The Supreme Court judgement by the five-member constitutional bench on Dec 11, 2023, has made it absolutely clear that in terms of matters related to national security, national integration and 'powers' of states vis-a-vis the centre, it is New Delhi and that way the President of India is the legal custodian and supreme of all.
It is again made clear that the substantive part of Article 3 of the Constitution gives power to the Parliament/President of India to enact a law with regard to any of the matters provided in clauses which includes the power to grow or diminish an area of a State as well as to alter any State’s name.
The Supreme Court order on Dec 11, 2023 has once again made it clear that the spirit of the judgment in Babulal Parate v. State of Bombay (1959-1960) that the views of the State legislature regarding the reorganisation of that State were not binding on centre has been upheld. An argument is being built in certain quarters that the Aug 5, 2019 centre's decision and the Supreme Court verdict has tilted the overall balance with regard 'federalism' in favour of the centre.
It is stating the obvious, meaning there cannot be any dispute over that. It cannot be anybody's case to suggest that states and the centre have 'equal' powers. It is simply because the titular head of a state is appointed by the President of India; and the office of the President derives power from Parliament and executes the power through the central cabinet headed by Prime Minister of India.
There was a debate/discussions during the 16-day marathon hearing in the Supreme Court on whether Article 370 'could be amended' or not. The petitioners who opposed the abrogation move of 2019 and their counsels were not quite clear with their arguments on the matter each time a judge(of even government counsels) put that 'direct question'. The judgement of Dec 11 was a landmark also because the apex court said for all practical purpose, one does not need any Constituent Assembly.
In other words, the absence of any Constituent Assembly is not a bar on the powers of the President of India.
Experts say the Article 370 was actually like an 'instrument' to extend the Constitution of India to Jammu and Kashmir; in other words 'ending' the Article -- now with the seal of the highest court of the land - makes it clear that now all provisions of the Constitution of India will stand 'extended' to Jammu and Kashmir and Ladakh. This was perhaps also an unfinished agenda of the Constitution of India.
Home Minister Amit Shah's repeated questions to Congress members why no such Article 370 was extended even to 'Hyderabad' and any other princely state are based on these arguments and not surprisingly, the Congress party did not have any response to that.
Article 3 of the Constitution, that deals with 'formation of new states and alteration of areas', boundaries or names of existing states, requires the President to necessarily refer such a law to the state legislature concerned for “expressing its views.” That's not disputed but the final say lies with the President and Parliament of India.
The President specifies the time period, which may be extended, within which the Legislature of the State must express its opinion. However, if the specified period terminates and the State Legislature has failed to express its views on the same then the second condition of the proviso to Article 3 will/could be considered to be filled despite the failure of the State Legislature to express its views.
Moreover, when a state is under President's Rule, the parliament already has that power.
In ruling that President of India, that is the Union Govt or Parliament can, effectively, unilaterally change the status of a state to a Union Territory if the state is under President’s rule, the Supreme Court has made it clear who can have the final say. This is a gigantic development in more ways than one.
In 1994 there was yet another important verdict popularly known as 'Bommai case'. It is yet again made clear that unilateral action or a presidential order is permissible as long as it is not “mala fide.”
Understanding the SC verdict on Article 30 ::: Simplified for you !!
“We hold that Article 370 is a temporary provision. It was introduced to serve transitional purposes to serve an interim process. It was for a temporary purpose because of war conditions in the State. Textual reading also shows it is a temporary provision and thus it was placed in part 21 of the Constitution,” - the Supreme Court ruled
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While delivering its judgement, the five-member bench said it took a textual reading of the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution dealing with temporary provisions and thus the learned judges ...
upheld the Modi government’s decision to revoke Article 370 saying that it was a temporary, transitional provision.
After 16 days of hearing, the Indian Supreme Court in a unanimous ruling upheld the Narendra Modi government’s decision in 2019 to scrap Article 370 of the Indian Constitution that had guaranteed special autonomous status to the erstwhile state of Jammu and Kashmir.
It also upheld the move to carve out a separate union territory of Ladakh from Jammu and Kashmir in August 2019.
There were three concurring judgements in response to a clusters of petitions ....the three judgements pertained to:
1) Whether substitution of ‘constituent assembly’ by legislative assembly by using Article 370(1)(d) was valid.
2) Whether the Presidential rule imposed in December 2018 and subsequent extensions valid, and;
3) Whether the J&K Reorganisation Act bifurcating the state into two Union Territories was constitutionally valid.
Notably, contained within Article 370 was Article 35A, which allowed the erstwhile state to define who it acknowledged as permanent residents and gave special rights, such as government jobs and owning property.
Article 370 gave Jammu and Kashmir its own Constitution and decision-making rights for all matters barring defence, communications and foreign affairs. Its removal ended the special status to the state.
However, the Bench said categorically Article 370 was a temporary measure and hence could be abrogated.
It was 'understood' that JK Assembly would have the authority to determine the future course of Article 370.
In 1951 a Constitution Assembly was elected for Jammu and Kashmir to formulate the constitution of Jammu and Kashmir within the ambit of Indian Constitution, and ‘subjects in respect of which the state should accede to the Union of India.'
A crucial part of the verdict is :
"The J&K constituent assembly was not intended to be a permanent body. It was formed only to frame the Constitution. The recommendation of the Constituent Assembly was not binding on the President," said Chief Justice Chandrachud.
In the 2019 Presidential orders, Parliament brought a provision giving new meaning to “constituent assembly of Jammu and Kashmir”, to mean “Legislative Assembly of Jammu and Kashmir”, and then assumed the powers of the Legislative Assembly through President's rule to revoke Article 370.
The petitioners objected to it asking whether these actions could be taken by the Union assuming powers of the state when it is under President’s rule.
The top court upheld the proclamations by referring to the landmark 1994 ruling in ‘SR Bommai v Union of India’ which dealt with the powers and limitations of the Governor under President’s rule.
CJI DY Chandrachud said that the governor (President in J&K’s case) can assume “all or any” roles of the state legislature and such action must be tested judicially only in extraordinary cases.
Citing an interpretation of the Bommai ruling, the SC said that there is “no prima facie case that the President’s orders were malafide or extraneous exercise of power.”
The Supreme Court held that J&K did not retain any element of sovereignty after its accession to India in 1947.
“The state of Jammu and Kashmir does not have internal sovereignty different from other states. Whether Jammu and Kashmir retained an element of sovereignty or internal sovereignty when it joined the Union of India, we have held no,” CJI said.
During the rule of Maharaja (king) Hari Singh, the erstwhile ruler of the princely Jammu and Kashmir state, he proclaimed that he would retain his sovereignty, the court said.
However, his successor Karan Singh issued another proclamation that the Indian Constitution would prevail over all other laws in the state, it noted.
The court ruled that the subsequent proclamation had the effect of a merger like every other princely state that had joined India.
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