Supreme Court Constitution Bench unanimously upheld the Centre’s August 5, 2019 move to revoke the special status granted to the erstwhile state of Jammu and Kashmir (J&K) with directions to the Centre to restore statehood and conduct elections.
The Supreme Court observed that Article 370 was meant to be a temporary provision and the erstwhile state cannot have any claim to internal sovereignty. The top court ruled that the former state of J&K did not retain any element of sovereignty or internal sovereignty different from any other state once it acceded to the Union of India post-independence.
Chief Justice of India DY Chandrachud, reading one of the three judgments on this issue, said Article 370 was introduced as an interim arrangement due to war conditions in the State. A textual reading also indicates that it is a temporary provision and a marginal note says it is temporary and transitory, he said reading his opinion.
The top court said it did not find it necessary to determine the validity of the Centre's decision to bifurcate the erstwhile state in two union territories – Jammu and Kashmir and Ladakh – after noting the Solicitor General’s (Tushar Mehta) submission that statehood would be restored, and the UT status is temporary.
In partial relief, the Supreme Court further directed the Centre to restore statehood and conduct legislative assembly elections by September 30, 2024. “Democracy in India cannot be put on hold, CJI Chandrachud said while directing the Election Commission of India to conduct polls.
The apex court said it cannot rule on the validity of the Presidential rule imposed in J&K since December 2018 as it was not challenged. Every decision taken by the Centre on the State's behalf during Presidential rule cannot be open to challenge as it would result in chaos, the bench added.
CJI Chandrachud said the petitioners' argument that the Centre cannot take actions of irreversible consequences in the State during Presidential rule is not accepted.
In a separate but concurring opinion, Justice Sanjay Kishan Kaul said, "in light of the Valley's call for a truth and reconciliation committee, I recommend the creation of an impartial Truth and Reconciliation Commission who will investigate human rights violations by both state and non-state actors perpetrated in Jammu and Kashmir."
Recap of the case
After a marathon hearing spread over 16 days, the Supreme Court Constitution Bench on September 5 reserved its verdict on a batch of pleas that challenged the validity of the government’s August 5, 2019 move.
The five-judge Constitution bench comprised the Chief Justice of India (CJI) DY Chandrachud, with Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.
The top court heard more than 20 petitioners on the issue of Article 370 focusing on four key points: validity of Article 370 itself, including the proviso to Article 370(3) – President’s right to revoke special status after a recommendation from the State’s constituent assembly; President’s power to amend the status of a state; the Jammu and Kashmir Reorganisation Act, 2019; and the presidential rule under Article 356.
Senior Advocates Kapil Sibal, Gopal Subramanium, Zaffar Shah, Rajeev Dhavan, Dushyant Dave, CU Singh, Dinesh Dwivedi, Shekhar Naphade, Nitya Ramakrishnan, Gopal Sankaranarayanan, Menaka Guruswamy, Prashanto Chandra Sen, Sanjay Parikh and advocate Warisha Farasat argued for 20 petitioners and intervenors. Attorney General (AG) for India R Venkataramani, Solicitor General (SG) Tushar Mehta, Additional Solicitor Generals (ASG) KM Nataraj, Vikramjeet Banerjee and advocate Kanu Agarwal argued for the Centre.