New Delhi: The Supreme Court on Monday upholding abrogation of Article 370, which gave special status to Jammu & Kashmir, said, “We do not find that the President’s exercise of power under Article 370(3) was mala fide," and when the constituent assembly of Jammu and Kashmir ceased to exist, only one of the special circumstances for which the provision was introduced ceased.
A five-judge bench led by Chief Justice of India DY Chandrachud said, “The purpose of Article 357 is to ensure that while exercising the powers of the legislature of the state pursuant to a declaration under Article 356(1), Parliament, or as the case may be, the President is not impeded by an absence of competence, which would have impeded the exercise of a similar power in the absence of a Proclamation under Article 356."
The apex court noted that when a proclamation under Article 356 is in force, there are innumerable decisions which are taken by the Union government on behalf of the state government for day-to-day administration. “Every decision and action taken by the Union Executive on behalf of the state is not subject to challenge. Opening up a challenge to every decision would lead to chaos and uncertainty. It would in effect put the administration in the state at a standstill”, said the apex court.
Article 356 deals with a failure of constitutional machinery in a state. Clause 1 of Article 356 outlines both the substantive threshold for the invocation of the President’s rule and the legal powers that are delegated to the President and Parliament upon the invocation of the President’s rule.
The apex court said 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 and Kashmir as a state under Article 1(3)(a) of the Constitution and its conversion into a Union Territory under Article 1(3)(b) constitutes a valid exercise of power.
Article 356 (1) states that the President may by a Proclamation assume or declare the powers stipulated in clauses (a), (b), and (c) of Article 356(1). The powers stipulated in clauses (a), (b), and (c) of Article 356(1) are not automatically invoked when a proclamation is issued under Article 356.
The apex court said the exercise of power by the President under Article 370(1)(d) to issue CO 272 is not mala fide or malicious in its intention. The President, in exercise of power under Article 370(3), can unilaterally issue a notification that Article 370 ceases to exist, it said. The apex court said the argument of the petitioner that Parliament can only assume the lawmaking powers of the legislature of the state when the proclamation under Article 356 is issued is not accepted.
The apex court noted that purpose of Article 357 (Exercise of legislative powers under Proclamation issued under Article 356) is to ensure that while exercising the powers of the legislature of the state pursuant to a declaration under Article 356(1), Parliament, or as the case may be, the President is not impeded by an absence of competence, which would have impeded the exercise of similar power in the absence of a Proclamation under Article 356.
The apex court also examined the question regarding the effect of the dissolution of the Constituent Assembly of Jammu and Kashmir on the scope of powers under Article 370(3). “We have held that the power of the President under Article 370(3) to issue a notification declaring that Article 370 ceases to exist subsists even after the dissolution of the Constituent Assembly of Jammu and Kashmir for the following reasons: The proviso to Article 370(3) encapsulates the process by which the Indian states could ratify the Constitution of India. The Ruler of each Indian State had to issue a Proclamation ratifying the Constitution on the recommendation of the Constituent Assembly, where such body existed”, said the bench.
The apex court noted that in states where the constituent assembly was not convened by then, the Ruler of the State had to issue a Proclamation accepting the Constitution. The apex court said when a constituent assembly was convened in those states, the constituent assembly could make a recommendation for the modification of the Constitution as it applied to the State and such a recommendation would be “earnestly considered” by the Union.
“The words 'recommendation of the constituent assembly referred to in Clause (2) shall be necessary before the President issues such a notification' as it appears in the proviso to Article 370(3) must be read in this context. Thus, the recommendation of the Constituent Assembly to begin with was not binding on the President”, said the CJI.
The CJI said when the constituent assembly of Jammu and Kashmir ceased to exist, only one of the special circumstances for which the provision was introduced ceased. “However, the other circumstance (that is, special circumstance because of the situation in the State) for which Article 370 was introduced subsisted even after the constituent assembly ceased to exist", said the apex court.
The apex court said the President, while deciding if the power under Article 370(3) must be exercised determines if the special circumstances which warranted a special solution in the form of Article 370 have ceased to exist. “This is a policy decision, which completely falls within the realm of the executive. The court cannot sit in appeal over the decision of the President on whether the special circumstances, which led to the arrangement under Article 370, have ceased to exist”, said the bench.
The apex court said this is not a case where only Articles 1 and 370 of the Constitution were applied to the state of Jammu and Kashmir and suddenly after 70 the entire Constitution was made applicable. “The continuous exercise of power under Article 370(1) by the President indicates that the gradual process of constitutional integration was ongoing. The declaration issued by the President in the exercise of the power under Article 370(3) is a culmination of the process of integration. Thus, we do not find that the President’s exercise of power under Article 370(3) was mala fide”, said the bench.
