"Article 370 was a temporary provision and the means was to derecognize internal sovereignty," opined Justice Sameer Kaul
"Purpose of the constituent assembly was to bring the state at par with other states in India and help in gradual integration. Thus constitutionality in 370(3) for concurrence with state cannot make the larger purpose of article as redundant. When constituent assembly cease to exist only its recommendatory powers cease to exists.
Using the amendment of Article 367 as a backdoor was incorrect. Article 356 can be imposed ... and it does not bar the union or president to exercise non legislative functions on the state legislature."
"not possible to ascertain the views of state legislature... since state assembly was not in session
Reads his epilogue: it is a bit sentimental as well: insurgencies led to the migration of one part of the population and the situation was such that army had to be called and nation faced dangers. People of the state has paid a heavy price and inter generational trauma the people have gone through, the state needs healing...
Justice Kaul also spoke of the feeling of distrust that an entire generation of youth in the Valley has grown up with, and said, “There is already an entire generation of youth that has grown up with a feeling of distrust, and it is to them that we owe the greatest of reparations.”
Concluding his portion by adding that the commission is only one of the many avenues on the road to systemic reforms, Kaul said, “It is my sincere hope that much will be achieved when Kashmir opens up its heart to embracing the past and facilitating the people who were compelled to migrate to come back with dignity.”
“It was not a voluntary migration. The situation became so aggregated that the very integrity and sovereignty of our country were endangered, and the army had to be called in,” he said, adding that armies are meant to fight battles against enemies instead of controlling law and order in the state.
“We, the people of Jammu and Kashmir, are at the heart of the debate,” Justice Kaul said.
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| Modi calls the verdict a "beacon of hope" |
In a major win for Modi Govt, Supreme Court approves abrogation of Article 370
The Supreme Court's five-judge Constitution Bench in their historic verdict on Monday, Dec 11, 2023, said the President's 2019 order to scrap Jammu and Kashmir's special status was valid.
The Supreme Court said a five-judge Constitution Bench headed by Chief Justice DY Chandrachud had a unanimous verdict on a batch of pleas challenging the abrogation of Article 370.
"...we do not find it necessary to determine whether the Jammu and Kashmir Reorganisation Act 2019 was invalid.
This court is alive to security concerns.,.WE DIRECT THAT STEPS SHALL BE TAKEN SO THAT ELECTIONS ARE HELD IN LEGISLATIVE ASSEMBLY OF J&K BY SEPTEMBER 2024 AND STATEHOOD SHALL BE RESTORED AS SOON AS POSSIBLE," CJI D Y Chandrachud ruled.
Highlights:
👉 Justice Kaul recommends that a Truth and Reconciliatory Commission be set up to investigate and report on the human rights violations by both State and non-State actors carried out in Kashmir valley since 1980s.
President's order abrogating the special status of Jammu and Kashmir upheld.
👉 Article 370 is a temporary provision.
👉 J&K retained no sovereignty.
👉 Presidential order (which changed the definition of 'J&K Constituent Assembly' as 'J&K Legislative Assembly') is invalid. But this is of no consequence since the Court held that the President can declare 370 inoperative even without any recommendation of JK Constituent Assembly.
👉Court did not decide whether the conversion of J&K as State was invalid since Union undertook to restore the statehood to JK as soon as possible. Court upholds the creation of Ladakh UT.
👉 Court directs that elections to the JK Assembly be held by September 30, 2024.
Shiv Sena(UBT) MP Arvind Sawant, "We welcome the decision but the things like rehabilitation of Hindus, putting an end to terrorism, making the people of J&K joining mainstream have not happened yet...".
"Disappointed but not disheartened. The struggle will continue. It took the BJP decades to reach here. We are also prepared for the long haul," tweeted National Conference leader Omar Abdullah
The Court ruling also said:
The principal challenge is the actions taken after the proclamation.
A person challenging the exercise of power must prove prima facie malafide.
The historical context of 370 shows it's a temporary provision.
Power to abrogate exists.
Article 370 cannot be amended by procedure outside procedure under 370(1)(D).
Interpretation clause cannot be used to bypass the procedure.
The president can issue unilateral notification that Article 370 has ceased to exist -- the did not need the concurrence of state governments.
"On the 5th of August 2019, PM @narendramodi Ji took a visionary decision to abrogate #Article370. Since then peace and normalcy have returned to J&K.
Growth and development have brought new meaning to human life in the valley once torn by violence. Prosperity in the tourism and agriculture sectors has raised the income levels of the residents of both Jammu, Kashmir and Ladakh," tweeted Home Minister Amit Shah.
"Today, the Supreme Court’s verdict has proved that the decision to abrogate #Article370 was completely constitutional. #NayaJammuKashmir." he wrote.
"After the abrogation of #Article370, the rights of the poor and deprived have been restored, and separatism and stone pelting are now things of the past. The entire region now echoes with melodious music and cultural tourism. The bonds of unity have strengthened, and integrity with Bharat stands reinforced. It is once again the Jammu, Kashmir, and Ladakh that always belonged to our nation and will continue to be so.
"Under the leadership of PM @narendramodi Ji our government is committed to establishing lasting peace in J&K and Ladakh and the all-around development of the region.
Whether it is boosting the local economy with new incentives, building state-of-the-art educational infrastructure, or empowering the poor with welfare benefits, we will continue to exert all our might for the region. #NayaJammuKashmir," - the Home Minister wrote.
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