice Kaul concurred that Article 370 was inherently temporary.
  • Justice Kaul reasoned that its temporary nature persisted even after the State Constituent Assembly dissolution.

Temporary Nature Indicators:

  • CJI highlighted two aspects showcasing Article 370’s temporariness:
    • It served as an interim measure until the State Constituent Assembly formation, unnecessary post J&K Constitution’s adoption.
    • Enacted due to the state’s wartime circumstances, it addressed specific, transient needs.

Legality of Article 370 Abrogation: Examining the Legal Process

The abrogation of Article 370 followed a legal process involving constitutional amendments and presidential orders. The legality was dissected, with differing perspectives from Justice Kaul and Chief Justice (CJI) Chandrachud.

Amendment to Article 367:

  • On August 5, 2019, President Ram Nath Kovind issued CO 272 amending Article 367, introducing a new interpretation for “Constituent Assembly of Jammu and Kashmir” as the “legislative assembly of Jammu and Kashmir.”

Parliament’s Consent via CO 273:

  • CO 273 sought Parliament’s consent (acting as the J&K legislature) to recommend the cessation of all clauses of Article 370.

Justice Kaul’s View:

  • Justice Kaul upheld this process, endorsing the constitutional amendments and parliamentary consent.

CJI Chandrachud’s Opinion:

  • CJI Chandrachud, while acknowledging the abrogation’s validity, deemed the alteration of the Constituent Assembly’s meaning unnecessary.
  • He asserted that after the Constituent Assembly’s dissolution, the President could unilaterally abrogate Article 370.

Continued Power under Article 370(3):

  • The ruling clarified that the power under Article 370(3) persisted post the Constituent Assembly’s dissolution.
  • While the transitional power ceased, the President’s authority under Article 370(3) remained intact.

President’s Rule and Executive Actions: Legal Scrutiny

The legal challenge revolved around the actions taken during President’s rule in Jammu and Kashmir, with petitioners contending that irrevocable steps were taken without the state’s consent. The examination of the extent of powers under Article 356 was crucial.

Petitioner’s Argument:

  • The petitioners asserted that irrevocable actions were executed without the state’s consent during President’s rule, raising questions about the permissible exercise of powers under Article 356.

Bommai Ruling Reference:

  • Both Chief Justice (CJI) and Justice Kaul referred to the 1994 S R Bommai v Union of India ruling, a binding precedent by a nine-judge Bench.
  • The Bommai ruling outlined parameters for the proclamation of President’s rule.

Validity Standard:

  • The court emphasized that the President’s action must meet the standard of not being “mala fide or palpably irrational.”
  • It required consideration of whether the advisability and necessity of the action were duly considered by the President.

Burden of Proof:

  • The ruling stated that both the petitioner and the Union government must demonstrate mala fides to the court.
  • The argument that irrevocable actions inherently imply mala fides was rejected.

-Source: Indian Express

February 2024