Prof Dr K L Bhatia
December 11, 2023 will be remembered historic day in the independence history of India and will be written in golden words in the modern history of Indian Judiciary since the Apex Court erased the black chapters of 19th October 1949 when Article 370 (306A) was got inserted in the Constitution of India under process and corrected the wrongs of 15th May 1954 when Article 35A was added ostensibly as a rarest example of invisible hands of invisible State in the Constitution by an Executive Order by overreaching the Constituent powers of the Parliament of India. The Apex Court expounded new constitutionalism by correcting the wrongs of over seventy years of past tense by abrogating Articles 370, CO 1954 and subsequent Cos evaporating their soup and sauce and as such streamlined the process of One Nation, One Constitution, One National Flag, One Nationality, One Citizenship, One Domicile in the nationalistic fervor thus strengthening the indestructible union of Indian Federalism — a unique concept in the family of constitutionalism.
The constitutional pilgrimage highlights the emergence of New Avtar of Constitutionalism in Jammu Kashmir and Ladakh after 5-6th August 2019 Parliamentary action and duly approved by Judicial action In Re: Article 370 OF THE CONSTITUTION on 11th December 2023 — consisting of 476 pages — and presents a paradigm shift from past tense, imperfect and indefinite state of affairs to present pleasant and future definite of One Nation, One Constitution, One National Flag, One Nationality, One Citizenship and One Domicile. The soup and sauce of temporary and transitory of abrogated as well as deoperationalised Article370 and special rights and privileges of PRC vide invisible hands of invisible state action Article 35A had been evaporated and lost their utility and relevance. As such, new constitutional culture provides a road map for building national unity and integration to strengthening the federal structure of the textual Constitution of India having the genesis of mutually friendly reciprocal interdependence on each other and not independent from each other. Thus, post August 2019, in an ocean within a tear, has ushered in an era of progressive movement towards peace and development both from national and international perspectives beyond conundrum and consternation.
In abrogating Articles 370, 35A, CO 1954 including subsequent Cos, repeal of Jammu Kashmir Constitution and Reorganisation of Jammu Kashmir State in two Union Territories due process of law has been followed. When there seems no aberration or deviation or eccentricity from due process of law then ‘aberration HANGAMA KIYUN BARPA HAi’! There ought not to be made scarecrow.
It is my firm belief that those who have had been habitual of living in the confines of fiefdom ‘dynasty in democracy’ will soon be realizing to come out of its hibernation as well as cobweb and learn to live under the rule/annals of constitutional democracy to enjoying the true fruits of Kashmiriyyat, Jamhuriyyat and Insaniyyat. Kashmirayyat is the epitome of mutual trust and faith based on communal harmony devoid of communal disharmony. Communal harmony is nonetheless fraternity, that is, common brotherhood — Vasudeva Kutumbkam. This is the Rule of Law that serves the Rule of Life. Jamhuriyyat is akin to democracy within the tenets of constitutional democracy, constitutional culture, constitutional ethics, constitutional ethos, and anything short of that is unconstitutional. Insaniyyat falls within the canons of to be humane and live within the precincts of humanity. Right to be humane is in the roots of right to live and duty to let live in peace and harmony. This, in my perceptions, seems to be the genesis of the decision of the Apex Court of India of 11th December, 2023 expounded in 476 pages.
The Verdict of the Apex Court is a Mosaic to achieving the Ends of Unity and Integrity of the Indian Nation inasmuch as the inputs of Justices D. Y. Chandrachud, Sanjay Kishan Koul, Sanjiv Khana, Bhushan R. Gavai and Surya Kant to the judgment “have led to a synthesis of thought resulting in a unanimous outcome”.
In the background, the Court was to examine the constitutional conviviality of Article 370 of the Constitution of India that handed down the arrangements for the governance of the State of Jammu Kashmir. The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b). These orders have the effect of applying the entire Constitution of India to the State of Jammu Kashmir and abrogating Article 370. Contemporaneously, Parliament enacted the Jammu Kashmir Reorganisation Act 2019, which bifurcated the State into two Union Territories.
In the backdrop of the above, the reference before the Constitution Bench raised the following questions for determination, viz.,
a. Whether the provisions of Article 370 were temporary in nature or whether they acquired a status of permanence in the Constitution;
b. Whether the amendments to Article 367 in exercise of the power under Article 370(1)(d) so as to substitute the reference to the Constituent Assembly of the State referred to in clause (3) of Article 370 by the words ‘Legislative Assembly of the State’ is constitutionally valid;
c. Whether the entire Constitution of India could have been to the State if Jammu Kashmir in exercise of the power under Article 370(d);
d. Whether the abrogation of Article by the President in exercise of the power under Article 370(3) is constitutionally invalid in the absence of a recommendation of the Constituent Assembly of the State of Jammu Kashmir as amended by the proviso to clause (3);
e. Whether the proclamation of the Governor dated 20 June 2018 in exercise of power conferred by Section 92 of the Constitution of Jammu Kashmir and rge subsequent exercise of power on 21 November 2018, under Sectiob 53(2) of the Constitution of Jammu Kashmir to dissolve the Legislative Assembly are constitutionally valid ;
f. Whether the proclamation which was issued by the President under Article 356 of the Constitution on 19th December, 2018 and the subsequent extension are constitutionally valid;
g. Whether the Jammu Kashmir Reorganizations Act 2019 by which the State of Jammu Kashmir was bifurcated into two Union Territories (Union Territory Jammu Kashmir and Union Territory of Ladakh is constitutionally valid bearing in mind Article 3 of the Constitution;
h. Whether during the tenure of a Proclamation under Article 356, and when the Legislative Assembly of the State is either dissolved or is in suspended animation the status of the State of Jammu Kashmir as a State under Article 3(A) of the Constitution and its conversion into a Union Territory under Article 1(3)(b) constitutes a valid exercise of power.
In view of the Apex Court’s constitutionalism activism through cannons that protect structural constitutional values as founder framers of the Constitution anticipated and strengthened by 7:6 majority of the Supreme Court in 1973 in Kesavananda Bharathi v. State of Kerala, the Court unanimously opined as follows having an obligation to conduct their exegesis which fosters the constitutional democratic process.
1. The State of Jammu Kashmir does not retain any element of sovereignty after the execution of the Instrument of Accession and the issuance of the Proclamation dated 25 November 1949 by the Constitution of India was adopted. The State of Jammu Kashmir does not have internal sovereignty which is distinguishable from the powers and privileges enjoyed by other States in the country. Article 370 was a feature of asymmetric federalism and not sovereignty.
2. The challenge to the Proclamation does not merit adjudication because the principal challenge is to the actions which were taken after the proclamation was issued.
3. The exercise of power by the President after the Proclamation under Article 356 is issued is subject to judicial review. The exercise of power by the President must have a reasonable nexus with the object of the Proclamation. The person challenging the exercise of power must prima facie establish that it is a mala fide or extraneous exercise of power. Once a prima facie case is made, the onus shifts to the Union to justify the exercise of such power.
4. The power of Parliament under Article 356(1)(b) to exercise the powers of the Legislature of the State cannot be restricted to law-making power thereby excluding non-law making power of the Legislature of the State. Such an interpretation would amount to reading in a limitation into the provision contrary to the text of the Article.
5. It cannot be garnered from the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution that it is a temporary provision.
6. The power under Article 370(3) did not cease to exist upon the dissolution of the Constituent Assembly of Jammu Kashmir. When the Constituent Assembly was dissolved, only the transitional power recognized in the proviso to Article 370(3), which empowered the Constituent Assembly to make its recommendations ceased to exist. It did not affect the power held by the President under Article 370(3).
7. The exercise of power by the President under Article 370(1)(d) to issue CO 272 is not mala fide. The President in exercise of power under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist. The President did not have to secure the concurrence of the Government of the State or Union Government acting on behalf of the State Government under the second proviso to Article 370(1)(d) while applying all the provisions of the Constitution to Jammu Kashmir because such an exercise of power has the same effect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the State Government was not required.
8. Paragraph 2 of CO 272 issued by the President in exercise of power under Article 370(1)(d) applying all the provisions of the Constitution of India to the State of Jammu Kashmir is valid. Such an exercise of power is not mala fide merely because all the provisions were applied together without following a piece-meal approach.
9. The declaration issued by the President under Article 370(3) is a culmination of the process of integration and as such is a valid exercise of power. Thus, CO 273 is valid.
10. The Constitution of India is a complete code for the constitutional governance following the application of the Constitution of India in its entirety to the State of Jammu Kashmir by CO 273, the Constitution of the State of Jammu Kashmir is inoperative and is declared to have become redundant.
11. Parliament’s exercise of power under the proviso to Article 3 under the Proclamation was valid and not mala fide.
12. We do not find it necessary to determine whether the reorganization of the State of Jammu Kashmir into two Union Territories of Ladakh and Jammu Kashmir is permissible under Article 3. We uphold the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation 1 which permits forming a Union Territory by separation of a territory from any State.
13. In the conclusion, the Court directed that steps be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu 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.
It, thus, discerns that Articles 370, 35A and Jammu Kashmir Constitution are things of the past and any debate on the dead issues is oblivion. The Supreme Court’s decision unequivocally unfolds that why it is supreme. The Apex Court’s interpretation of Articles 370, 35A is not in the language of legalese-imperative positivist approach, but in the creative, pragmatic, realistic, relativist, social engineering and integrationist perspective having compatibility with the constitutional structure strengthening basic structure having rational nexus with the object of the constitutional law sought to be achieved.
(The author is former Head and Dean Faculty of Law; Founder Director The Law School, University of Jammu; Professor of Eminence Law, NLU Jodhpur)
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