Supreme Court upholds Centre’s decision to abrogate Article 370

On 11th December, the Supreme Court of India upheld the Centre’s decision to abrogate Article 370. The National Democratic Alliance (NDA)-led government at the Centre under the leadership of Prime Minister Narendra Modi revoked Article 370, taking away the special status of the state of Jammu and Kashmir on 5th August 2019. The state was then reorganised into two Union Territories, Ladakh and Jammu and Kashmir.

Chief Justice of India, Justice DY Chandrachud, Justice Gavai and Justice Surya Kant gave a joint judgment, while Justice Khanna and Justice Kaul authored separate judgments.

In his judgment, CJI Chandrachud held that Jammu and Kashmir does not hold any internal sovereignty after accession to the Union of India.

Furthermore, CJI said that Article 370 was a temporary provision, and it was introduced to serve a transitional purpose to serve an interim process. It was introduced due to the war conditions in the state. CJI added that the textual reading showed it was a temporary provision, and thus it was placed in part 21 of the constitution.

CJI added that the effect on Presidential Power to issue a notification abrogating Article 370 subsisted. “A ruler of each Indian state had to issue a proclamation adopting the Constitution of India,” the court added.

Furthermore, CJI also held that all provisions of the Constitution of India can be applied to Jammu and Kashmir.

In conclusion, the court stated as follows.

  • J&K does not retain any sovereignty after the instrument of accession was signed.
  • No internal sovereignty for Jammu and Kashmir
  • The challenge to the proclamation of the presidential rule is not valid.
  • The exercise of the president’s power must have a reasonable nexus with the object of presidential rule.
  • The power of parliament to legislate for the state cannot exclude law-making power.
  • Article 370 was a temporary provision.
  • When the constituent assembly was dissolved, only the transitory power of the assembly ceased to exist, and there was no restriction on presidential order.
  • Paragraph 2 of co 272, by which article 370 was amended by amending article 367, was ultra vires as the interpretation clause cannot be used for amendment.
  • The President’s use of power was not mala fide, and no concurrence was needed with the state.
  • Para 2 of co 272 in the exercise of power under 370(1)(d) applying all provisions of the Indian constitution to Jammu and Kashmir was valid.
  • The president’s continuous exercise of power shows the gradual integration process was ongoing. Thus, co 273 is valid.
  • The constitution of Jammu and Kashmir is operative and has been declared redundant.
  • Presidential use of power, not mala fide
  • SG made a statement that statehood will be restored to Jammu and Kashmir. We uphold the decision to carve out UT of Ladakh. We direct ECI to hold polls under section 14 of the reorganisation act and statehood at the earliest.

Source : OpIndia

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