Article 370 judgment explained: Supreme Court says President could have struck down provision unilaterally

A Constitution Bench of the Supreme Court on Monday unanimously upheld the decision of the Central government to abrogate Article 370 of the Constitution..The decision was rendered by a Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant. .The Court held that Article 370 was only intended as a transitory provision and was temporary in character and thus, the President was empowered to abrogate it. The Court further said that Jammu & Kashmir (J&K) ceased to have any internal sovereignty once it acceded to Union of India. Pertinently, the Court refrained from deciding on the validity of the law that bifurcated J&K into two Union Territories. This was in light of the submission made by Solicitor General Tushar Mehta assuring the Court that the statehood of J&K would be restored. .Despite these conclusions, what is most interesting is that one part of the Constitutional Order (CO) issued by the President, which set in motion the process of abrogation, was held to be invalid by the Court.This was CO 272 titled The Constitution (Application to Jammu & Kashmir) Order, 2019.But before going into the same, it would be necessary to understand the two clauses of Article 370..Clause (1)(d) of Article 370.The order issued by the President is under this clause. It reads:“Notwithstanding anything in this Constitution, such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State:Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.”The clause preceding this clause states that Article 1 and 370 apply to Jammu & Kashmir.Read together, this would mean that aside from Articles 1 and 370, all the other Articles in the Constitution will apply to Jammu & Kashmir, subject to the exceptions and modifications made by the President.The same should, however, have consultation or concurrence of the state government – consultation if the subject is in the Instrument of Accession and concurrence if the subject is not in the Instrument of Accession.One of arguments of the petitioners was that such concurrence has to be the concurrence of the elected State government and not of the Union government and the Union Government (acting through the President) could not have given concurrence for issuing a CO 272.In other words, the same could not have been issued when the State was under the President's Rule..Clause 3 of Article 370.Clause 3 reads:“Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”Thus, this clause empowers the President to repeal Article 370 or bring about modifications or specify exceptions to the application of Article 370.However, such a Presidential Order under clause (3) of Article 370 can be issued only upon the recommendation of the Constituent Assembly of Jammu & Kashmir, a body which was dissolved in the 1950s..CO 272.A Presidential Order abrogating or modifying Article 370 could be issued only under Article 370(3), for which the recommendation of the Constituent Assembly of Jammu & Kashmir was required.Since the Constituent Assembly of the State had dissolved without recommending abrogation, Article 370 had stood the test of time since the President was virtually powerless to abrogate this Article without a Constituent Assembly.This meant that Article 370 could have remained in the Constitution forever.Knowing this, CO 272 issued by the President on August 5, 2019 did not per se make any change directly to Article 370.To get over the hurdle of Constituent Assembly's assent, the President through CO 272 amended Article 367 so that references to the "Constituent Assembly" in Article 370(3) were re-interpreted to mean "Legislative Assembly."Article 367 of the Constitution contains nothing but some general rules regarding the interpretation of the Constitution..Since, the State was under the President's Rule, 'Legislative Assembly's consent meant Governor's consent.Importantly, besides making changes to Article 367, CO 272 also made all provisions of the Constitution of India applicable to Jammu & Kashmir..CO 273.Based on the changes made by CO 272 to Article 367 and consequently to Article 370, the President then issued another Constitutional Order on August 6, 2019, namely CO 273, abrogating Article 370.Thus, CO 272 amended Article 370(3) by an indirect route of amending Article 367. CO 273 then abrogated the amended Article 370 by virtue of the power given by the amended clause in Article 370(3). .Indirect amendment to Article 370 by way of CO 272 is not permissible.The Supreme Court struck down that portion of CO 272 by which the President had amended Article 367 and, thereby, effectively amended Article 370. "While the change sought to be made by paragraph 2 of CO 272 may appear to be a ‘modification’ or amendment of Article 367 at first blush, its effect is to amend Article 370 itself. Paragraph 2 couches the amendment to Article 370 in the language of an amendment or modification to Article 367 but its true import is to amend Article 370," the Court said.Explaining further, the Court held,"CO 272 purports to add Clause 4 to Article 367 and stipulates that the expression ‘Constituent Assembly’ in the proviso to Article 370(3) shall be read as ‘Legislative Assembly.’ The proviso to Article 370(3) states that the recommendation of the Constituent Assembly referred to in Clause 2 is necessary. Clause 2 of Article 370 refers to the Constituent Assembly for the purpose of framing the Constitution of the State. Thus, the proviso to Article 370(3) confers the power to make recommendations to that specific Constituent Assembly. CO 272 changes the language to the proviso to Article 370(3) in two ways. First, it changes the recommending body from the Constituent Assembly to the Legislative Assembly; and second, it makes a new arrangement at variance with that specific Constituent Assembly." Both these changes are not insignificant, because they modify the essential character of the proviso by substituting a particular type or kind of body with another type or kind entirely, the Court said.While an interpretation clause can be used to define or give meaning to particular terms, it cannot be deployed to amend a provision by bypassing the specific procedure laid down for its amendment. This would defeat the purpose of having a procedure for making an amendment, the Court held..CO 272 upheld because President has unilateral powers.Besides the challenge based on the indirect route taken by the President, the challenge to CO 272 was based on two other grounds.One, that the Centre could not have done it unilaterally when the State was under President's Rule, and two, that the power under Article 370(1)(d) cannot be used to apply all provisions of the Constitution to Jammu & Kashmir. It is on these grounds that the Court upheld CO 272. The Court held that the President can unilaterally exercise his powers and seek the concurrence of the Union government instead of the State government for applying all provisions of the Constitution to J&K.The consultation and collaboration between the President and the State government was required only where the application of the provisions of the Indian Constitution to the State would require amendments to the State Constitution. "Consultation and collaboration between both the units (President and State government) will only be necessary where the application of the provisions of the Indian Constitution to the State would require amendments to the State Constitution because the purpose of the requirements of consultation and collaboration is for the smooth functioning of governance in the State and to ensure that the provisions of the Constitution of Jammu and Kashmir are not inconsistent with the provisions of the Constitution of India," the Court said.Since the effect of applying all provisions of the Constitution to Jammu & Kashmir through the exercise of power under Article 370(1)(d) is the same as issuing a notification under Article 370(3) (which the President has the power to unilaterally issue), the principles of consultation and collaboration are not required to be followed, the Bench ruled."The exercise of power is mala fide only if power was exercised with an intent to deceive. Deception can only be proved if the power which is otherwise unavailable to the authority or body is exercised or if the power that is available is improperly exercised. Since the concurrence of the State Government was not required for the exercise of power under Article 370(1)(d) to apply all provisions of the Constitution to the State, the President securing the concurrence of the Union of India (on behalf of the State Government) is not mala fide," the judgment stated..The Court also held that the President can apply all provisions of the Constitution of India to J&K, the proviso to Article 370(1)(d) notwithstanding."Non-application of mind cannot be claimed merely because the CO 272 applies all provisions of the Constitution to Jammu and Kashmir in one go," the Court ruled..Why CO 273 was also upheld.This perhaps was the most significant aspect of the top court's ruling.CO 273, which abrogated Article 370, was challenged on the ground that the Constituent Assembly of J&K which could recommend its dissolution, had ceased to exist.In other words, it was argued by the petitioners the President could not have unilaterally issued a CO abrogating Article 370 by amending the proviso to Article 370(3) and replacing the term 'Constituent Assembly' with 'Legislative Assembly'.While the Court held that the procedure adopted to replace 'Constituent Assembly' with 'Legislative Assembly' was invalid, it said that the President could still issue CO 273. This, the Court said, was because Article 370(3) was introduced with the object of Constitutional integration and not disintegration. "Articles 370(1)(d) and 370(3) were introduced with the purpose of enhancing constitutional integration and not disintegration. So, the power under Article 370(1)(d) and Article 370(3) even when exercised to its fullest extent does not freeze the system of integration contemplated by Article 370 but is rather intended to enhance constitutional integration between the Union and the State of Jammu and Kashmir," the judgment said. Holding that the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would lead to the freezing of the process of integration, contrary to the purpose of introducing the provision, the Court said. Further, the Court opined that this was not a case where only Articles 1 and 370 of the Constitution were applied to Jammu & Kashmir and suddenly after seventy years the entire Constitution was being made applicable. 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 in exercise of the power under Article 370(3) is a culmination of the process of integration..Elections should be held in J&K.The Court directed the Election Commission of India to hold elections to the Legislative Assembly of J&K by September 30."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 September 30, 2024. Restoration of statehood shall take place at the earliest and as soon as possible," the Court directed..Ladakh's status as UT upheld.The Court, however, upheld 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 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," the Court noted..Article 370 judgment: Supreme Court refuses to decide validity of bifurcating J&K into two Union Territories.[Read Judgment]