"State of J&K does not retain any element of sovereignty": Key highlights from Supreme Court’s judgment on Article 370

Writing the judgement for himself and Justices B R Gavai and Surya Kant, the CJI said Article 370 was a temporary provision and the president was empowered to revoke it in the absence of the Constituent Assembly of the erstwhile state. Justices Sanjay Kishan Kaul and Sanjiv Khanna penned separate and concurring verdicts on the issue.

The top court also upheld the validity of the decision to carve out the union territory of Ladakh from Jammu and Kashmir on August 5, 2019. Justice Chandrachud referred to Solicitor General Tushar Mehta's statement that Jammu and Kashmir's statehood will be restored, except for the carving out of the Union Territory of Ladakh. "In view of the statement we do not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3. However, we uphold the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State," he said.

The CJI in his verdict also said that the Constitution of India was a complete code for constitutional governance. "The President had the power to issue a notification declaring that Article 370(3) ceases to operate without the recommendation of the Constituent Assembly. The continuous exercise of power under Article 370(1) by the President indicates that the gradual process of constitutional integration was ongoing," the CJI said while pronouncing the verdict.

The Chief Justice said the erstwhile state of J&K does not retain any "element of sovereignty" after the execution of the Instrument of Accession and the issuance of the proclamation dated November 25, 1949 by which the Constitution of India was adopted. "Article 370 was a feature of asymmetric federalism and not sovereignty," Justice Chandrachud said. He said the exercise of power by the president under Article 370(1)(d) to issue CO 272 (by which Indian Constitution was put into effect in J&K) was not mala fide.

The Supreme Court also directed restoration of statehood "at the earliest" as well as elections to the assembly by September 30 next year. "We direct that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by September 30, 2024. Restoration of statehood shall take place at the earliest and as soon as possible," the CJI said.