The Supreme Court’s Constitution bench delivered a verdict on petitions challenging the removal of Article 370 and the division of Jammu and Kashmir into two Union territories.
The court supported the government’s decision to revoke Article 370, urging the assembly elections to be held by September 30 next year.
Additionally, the reorganization of Ladakh as a Union Territory was upheld. Justice Chandrachud highlighted that Article 370 was a temporary measure during wartime in the former state.
The five-judge bench, headed by Chief Justice DY Chandrachud, passed the judgment after a 16-day argument period, with the decision being reserved on September 5.
The Court’s findings regarding Article 370 and subsequent legal aspects are nuanced:
1. Internal Sovereignty: Despite Maharaja Hari Singh’s agreement with the Dominion, Jammu and Kashmir retained an element of internal sovereignty, recognized by Article 370, which acknowledged the Constituent Assembly of the State. Crucially, the ruling highlighted that in India, sovereignty lies with the people. The Constitution was adopted, enacted, and conferred upon themselves by the people through the Constituent Assembly, marking the exercise of sovereign power.
2. Temporary Provision: Article 370 was intended to be temporary, with mechanisms outlined in Article 370(3) to end this arrangement and apply the Indian Constitution entirely to the State.
3. Effectiveness of Article 370(3): The power of the President under Article 370(3) was unaffected by the dissolution of the Constituent Assembly, allowing the President to exercise this power for the complete integration of the State.
4. Validity of Constitutional Orders (C.O.):C.O. 273, ceasing Article 370’s operation, was declared valid as per Article 370(3). However, certain aspects of C.O. 272 were deemed ultra vires, but the remainder was upheld under Article 370(1)(d).
5. President’s Rule and Emergency Powers: President’s rule imposition after the State Assembly dissolution was justified, and emergency powers were deemed permissible, subject to judicial scrutiny to prevent arbitrary exercise.
6. Reorganization Act Validity: The challenge to certain sections of the Jammu and Kashmir Reorganization Act on the touchstone of Article 3 was deemed unnecessary due to the assurance of the Statehood’s restoration upon elections. Despite the absence of the State Legislature, functions were performed by the Union Parliament, justifying the Act’s validity.
7: Statehood: The Court held that the Centre had the power Under Article 3 of the Indian Constitution to bifurcate Jammu Kashmir into two parts- hence the separation is Ladakh is valid, however, statehood to Jammu Kashmir needs to be restored at the earliest.
8: Elections: The Court said that since the centre has not provided any timeline for the restoration of the statehood, the assembly elections cannot be held hostage to the restoration of statehood. The court ordered that the elections must be conducted in Jammu Kashmir before September 2024.
Jammu Kashmir did not retain sovereignty
In a recent court ruling, the debate surrounding the sovereignty of the State of Jammu and Kashmir upon joining the Indian Union was addressed. The contentious issue raised by petitioners regarding the retention of sovereignty by the state was thoroughly examined by the court.
The argument put forth by some petitioners was that while the Instrument of Accession (IoA) ceded control over defense, foreign affairs, and telecommunication, Jammu and Kashmir retained ‘internal sovereignty.’ They cited historical ties, the formation of the Constituent Assembly, the adoption of the state’s constitution, and retained legislative powers as evidence.
However, the Union of India contended that any sovereignty held by the state was relinquished upon signing the IoA. The Union emphasized that neither the Indian Constitution nor the Constitution of Jammu and Kashmir indicated the retention of sovereignty by the state.
The court delved into the concept of sovereignty, distinguishing between its historical understanding and its modern interpretation within legal frameworks. It elucidated that legal sovereignty signifies unlimited legislative power not subordinate to any other authority. While traditionally seen as absolute power, modern legal systems impose limits on legislative actions.
Crucially, the ruling highlighted that in India, sovereignty lies with the people. The Constitution was adopted, enacted, and conferred upon themselves by the people through the Constituent Assembly, marking the exercise of sovereign power.
The historical context of the union between India and Jammu and Kashmir was also outlined, tracing back to the 19th-century treaties and the subsequent governance under different rulers. The court acknowledged the evolution of governance structures within the region and their impact on the present-day debate over sovereignty.
This landmark ruling sought to clarify whether Jammu and Kashmir retained distinct sovereignty separate from its people and how the exercise of sovereign power by the people of Jammu and Kashmir differs, if at all, from that of Indian citizens in other states.
The judgment shed light on historical events shaping the region’s past, providing clarity on the sovereignty debate that holds significant implications for the present and future.
In the court judgment, the intricacies of Jammu and Kashmir’s historical journey towards accession to India were unveiled, spotlighting pivotal dates and notable figures in shaping the region’s destiny.
1834: General Zorawar Singh’s invasion led Ladakh into Dogra rule under Maharaja Gulab Singh of Jammu, eventually incorporating it into the State of Jammu and Kashmir by 1846.
1846: The Treaty of Lahore transfers territories to the East India Company, marking the transfer of certain areas to Maharaja Gulab Singh in the Treaty of Amritsar.
1935: Government of India Act establishes India as a federation, encompassing British India, Chief Commissioners’ Provinces, and the Indian States. Jammu and Kashmir’s inclusion would rely on the execution of an Instrument of Accession (IoA) by the Maharaja.
*1946:* British Cabinet Mission’s Statement outlines recommendations for a Union of India, where defense, foreign affairs, and communications would be under the Union’s control, while states would retain jurisdiction over other subjects.
1946-47: Constituent Assembly discussions commence, echoing the aspirations for an independent, sovereign republic.
1947: Objectives Resolution unanimously adopted by the Constituent Assembly, asserting India’s sovereign status and the autonomy of territories within the Union.
February 20, 1947: UK’s Prime Minister Clement Attlee announces full self-government for British India and leaves the future of Princely States undecided.
June 3, 1947: The Mountbatten Plan envisages partition and dominion status for successor governments and offers Princely States an option to join India or Pakistan.
June 15, 1947: The Congress Working Committee refutes the notion that the lapse of paramountcy would lead to the independence of states, contrary to the British perspective.
July 3, 1947: Sardar Patel urges Maharaja Hari Singh to swiftly align Kashmir with the Indian Union.
Notable figures like General Zorawar Singh, Maharaja Gulab Singh, and pivotal political leaders such as Sardar Patel, Lord Mountbatten, and Clement Attlee surfaced in various historical contexts, shaping the decisions and destinies of regions during that era.
The court’s exploration of these key dates and influential figures elucidated the intricate tapestry of historical events that influenced Jammu and Kashmir’s trajectory, offering a deeper comprehension of the region’s past and its implications for the present.
On July 10, 1947, the discourse surrounding India’s independence bill continued with significant commentary during its second reading. Prior to this, on July 5, 1947, Sardar Patel, at the helm of the States Department within the Ministry of Home Affairs, articulated a poignant message to the rulers of Indian States, emphasizing historical lessons and the imperative need for unity in the upcoming era of independence.
Patel’s address underscored the historical vulnerability stemming from India’s fragmented political landscape, cautioning against repeating past mistakes that led to foreign domination. Emphasizing the importance of a unified stance, Patel highlighted the imminent freedom and stressed the shared cultural, economic, and political ties that bound the nation.
Expressing his vision for a cohesive India, Patel urged the rulers to safeguard the nation’s integrity, stressing mutual cooperation and the preservation of interests for the collective good. He made a heartfelt appeal for the states to join the Constituent Assembly, aligning on the principle of Defense, Foreign Affairs, and Communications integration into the Indian Union, anticipating further engagement beyond these domains for the nation’s common interests.
Importantly, Patel assured that the approach of the new department towards the states would not reflect any sense of dominance; instead, it would be guided by mutual interests and collective welfare.
His impassioned plea aimed at securing a legacy of beneficial relationships for future generations, striving to elevate India to its rightful stature among global nations and transform it into a beacon of peace and prosperity.
This address by Sardar Patel encapsulated the fervent aspirations and the compelling call for unity and cooperation among the Indian states, setting the tone for discussions surrounding India’s independence and its subsequent trajectory.
Territorial Integration of States Explored in White Paper (1951)
The White Paper from 1951 delves into the intricate process of territorial integration, identifying two distinct categories of states in proximity to the Dominion of India: acceding and non-acceding States. Notably, only Hyderabad and Junagadh stood as non-acceding States.
The acceding States were further divided into groups: those unaffected by integration, Unions of States, Centrally-merged States, Provincially-merged States, and the Khasi Hill States Federation. The Constitution classified all constituent units into three classes: Part A, Part B, and Part C States.
Regarding Jammu and Kashmir, it was included as a Part B State following its accession to India on October 26, 1947. The State’s inclusion was akin to other acceding States, despite assurances that its accession was subject to the confirmation by its people.
The White Paper emphasized that Jammu and Kashmir continued to be a part of India, with the Union Parliament having jurisdiction to legislate on specified matters. It also outlined the process for convening a Constituent Assembly to make recommendations concerning Article 370.
In the context of Jammu and Kashmir, Maharaja Hari Singh delegated power to Yuvraj Karan Singh, who subsequently nominated representatives to the Constituent Assembly of India.
Several Princely States formed unified entities during this period, such as the United State of Saurashtra and the United State of Gwalior, Indore, and Malwa (Madhya Bharat). Jammu and Kashmir’s unique circumstances led to a transitional arrangement for its integration.
Jammu and Kashmir’s inclusion among Part III States under Article 1 was finalized on October 14, 1949, along with a reallocation of seats in the Constituent Assembly to accommodate changes resulting from mergers, unions, and direct administration.
On October 17, 1949, Jammu and Kashmir was allotted four seats in the Council of States, among other States outlined in Part III of the First Schedule.
Part III States: 1. Hyderabad 2. Jammu & Kashmir 3. Madhya Bharat 4. Mysore 5. Patiala & East Punjab States Union 6. Rajasthan 7. Saurashtra 8. Travancore-Cochin 9. Vindhya Pradesh
The detailed note from the Ministry of States highlighted the exceptional treatment of Jammu and Kashmir as a transitional arrangement until it could align with other States in India:
The Government of India have considered the matter in its various aspects and are of the opinion that in view of the present peculiar situation in respect of Jammu and Kashmir State it is desirable that the accession of the State should be continued on the existing basis till the State could be brought to the level of other States. A special provision has therefore to be made in respect of this State on the basis suggested above as a transitional arrangement.
The intricate constitutional processes underscored the complexities in integrating various states into the Indian Union during that period.
Allocation of Seats in Council of States (October 17, 1949):
– Hyderabad: 11 seats – Jammu & Kashmir: 4 seats – Madhya Bharat: 6 seats – Mysore: 6 seats – Patiala & East Punjab States Union: 3 seats – Rajasthan: 9 seats – Saurashtra: 4 seats – Travancore-Cochin: 6 seats – Vindhya Pradesh: 4 seats -Total Seats: 53 -Total Seats in Council of States: 205
Formation of Article 370 and Jammu and Kashmir’s Integration with India
Draft Article 306A, which eventually became Article 370 upon the Constitution’s adoption, was extensively debated in the Constituent Assembly on October 17, 1949. Gopalaswami Ayyangar elucidated the rationale behind Article 370, emphasizing the intricate history and conditions prevailing in Jammu and Kashmir post its accession to the Dominion of India on October 26, 1947.
Ayyangar underscored that while other states integrated themselves into the Indian Republic through constitutional means, Jammu and Kashmir required a different approach due to its unique circumstances. He articulated that the state’s accession occurred through an instrument, a practice to be replaced by constitutional integration.
The Proclamation issued for Jammu and Kashmir on November 25, 1949, by Yuvraj Karan Singh, acknowledged the Constituent Assembly’s inclusion of Jammu and Kashmir’s representatives. It declared the constitutional relationship between the state and the anticipated Union of India under the Constitution of India, superseding all other inconsistent provisions.
This Proclamation assumed significant importance in nullifying arguments asserting Jammu and Kashmir’s retained sovereignty due to a lack of merger agreement with India. It solidified the state’s acceptance and alignment with the Constitution of India, rendering previous provisions and declarations of sovereignty legally inconsequential.
The Constitution of India was adopted by the Constituent Assembly on November 26, 1949, marking its official enforcement on January 26, 1950, thereby replacing the Indian Independence Act 1947 and the Government of India Act 1935.
Subsequently, on May 1, 1951, Yuvraj Karan Singh issued a Proclamation, directing the establishment of an elected Constituent Assembly for drafting a Constitution specific to the State of Jammu and Kashmir. This assembly convened on October 31, 1951, signaling a new phase in the state’s constitutional evolution.
Sheikh Abdullah’s Address: Context of Jammu and Kashmir’s Accession
Sheikh Abdullah’s testimony before the Constituent Assembly highlighted the tumultuous circumstances that led to Jammu and Kashmir’s accession to India. He vividly described the invasion by Pakistani troops and tribesmen, emphasizing the brutal savagery unleashed on the people, leading to a collapse of the state’s defense and administrative machinery.
In the face of imminent occupation by Pakistani forces, Sheikh Abdullah underscored the local population’s united stand against the invaders, despite the lack of military experience and equipment. He detailed the efforts to seek help from India when the invaders approached Srinagar, explaining the challenges due to the absence of a formal agreement between Jammu and Kashmir and India.
He elucidated the multifaceted reasons supporting the accession to India, including the democratic principles, the Indian Constitution’s secular democracy, and the potential for economic and land reforms aligned with India. Sheikh Abdullah critically addressed the argument favoring accession to Pakistan based solely on religious grounds, refuting it by pointing out Pakistan’s feudal structure and highlighting the dispersion of Indian Muslims due to the creation of Pakistan.
Sheikh Abdullah rejected the idea of religious sentiment being the sole determinant for accession, emphasizing the need for rational assessment. He argued against the perception of Pakistan as a unified representation of all Muslims in the subcontinent, citing the dispersed nature of Indian Muslims and encouraging a thoughtful consideration of the diverse Muslim population residing in India.
Constitutional Integration of Jammu and Kashmir with India
The historical trajectory of Jammu and Kashmir’s association with India, as reflected in the Constitutions of both India and Jammu and Kashmir, emphasizes the surrender of sovereignty. The signing of the IoA partially relinquished sovereignty, while Yuvraj Karan Singh’s Proclamation in November 1949 marked the complete surrender.
The examination of constitutional provisions, particularly Article 1 of the Indian Constitution, reinforces the integration of Jammu and Kashmir into the Union. The inclusion of Jammu and Kashmir as a Part III State, the application of Article 1 to the State reiterated by Article 370(1)(c), and Section 3 of the Constitution of Jammu and Kashmir, unequivocally stating the state’s integral part in India, nullify arguments asserting retained sovereignty.
The adoption of the Constitution of Jammu and Kashmir by its Constituent Assembly in 1956 further solidified this integration. The Preamble explicitly delineates the Constitution’s purpose: not as an independent document but to define and strengthen the existing relationship of the state with the Union of India following its accession in 1947.
This Preamble reaffirms the state’s status as an integral part of India and underscores that the relationship between Jammu and Kashmir and India was already established through the IoA, the Proclamation by Yuvraj Karan Singh, and crucially, the Constitution of India itself.
In essence, both constitutional frameworks—India’s and Jammu and Kashmir’s—conclusively indicate the complete and irrevocable integration of the state into the Union of India, dispelling any notion of retained sovereignty.
Statements made during the debates of the Constituent Assembly of Jammu and Kashmir:
Shri Kushuk Bakula:“That we are thus made an integral party of India, that great country of high ideas and glorious traditions to which the nation of the world look for guidance and which is the one potent factor for the maintenance of world peace at the present day cannot but be a matter for unlimited jubilation for all of us…”
Shri Kotwal Chuni Lal: “We again stand by the pledge of the National Conference that Kashmir is an inseparable part of India.”
Mrs Isher Devi Mani: “The first point I want to emphasize is that we all must be aware that Kashmir is an integral part of India. We have acceded to India of our own free will and I see no reason why we should not be happy and jubilant over this.”
GM Sadiq, President of the State Constituent Assembly: “We are an integral part of India and shall remain so forever. (Loud applause). You stick to your decision. Today we are not alone or unarmed today we are with India and 360 million Indians.”
On 35 A and permanent residents of Jammu Kashmir
Section 6 of the Jammu and Kashmir Constitution delineates the status of permanent residents in the State. These residents are not accorded dual citizenship; instead, they are recognized as citizens solely of the Union of India. References to permanent residents signify individuals acknowledged as such before the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, based on the laws existing in the State or identified as such by laws legislated by the State’s Legislature.
Furthermore, the mention of the Rajpramukh signifies the individual acknowledged by the President as the Sadar-i-Riyasat of Jammu and Kashmir. This also encompasses any individual recognized by the President as authorized to exercise the powers of the Sadar-i-Riyasat.
The court observed that Article 35A was inserted into the Constitution of India to safeguard the laws related to the status of permanent residents in the State of Jammu and Kashmir. It provided protection to the existing laws in force within the state and any future laws enacted by the State Legislature.
The article specifically protected laws that defined who could be classified as permanent residents of Jammu and Kashmir, as well as laws granting special rights and privileges to these residents. Such rights encompassed aspects like employment opportunities within the state government, the acquisition of property in Jammu and Kashmir, the right to settle in the state, and access to scholarships and other forms of state-provided aid.
Importantly, Article 35A ensured that these laws, although conferring specific privileges on the permanent residents of Jammu and Kashmir, were not considered void or contradictory to the rights conferred upon other Indian citizens by the Constitution. This provision maintained the unique status and privileges of permanent residents within the state without contravening the fundamental rights granted to other citizens of India by the Constitution.
Justice’s Khanna Calls for Healing in Jammu & Kashmir Through Truth and Reconciliation Commission
In a heartfelt epilogue, Justice Khanna emphasized the historical burden carried by the Valley of Kashmir and its people, acknowledging the enduring suffering faced by the populace due to conflicts dating back to 1947. He lamented the unresolved consequences, which led to migrations and societal fractures, creating intergenerational trauma.
Justice Khanna highlighted the role of the Army in preserving the integrity of the State during tumultuous times, acknowledging the heavy toll paid by the residents of the region.
Expressing concern over the dwindling social fabric, Justice Khanna emphasized the necessity to heal wounds and restore historical values of coexistence, tolerance, and mutual respect. He drew attention to Mahatma Gandhi’s perception of Kashmir as a beacon of hope for humanity, despite the challenges.
To move towards healing, Justice Khanna proposed the establishment of an impartial truth and reconciliation commission. He stressed the importance of acknowledging human rights violations by both State and non-State actors, advocating for a collective understanding of the truth and an inclusive narrative.
Referencing successful models like South Africa’s truth and reconciliation commission, Justice Khanna underscored the need for such a commission to investigate violations since the 1980s in Jammu & Kashmir, fostering reconciliation and providing closure to victims.
Recognizing the government’s role in this process, Justice Khanna urged for expedited action, addressing the growing generation with feelings of distrust. He acknowledged that while this recommendation falls beyond the court’s purview, it aligns with the ethos of constitutionalism and the duty to address human rights violations.
Justice Khanna highlighted the judiciary’s historical sensitivity to societal demands, citing instances like the Vishaka case, where the courts provided guidelines to address workplace sexual harassment before relevant legislation was enacted.
In closing, Justice Khanna’s poignant epilogue advocated for a transformative approach through transitional justice, aiming to heal wounds, restore social harmony, and pave the way for a collective reconciliation in Jammu & Kashmir.
Justice Khana
Expressing agreement with both judgments, Justice Khanna stated, “I find it difficult to state that I agree with the reasoning in one and not the other. I, therefore, respectfully concur with the two judgments.”
Furthermore, the judgment addressed the conversion of a state into a Union Territory, emphasizing the gravity of such a transition and its impact on federalism. It stressed the necessity for strong and compelling grounds justifying such conversions, in strict compliance with Article 3 of the Constitution of India.
Justice Khanna echoed the sentiments expressed by both justices on various aspects, including the restoration of the statehood of the Union Territory of Jammu and Kashmir and the continued operation of Article 370(3) even after the dissolution of the Constituent Assembly of the State.
Constitutional integrity via CO 282 shall be welcomed
In a significant ruling, the legality of Constitutional Order (C.O.) 272 under the ambit of Article 370 has been upheld. The decision comes as the Supreme Court drew on precedent, specifically the Mohd. Maqbool Damnoo v. State of Jammu & Kashmir case, where the substitution of Sadar-i-Riyasat for Governor in C.O. 74 was validated.
The Court emphasized that alterations to Article 370 must follow the amendment process through Article 367, exercising the President’s powers as specified in Article 370(1)(d). Failure to keep this route open would render Article 370 permanent, contrary to the original intent of the Constitution makers.
The amendment to Article 367, via Article 370(1)(d), was underscored as having obtained concurrence, a crucial requirement, even if acquired from the Governor while acting in place of the Council of Ministers. This, the Court clarified, establishes a higher threshold than mere recommendation as stipulated under Article 370(3).
Highlighting the democratic principles embedded in C.O. 272, the Court noted its enactment based on Parliament’s recommendation and the President’s decision aligning with the advice of the Council of Ministers accountable to Parliament.
The overarching view expressed by the Court emphasized the welcoming of Constitutional measures aimed at enhancing equality, individual dignity, national unity, and integrity.
Constitutional Order 273 Within Legal Bounds
Amidst ongoing legal discourse, Constitutional Order (C.O.) 273 has been upheld as constitutionally sound. The argument presented emphasizes that even if the Constituent Assembly dissolved without recommendation, it did not render the main provision—Article 370—ineffective. It’s underscored that the President retains the authority to abrogate Article 370 in the absence of modification to Article 367 through C.O. 272. The choice of Article 370(1)(d) was made considering the State’s strategic significance and the necessity for parliamentary debate.
The Court emphasized Article 370 as vesting the President with constituent power, distinct from ordinary judicial review standards like mala fides. The ruling distinguished the case from Delhi Laws, in Re, which dealt with statutory delegation of power, whereas in the present context, the powers assigned to the President stem directly from the Constitution itself.
This decision solidifies the legitimacy of C.O. 273 within the constitutional framework, acknowledging the President’s authority in matters concerning Article 370 and the unique powers vested therein.
Legitimacy of Power Exercise under Article 356 in Issuing C.O. 272 and C.O. 273
The exercise of power under Article 356 in issuing Constitutional Orders 272 and 273 has been deemed permissible under the legal microscope.
Article 356, encapsulating all legislative and constituent powers within Parliament, was highlighted as not subject to limitations imposed by Article 357, which specifically addresses Parliament’s authority to ‘make laws’. The distinction was made clear that Article 357 doesn’t pertain to the broader ‘powers of the legislatures’ as referenced in Article 356(1)(b), implying no inherent constraints within the scope of Article 356.
Additionally, the challenge mounted against the imposition of Governor’s and President’s Rule was contested on the grounds of its belated nature, raised nearly 14 months after the fact.
This legal interpretation reaffirms the legitimacy of exercising Article 356 powers in enacting Constitutional Orders 272 and 273, highlighting the overarching parliamentary authority encompassed within Article 356 without implied limitations from Article 357.
Article 370 – The Temporal Framework for J&K’s Integration Process
The court delved into the nuanced nature of Article 370 concerning Jammu and Kashmir’s integration into India.
Initially conceived as an interim measure due to the region’s unique circumstances, Article 370 was designed to facilitate a gradual integration process over time.
The provision’s wording and placement in Part XXI, titled ‘Temporary and Transitional Provisions’, along with its marginal note, ‘Temporary Provisions with Respect to the State of Jammu and Kashmir’, underscore its transitional nature. Notably, Article 370 included clauses delineating the State’s relationship with the Union. Clause (1)(a) excluded the application of Article 238 and Part VI, while (1)(b) authorized Parliament to legislate on specified subjects after consultation or concurrence with the State Government.
Article 370(1)(c) affirmed the application of Articles 1 and 370, confirming Jammu and Kashmir’s integration into India. Clause (1)(d) allowed for extending ‘other provisions’ of the Constitution to the State with exceptions and modifications specified by the President. Importantly, Article 370(3) outlined the procedure to end this arrangement, requiring a recommendation from the Constituent Assembly.
The mechanism of extending Parliament’s law-making power and the Constitution’s provisions gradually aimed to align Jammu and Kashmir with other states. This incremental approach was evident through Presidential Constitutional Orders, emphasizing the ongoing process of integration post the region’s integration under Article 1.
While the debate over Article 370’s temporariness until the dissolution of the State Constituent Assembly was previously addressed in Sampat Prakash v. State of Jammu and Kashmir, where the Court upheld Article 370’s continuity, the question regarding the exercise of power under Article 370(3) after the Assembly’s dissolution remains open and is presently under consideration.
Constitutional Implications of Article 3 in Jammu and Kashmir’s Reorganization
The issuance of CO 272 before the discussion of the Jammu and Kashmir Reorganization Bill, 2019 in Parliament implied the application of all provisions of the Indian Constitution to the region. Consequently, Article 3, pertaining to the formation, alteration, and naming of States, became applicable in Jammu and Kashmir.
A pivotal query emerged: Did Article 3 empower the conversion of a State into a Union Territory, effectively nullifying its status as a State? This question hinged on precedents set by the Supreme Court.
In previous judgments, the Court clarified that States in India lacked independent sovereignty, drawing from the Constitution’s framework, absence of dual citizenship, and Parliament’s broad authority to alter State boundaries. States had no inherent constitutional protection against Parliament’s exercise of this authority; their role was limited to expressing opinions.
This understanding was reaffirmed in subsequent cases, emphasizing that States derived existence from the Constitution, while Parliament held the power to modify State boundaries without the need for constitutional amendments.
Agreeing with these findings, it was acknowledged that States didn’t possess standalone sovereignty but rather derived existence from the Constitution. While petitioners argued that converting a State into a Union Territory contradicted the federal principle, the Solicitor-General contended that such an action wouldn’t disrupt the federal structure, citing the application of Article 239A to the newly formed Union Territories.
However, in the present context, the Solicitor-General assured the Court of the Union’s commitment to restoring Jammu and Kashmir’s statehood in the future, post-elections, negating an immediate need to delve deeper into this aspect.
The judgment is being thoroughly analyzed by the editing team of The Kashmiriyat. Refresh the page to read the latest version.