12:01 pm, 11 Dec 2023
Justice Sanjiv Khanna: We have only two judgments. Amending Article 367 was bad in law (CO 272) but the same objective could be achieved by 370(3) and thus the CO 273 is held to be valid.
11:51 am, 11 Dec 2023
Justice Kaul (reading the epilogue to his opinion): 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 the 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..
11:51 am, 11 Dec 2023
Justice Kaul: Not possible to ascertain the views of State legislature... since State Assembly was not in session.
11:49 am, 11 Dec 2023
Justice Sanjay Kishan Kaul reads his concurring opinion.
Justice Kaul: Article 370 was a temporary provision and the means was to derecognize internal sovereignty. 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 the 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.
11:48 am, 11 Dec 2023
Chief Justice Chandrachud sums up the conclusions:
1. Jammu and Kashmir does not retain any element of sovereignty after instrument of accession was signed;
2. No internal sovereignty for Jammu and Kashmir;
3. Challenge to the proclamation of Presidential rule is not valid;
4. Exercise of power of President must have a reasonable nexus with the object of presidential rule;
5. Power of Parliament to legislate for State cannot exclude law making power;
6. Article 370 was a temporary provision;
7. When Constituent Assembly was dissolved only the transitory power of the Assembly ceased to exist and no restriction on Presidential order;
8. Para 2 of CO 272 by which Article 370 was amended by amending article 367 was ultra vires as interpretation clause cannot be used for amendment;
9. President use of power was not mala fide and no concurrence needed with State
10. Para 2 of CO 272 in exercise of power under Article 370(1)(d) applying all provisions of Indian constitution to Jammu and Kashmir was valid;
11. The continuous exercise of power by the President shows the gradual process of integration was ongoing. Thus CO 273 is valid;
12. Constitution of Jammu and Kashmir is operative and is declared to have become redundant;
13. Presidential use of power not mala fide
14. Solicitor General made statement that Statehood will be restored to Jammu and Kashmir. We uphold the decision to carve out Union Territory of Ladakh. We direct Election Commission of India (should hold) polls under Section 14 of the Reorganisation Act and Statehood (should be restored) at the earliest.
11:35 am, 11 Dec 2023
CJI: Now on Jammu and Kashmir Reorganisation Act validity ... Solicitor General submits that Statehood will be restored to Jammu and Kashmir.. 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 Jammu and Kashmir by September 2024 and Statehood shall be restored as soon as possible.
Steps shall be taken so that elections are held in Legislative Assembly of Jammu and Kashmir by September 2024. Statehood shall be restored as soon as possible.
Supreme Court
11:34 am, 11 Dec 2023
CJI: On the validity of the exercise of power by the Parliament: Could the Parliament have substituted the views of the State Legislature? The views of State Legislature was not binding on Parliament.
11:28 am, 11 Dec 2023
CJI: We hold that the President seeking concurrence of the Union and not the State is not invalid. Thus all provisions of the Constitution can be applied to the Jammu and Kashmir. Consultation between State would be needed only when amendments are needed in the State constitution to ensure that constitution of the State is not inconsistent ... Principle of consultation and collaboration was not needed here. Mala fide can only be there when there is an intention to deceive.
11:25 am, 11 Dec 2023
CJI: We have held all provisions of the Constitution of India can be applied to Jammu and Kashmir and non application of mind cannot be claimed.
11:23 am, 11 Dec 2023
CJI: Article 370(3) was introduced for constitutional integration and not for constitutional disintegration. Holding that 370(3) cannot be used after Constituent Assembly was dissolved cannot be accepted since it was freeze the provision for constitutional integration. Court cannot sit in appeal over the decision of the President of India. The decision is however not beyond of judicial review and slew of Constitutional Orders under Article 370(1)(d) shows that the Union and the State through a collaborative process had applied the Constitution of India to the State of Jammu and Kashmir. This shows the gradual process of integration was ongoing and thus we do not find use of Presidential power was malafide. Thus we hold the Presidential power to issue the notification was valid.
We hold the Presidential power to issue the notification was valid.
Supreme Court on Constitutional Order 273 abrogating Article 370
11:21 am, 11 Dec 2023
CJI: Recommendation of the Constituent Assembly, to begin with, was not binding on the President ... Constituent Assembly was never intended to be a permanent body but a body with a specific remit and purpose. The power conferred by the proviso to Article 370 (3) was, hence, something which was to operate in a period of transition ... When the Constituent Assembly of Jammu and Kashmir ceased to exist, the special condition for which Article 370 was introduced ceased to exist but the situation in the State remained and thus the Article remained.
Recommendation of the Constituent Assembly, to begin with, was not binding on the President. Constituent Assembly was never intended to be permanent body.
Supreme Court
11:20 am, 11 Dec 2023
CJI: Now effect of dissolution of Constituent Assembly. We hold that the effect of the Presidential Power to issue a notification abrogating Article 370 subsists. A ruler of each Indian state had to issue a proclamation adopting the Constitution of India.
We hold that the effect of the Presidential Power to issue a notification abrogating Article 370 subsists.
Supreme Court
11:19 am, 11 Dec 2023
CJI: Now challenge to Constitutional Order 273.
To answer this, we have to decide if 370 is a temporary provision. We hold that Article 370 is a temporary provision. It was introduced to serve transitional purposes, to provide for an interim arrangement until the Constituent Assembly of the State was formed and could take a decision on the legislative competence of the Union on matters other than the one stipulated in the instrument of accession and to ratify the Constitution. Second, it was for a temporary purpose, an interim arrangement, in view of the special circumstances because of the war conditions in the State. Textual reading also shows it is a temporary provision. For this purpose, we have referred to the placement in Part 21 of the Constitution which deals with temporary and transitional provisions.
"We have held that Article 370 is a temporary provision."
Supreme Court
11:14 am, 11 Dec 2023
CJI: All States in the country have legislative and executive powers.. Articles 371 (a) to (j) are examples of special arrangements of different States and is an example of asymmetric federalism. Thus Jammu and Kashmir does not have internal sovereignty and (is) like all States and Union Territories of India.
11:12 am, 11 Dec 2023
CJI: By issuance of proclamation, para 8 of instrument of accession ceases to exist. Neither constitutional text states that Jammu and Kashmir had any internal sovereignty. The proclamation by Yuvraj Karan Singh in 1949 and constitution thereafter cements it. That the State of Jammu and Kashmir became integral part of India is evident from Article 1 of the Constitution of India.
11:10 am, 11 Dec 2023
CJI: Whether Jammu and Kashmir retained an element of internal sovereignty after it acceded to India? We hold that it does not hold any internal sovereignty after accession to Union of India.
"We hold that Jammu and Kashmir does not hold any internal sovereignty after accession to Union of India."
- Supreme Court
11:09 am, 11 Dec 2023
CJI: Purpose of Article 357 is that Parliament or the President are not impeded by the absence of competence.. Article 357 does not contain non-obstante provision... To read the way petitioners point would be (in a way that) the Constitution does not provide.
11:09 am, 11 Dec 2023
CJI: The exercise of the President's power for everyday running of business cannot be subject to regular judicial review. The power of the Legislature of the State under 357 to repeal or amend the law must be read in the context of 42nd amendment act.. The repealing statute would make subsistence for the legislation. An ordinance, which is in nature of law, has limited life.
11:08 am, 11 Dec 2023
CJI: Principle underlined under Article 356(1) must be such that action of President must give effect to the object of the proclamation. Thus, the principle which runs through Article 356(1)(c) says exercise of power must have a reasonable nexus with the object of the proclamation. We hold that every action of the Union on behalf of the State will lead to administration of State to a standstill and is not open.
11:07 am, 11 Dec 2023
CJI: There are limitations on power of the Union in States when a proclamation of Presidential rule is in force. SR bommai judges adopted a different approach to test validity of power exercised by the President... This bench is bound by the SR Bommai case judgment (a 9-judge bench decision) since we are in 5 judges combination... We hold that limitations are there when proclamation is made under Article 356... Article 356(1) states that power in clauses a, b, c are not automatically invoked. Article 356(1) does not have an all or none formula.. Centre can exercise some and State can function on some areas.. It says Union power is dependent on the circumstances which led to the proclamation.
11:06 am, 11 Dec 2023
CJI: This court need not adjudicate on validity of proclamations because main challenge was to abrogation and if it can be done during President rule and even if its held proclamation could not be done, no material to say the President rule cannot be invoked. These challenges form the fulcrum of challenges by petitioners.
11:03 am, 11 Dec 2023
CJI: The reference before the Constitution bench raises the following questions:
a) Whether the provisions of Article 370 were temporary in nature or whether they acquired the status of permanence in the Constitution?
b) Whether the amendment to Article 367 and exercise of the power under Article 370 (1) (d) to substitute the reference to the Constituent Assembly of the State referred to in Article 370 (3) by the words "Legislative Assembly of the State" is constitutionally valid?
c) Whether the entire the entire Constitution of India could have been applied to the State of Jammu and Kashmir in exercise under Article 370 (1)(d)
d) Whether the abrogation of Article 370 by the President in the 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 and Kashmir as mandated by the proviso to clause (3)?
e) Whether the proclamation of the Governor dated 20 June, 2018 in exercise of the power conferred by Section 92 of the Constitution of Jammu and Kashmir and the subsequent exercise of power on 21 November 2018 under Section 53 (2) of the Jammu and Kashmir Constitution to dissolve the Legislative Assembly are constitutionally valid?
f) Whether the proclamation issued by the President under Article 356 of the Constitution on 19 December 2018 and the subsequent extensions are constitutionally valid?
g) Whether the Jammu and Kashmir Reorganisation Act, 2019, by which the State of Jammu and Kashmir was bifurcated into two Union Territories is constitutionally valid...?
10:58 am, 11 Dec 2023
CJI Chandrachud: There are 3 judgments, one by the CJI for himself, Justices Gavai and Surya Kant. There is a concurring opinion authored by Justice Sanjay Kishan Kaul. Justice Sanjiv Khanna has concurred with both the judges.
10:56 am, 11 Dec 2023
The five-judge Constitution bench assembles. The bench consists of 5 senior-most judges of the Supreme Court.
11 Dec 2023 10:38 AM
Lawyers are waiting for the bench to assemble.
11 Dec 2023 10:32 AM
The bench comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant will assemble shortly to pronounce the judgment in the #Article370 case.
The Supreme Court will pronounce its judgment in the Article 370 case today at 10.30 AM.
A 5-judge bench led by Chief Justice of India DY Chandrachud will decide the validity of the Presidential Orders of 2019 repealing the special status of Jammu and Kashmir.
Picture Source :
