Supreme Court: The 5-Judge Constitution Bench comprising of Chief Justice of India Dr. DY Chandrachud, Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, JJ., delivered its verdict, unanimously upholding the Union’s action abrogating Article 370 of the Constitution and directed the restoration of statehood in the State at the earliest. Three Judgments were delivered, one was authored by Dr. DY Chandrachud, CJI on behalf of himself, BR Gavai and Surya Kant, JJ., while Justice Kaul and Khanna, J. authored separate but concurring Judgments.
The detained analysis of CJI Chandrachud’s judgment can be read here.
Justice Kaul, who penned a separate but concurrent opinion, poured his heart out and observed that in order to move forward, the wounds need healing.
“What is at stake is not simply preventing the recurrence of injustice, but the burden of restoring the region’s social fabric to what it has historically been based on — coexistence, tolerance and mutual respect.”
Justice Kaul, who hails from the distinguished Dattareya Kauls of Srinagar, whose ancestry can reliably be traced back to over 500 years, wrote an epilogue saying that,
“During my travels home over the years, I have observed the social fabric waning, and the consequences of intergenerational trauma on an already fractured society. I cannot help but feel anguish for what peoples of the region have experienced and am constrained to write this Epilogue.”
Collective telling of the “truth” through a “Truth and Reconciliation Commission”
Calling for a collective understanding of the human rights violations perpetrated both by State and non-State actors, against the people of Kashmir, Justice Kaul said despite numerous reports documenting these incidents over the years, there no collective telling of the “truth”. Hence to achieve a “collective telling of the truth” Justice Kaul recommended the setting up of a Truth and Reconciliation Commission after taking cue from such commissions that have been effective globally. Giving example, he said
“South Africa’s truth and reconciliation commission was set up to investigate human rights violations perpetrated during the period of the Apartheid regime. It served as a means of reckoning or catharsis for victims, and fostered peace-building.”
Role of the Truth and Reconciliation Commission
Justice Kaul explained that the Commission will investigate and report on the violation of human rights both by State and non-State actors perpetrated in Jammu & Kashmir at least since the 1980s and recommend measures for reconciliation. He further added that this Commission should be set up expediently, “before memory escapes”.
“There is already an entire generation of youth that has grown up with feelings of distrust and it is to them that we owe the greatest duty of reparation. At the same time, considering the significance of the matter and the sensitivities involved, it is my view that it is for the Government to devise the manner in which this should be set up, and to determine the best way forward for the commission.”
He, however, cautioned that the Commission, once constituted, should not turn into a criminal court and must instead follow a humanized and personalized process enabling people to share what they have been through uninhibitedly. It should be based on dialogue, allowing for different viewpoints and inputs from all sides in order to facilitate a reparative approach that enables forgiveness for the wounds of the past, and forms the basis of achieving a shared national identity.
Supreme Court’s power to recommend the setting up of a Truth and Reconciliation Commission
On the Supreme Court’s power to recommend the setting up of a Truth and Reconciliation Commission, Justice Kaul sad that while recommending the setting up of a truth and reconciliation is beyond the realm of this Court, however, the Constitution of India is designed to ensure that courts offer justice in situations where fundamental rights have been violated. He observed,
“In doing justice, historically, our courts have been sensitive to the social demands of our polity and have offered flexible remedies. In Vishaka and Others v State of Rajasthan, (1997) 6 SCC 241, this Court issued guidelines to address workplace sexual harassment in the absence of an enacted law, which operated until the Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.”
He concluded by saying that the Commission is only one of the many avenues towards the goal of systemic reform and that “much will be achieved when Kashmiris open their hearts to embracing the past and facilitate the people who were compelled to migrate to come back with dignity.”
Quoting Jay Livingston and Ray Evans’s iconic song, “Que Sera, Sera”, Justice Kaul said,
“Whatever has been, has been but the future is ours to see.”
Justice Kaul’s conclusion on the Article 370 abrogation
a. The State of Jammu and Kashmir retained an element of internal sovereignty despite Maharaja Hari Singh signing the IoA with the Dominion. Article 370 of the Constitution recognized this internal sovereignty by recognizing the Constituent Assembly of the State;
b. A combination of factors, such as Article 370’s historical context, its text, and its subsequent practice, indicate that Article 370 was intended to be a temporary provision;
c. Article 370(3) contained the mechanism to bring the temporary arrangement to an end, and in turn, to de-recognize the internal sovereignty of the State and apply the Constitution of India in toto;
d. Since Article 370 is meant to be a temporary arrangement, it cannot be said that the mechanism under Article 370(3) came to an end after the State Constituent Assembly was dissolved;
e. The power of the President under Article 370(3) was unaffected by the dissolution of the Constituent Assembly of Jammu and Kashmir. The President could exercise their power anytime after the dissolution of the Constituent Assembly of Jammu and Kashmir, in line with the aim of full integration of the State. Hence, C.O. 273, which declares that Article 370 shall cease to operate except as provided, and was issued under Article 370(3), is valid;
f. The power to issue C.O. 272 without the concurrence of the Government of the State is valid, as the power of the President is not limited by the concurrence of the Government of the State in this case;
g. The power under Article 370(1)(d) read with Article 367 cannot be used to do indirectly, what cannot be done directly. The power to make modifications under Article 370(1)(d) cannot be used to amend Article 370 and Article 367, which is an interpretation clause, cannot be used to alter the character of a provision. Therefore, Paragraph 2 of C.O. 272, which amends Article 367(4) is ultra vires Article 370;
h. However, the President had the power to apply all provisions of the Constitution of India to Jammu and Kashmir under Article 370(1)(d), which is similar to the power under Article 370(3). Therefore, the remainder of Paragraph 2 of C.O. 272 is valid;
i. President’s rule can be imposed after the dissolution of the State Assembly since the Presidential emergency was predicated on the failure of the constitutional machinery, which took place prior to the Governor’s rule and the dissolution of the Assembly by the Governor of Jammu & Kashmir was only a subsequent consequence;
j. Once the Presidential proclamation has been approved by both Houses of Parliament, so as to reflect the will of the people, the President has the power under Article 356 to make irreversible changes, including the dissolution of the State Assembly;
k. The imposition of an emergency highlights an extraordinary situation and in the absence of the State Government and State Legislature, the power of these elected organs must lie with any other competent authority. Article 357 does not bar the President from exercising the non-legislative powers of the State Legislature, and Article 356(1)(b) allows the Union Parliament to exercise all powers of the State Legislature without distinguishing between legislative and non-legislative powers of the State Legislature. Therefore, the President is permitted to exercise both legislative and non-legislative functions of the State Legislature. However, a proclamation of emergency is bound by judicial and constitutional scrutiny to ensure the exercise of emergency powers is not unfettered and absolute.
l. The challenge to Section 4 of the Jammu and Kashmir Reorganization Act on the touchstone of Article 3 is not required to be debated on account of the assurance on behalf of the Government of India that the Statehood of Jammu & Kashmir would be restored on elections being held;
m. It is imperative to ascertain the ‘views’ of the State Legislature under the first proviso to Article 3 if the proposed Bill affects the area, boundaries or name of the State. However, in the instant case since the State of Jammu & Kashmir was under President’s Rule and the State Legislature was already dissolved, the functions of the State Legislature were performed by the Union Parliament. Hence, it was not possible to ascertain the views of the State Legislature. It follows that Section 3 of the Reorganization Act is valid.
[Article 370 of the Constitution, In re, 2023 SCC OnLine SC 1647, Decided on: 11-12-2023]
Judgments Authored by: CJI Dr. DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna
Justice Sanjay Kishan Kaul — A torch bearer of Freedom of Speech and Expression
Know Thy Judge| Supreme Court of India: Justice Sanjiv Khanna
Advocates who appeared in this case :
For Applicants: AOR Aakarsh Kamra, Senior Advocate Nitya Ramakrishnan, AOR N. Sai Vinod, Advocate Prasanna S, Advocate Malavika Prasad, Advocate Shadan Farasat, Advocate Rupali Samuel, Advocate Archit Krishna, Advocate Vibhor Jain, Advocate M.V. Mukunda, Advocate Swati Arya, Advocate Yuvraj Singh Rathore, Senior Advocate Muzaffar Hussain Baig, AOR Aftab Ali Khan, Advocate Murtazza. A. Khan, Advocate Safina Baig, Advocate M.Z. Chaudhary, Advocate Ali Safeer Farooqi, AOR Anirudh Sharma, Advocate Barun Kumar Sinha, Advocate Pratibha Sinha, Advocate Rakesh Mudgal, Advocate Pankaj Kumar Shukla, Advocate Niraj Kumar, Advocate Sneh Vardhan, Advocate Ritu Raj, AOR Advocate Rameshwar Prasad Goyal, AOR Anil Kumar Jha, Advocate Vijayalaxmi Jha, Advocate Jyoti Kumari, AOR M.C. Dhingra, Advocate Vikrant Yadav, Advocate Gaurav Dhingra, Advocate Madhavi Yadav, Advocate Ashok Kumar, Advocate Mohnish Nirwan, Advocate Prashi Tyagi, Advocate Syed Imtiyaz, Senior Advocate Gopal Sankaranarayanan, Advocate Aparna Singh, Advocate Shivani Vij, Advocate Tanya Srivastava, Advocate Aditi Gupta, Advocate Trisha Chandran, Advocate Jhanvi Dubey, Advocate Ishita Chowdhury, Advocate Satyajit Sarna, Advocate Shrutanjaya Bhardwaj, Advocate Vikramaditya, Advocate Vishal Sinha, AOR Charu Ambwani, Advocate Soayib Qureshi, Senior Advocate Gopal Subramanium, Senior Advocate Kapil Sibal, AOR D. Mahesh Babu, Advocate Shishir Pinaki, Advocate Muzaffar Iqbal Khan, Advocate Dhanaeswar Gudapalli, Advocate Gautam Bhatia, Advocate Aparajita Jamwal, Advocate Malavika Prasad, Advocate Nizam Pasha, Advocate Ujwala Uppaluri, Advocate Jayavardhan Singh, Advocate Rishabh Parikh, Advocate Hima Lawrence, Advocate Desam Sudhakara Reddy, Advocate Mallika Das, Advocate Pawan Bhushan, Advocate D. Siva Rami Reddy, Advocate K. Venkateshwara Prasad, Advocate Lakshay Laroiya, Advocate Medi Yadaiah, Senior Advocate C.U. Singh, Advocate Dr. Saif Mahmood, AOR D. Abhinav Rao, Advocate Mayank Mikhail Mukherjee, Advocate Amjid Maqbool, Advocate Bidya Mohanty, Senior Advocate Advocate Shekhar Naphade, Senior Advocate Prashanto Chandra Sen, AOR Arjun Krishnan, Advocate Ankur Singh, Advocate Pratik Patnaik, Advocate Kaustav Som, Advocate Aishwarya Dash, Advocate Dr. Prashant Pratap, Advocate Farah Hashmi, Advocate Somya Yadava, Advocate Akshita Chhabra, Advocate Khyati Jain, Advocate Ranvir Singh, Senior Advocate Dr. Rajeev Dhavan, AOR Pritha Srikumar Iyer, Advocate Sulabh Rewari, Advocate Aditya Chatterjee, Advocate Mansi Binjrajka, Advocate Vidisha Singh, AOR P.V. Dinesh, Advocate Anna Oommen, Senior Advocate Dushyant Dave, Advocate Prashant Bhushan, AOR Mohd. Irshad Hanif, Advocate Shamim Irshad, Advocate Arshid Bashir, Advocate Rifat Ara Butt, AOR Jyotika Kalra, Advocate Dr. Charu Wali Khanna, Advocate Joydeep Mukherjee, Advocate Tripurari Ray, Advocate Balwant Singh Billowria, Advocate Atul Wadera, Advocate Anirudh Ray, Advocate Vivekanand Singh, Advocate Vijay Pratap Singh, Advocate Akshay Singh, Advocate Nithyananda Murthy P, Advocate Bhanu Prabha, AOR Shilpa Singh, Senior Advocate Ravindra Kumar Raizada, AOR Divya Roy, Advocate Sarthak Raizada, Advocate Adarsh Upadhyay, Advocate Surjeet Singh, Advocate Yasharth Kant, AOR Pallav Mongia, Advocate Hari Shankar Jain, AOR Vishnu Shankar Jain, Advocate Parth Yadav, Advocate Mani Munjal, Advocate Marbiang Khongwir, Senior Advocate Rakesh Dwivedi, Advocate Ashwini Kumar Upadhyay, AOR Ashwani Kumar Dubey, Advocate Roop Chaudhary, Advocate Eklavya Dwivedi, Advocate Chandra Shekhar, Senior Advocate Dr. Maneka Guruswamy, Advocate Utkarsh Pratap, Advocate Lavkesh Bhambani, Advocate Harshwardhan Thakur, Advocate Vidur Dwivedi, Advocate Akashdeep Pandey, Advocate Shahbaaz Jameel, Advocate Amit Pandey, Advocate Ayush Pandey, Advocate Ali Muzaffar, Advocate Monish Ali Khan, AOR Kausar Raza Faridi, Advocate Mehmood Umar Farouqui, Senior Advocate Advocate Z.A. Shah, Advocate Dharmendra Kumar Sinha, Advocate G.N. Shaheen, Advocate N.A. Ronga, Advocate M. Ashraf Bhat, Advocate Towseef Ahmed Dar, Advocate Bashir Sadiq, Advocate Sanjay K. Chaddha, Advocate Onkar Prasad, Advocate Ajay Amritraj, Advocate Barnali Basak, Advocate Shweta Sand, Advocate Baby Devi Bonia, Advocate Raju Sonkar, Senior Advocate Sanjay Parikh, Advocate Rohit Kumar Singh, AOR Abhimanue Shrestha, Advocate Ashutosh Jha
For Respondents: Advocate General R Venkataramani, Solicitor General Tushar Mehta, ASG K.M. Nataraj, ASG Vikramjit Banerjee, Advocate Kanu Agrawal, Advocate Rajat Nair, Advocate Ankur Talwar, Advocate Sharadha Deshmukh, Advocate Madhav Singhal, Advocate Anand Venkatramani, Advocate Vijay Lakshmi Venkatramani, Advocate Vinayak Mehrotra, Advocate Mansi Sood, Advocate Chitvan Sinhal, Advocate Sonali Jain, Advocate Abhishek Kumar Pandey, Advocate Raman Yadav, Advocate Kartikay Aggarawal, Advocate Prantap Singh, Advocate Gaurang Bhushan, Advocate Aman Mehta, Advocate Chitransh Sharma, Advocate Vatsal Joshi, Advocate Anuj Srinivas Udupa, Advocate Dr. Reeta Vasishta, AOR Arvind Kumar Sharma, AOR B. Krishna Prasad, Advocate General Shailesh Madiyal, Senior Advocate D.C. Raina, AAG Shailesh Madiyal, AAG Advocate Kanu Agrawal, AOR Pashupathi Nath Razdan, Advocate Parth Awasthi, Advocate Rushab Aggarwal, Advocate Maitreyee Jagat Joshi, Advocate Astik Gupta, Advocate Akshay Kumar, Advocate Akanksha Tomar, Advocate Vaibhav Sabharwal, Advocate Akanksha Tomar, Advocate Divija Mahajan, Advocate Sudhanshu Prakash, AOR Satyajeet Kumar, AOR Taruna Ardhendumauli Prasad, Advocate Charanjeet Singh Chanderpal, AOR Advocate Anil Kumar, Senior Advocate V. Giri, Advocate Suveni Bhagat, Advocate Harshad Sunder, Advocate Rahul Narang, Advocate Rao Vishwaja, AOR Advocate Deepak Goel, Advocate Rahul G. Tanwani, Advocate Manan Shanghai, Advocate V C Shukla, Advocate Prashant Singh, Advocate Anantha Narayan, Advocate Vipin Kumar Sexana, Advocate Chaman Rana, Advocate Alka Goyal, Advocate Urvashi Sharma, Advocate Kumar Kartikay, Advocate Mani Shanker Mishra, Advocate Jitendra Bharti, Advocate Baby Devi Bonia, Advocate Harshita Maheshwari, AOR Shadan Farasat, Advocate Warisha Farasat, Advocate Harshit Anand, Advocate Aman Naqvi, Advocate Prasana S,Advocate Hrishika Jain, Advocate Natasha Maheshwari, Advocate Mreganka Kukreja, Senior Advocate Colin Gonsalves, AOR Satya Mitra, Advocate Advocate Mugdha, AOR Harvinder Chowdhury, Advocate Ashwini Kumar Upadhyay, AOR Ashwani Kumar Dubey, Advocate Roop Chaudhary, Advocate Chandra Shekhar, AOR Advocate G. Sivabalamurugan, Advocate Vasantha Kumar A, Advocate Selvaraj Mahendran, Advocate P.V. Harikrishnan, Advocate Dr. Sumit, AOR Manoj K. Mishra, Advocate Rajshree Rai, Advocate Vinay Rai, Advocate J.K. Mishra, Advocate Umesh Dubey, Advocate Amrendra Kumar Singh, Advocate Madhulika, Advocate Rahul Pandey, senior Advocate Bimal Roy Jad, Advocate Dr. Brij Bhushan K. Jauhari, Advocate Riddhi Jad, Advocate Suresh Kumar Bhan, Advocate O.P. Singh, Advocate Harsh Mahan, Advocate Deepak Jyoti Ghildiyal, Advocate Baby Rani Bonia, Advocate Mini Bhardwaj, AAdvocate Purnima Jauhari, Advocate Sudha Pal, Advocate Rachna Gandhi, Advocate Vuzmal Nehru, Advocate Col. N B Vishen, Advocate Raghav Sabharwal, Advocate Tanvi Dubey, Advocate Anukrit Gupta, Advocate Rahul Unnikrishnan, Advocate Sanjay Kumar Dubey, Advocate Varun Byreddy, Advocate Mekala Ganesh Kumar Reddy, Advocate Riju Raj Singh Jamwal, AOR Madhusmita Bora, AOR K. Krishna Kumar, AOR Soayib Qureshi, AOR Disha Singh, Advocate Shivendu Gaur, Advocate Mrs. Nidhi Sharma, Advocate Mohit, Senior Advocate P.V. Surendranath, AOR Advocate Resmitha R. Chandran, Advocate Subhash Chandran K.R., Advocate Sawan Kumar Shukla, Advocate Sarvan Kumar, Advocate Murari Prasad Shukla, AOR Sumit R. Sharma, Senior Advocate S. Guru Krishna Kumar, Advocate Dileep Kumar Dubey, Advocate Yash Raj Singh Bundela, Advocate Amit Sharma, Advocate Rajan Kumar Chourasia, Advocate Vishnu Kant, Advocate Surjeet Singh, Advocate Rajeev Ranjan, Advocate Pavan Kumar, Advocate Aviral Saxena, Advocate Kavitha K T, Advocate Ashwin K, Advocate Gopal Jha, Advocate Tadimalla Bhaskar Gowtham, Advocate Siddharth Sinha, Advocate Rajesh K. Singh, Advocate Shyamal Kumar, Advocate Bitu Kumar Singh, Advocate Sunil Kumar Tomar, Advocate Ajay Kumar Pandey, Advocate Sandeep Singh, Advocate Pawan, Advocate Srishti Mishra, Advocate Rishi Tutu, Advocate Rajesh Bhushan, Advocate Nitin Sangra, AOR Shweta Singh Parihar, AOR Irshad Ahmad, Advocate Mrinal Kumar Sharma, Advocate M. Khairati, AOR Archana Pathak Dave, Advocate Sanjay Kumar Tyagi, Advocate Rajesh K Singh, Advocate Shyamal Kumar, Advocate Bitu Kumar Singh, Adv. Aditi Tripathi, Advocate Sindoora Vnl, Advocate V.C. Shukla, Advocate Kumar Prashant, Advocate Parmod Kumar Vishnoi, Advocate Avnish Dave, Advocate Vaibhav Dwivedi, Advocate Shashwat Nath, Advocate Sneh Lata Mishra, AOR Siddharth Praveen Acharya, Advocate Bhunesh Vyas, Advocate Nandini Choudha, Advocate Ravi Kant Purohit, Advocate Lokendra Singh, Advocate Mohit Chaudhary, Advocate Puja Sharma, Advocate Kunal Sachdeva, Advocate Madhuri Jain, Advocate Balwinder Singh Suri, Senior Advocate Mahesh Jethmalani, Advocate Anil Kaushik, Advocate Ravi Sharma, Advocate Mugdha Pandey, Advocate Ajay Awasthi, Advocate Ishita Farsaiya, Advocate Puneet Chahar, Advocate Prabhleen A Shukla, Advocate Pawan Kumar, AOR B. K. Satija, Senior Advocate Harish N. Salve, Advocate Ajit Tadav, Advocate Sanjay Kumar Tyagi, Advocate Pankaj Jamthani, Advocate Dileep Kumar Dubey, Advocate Alabhya Dhamija, Advocate Ajit Yadav, Advocate Surjeet Singh, Advocate Vishnu Kant, Advocate Sujata Upadhyay, Advocate Sarthak Raizada, AOR Divya Roy, AOR P.S. Sudheer, AOR K.V. Muthu Kumar, Advocate Anu B, Senior Advocate Z.A. Shah, AOR Dharmendra Kumar Sinha, Advocate G.N. Shaheen, Advocate N.A. Ronga, Advocate M. Ashraf Bhat, AAdvocate Towseef Ahmed Dar, Advocate Towseef Ahmed, Advocate Bashir Sadiq, Advocate Sanjay K. Chaddha, Advocate Onkar Prasad, Advocate Ajay Amritraj, Senior Advocate Dinesh Dwivedi, AOR K.K. Mohan, Advocate Prateek Dwivedi, Advocate Nishant Singh, Advocate Omprakash Ajitsingh Parihar, Advocate Arbind Kumar, Advocate Dushyant Tiwari, AOR Advocate Manju Jetley, Advocate Pooja Sagar, Advocate Sandeep, Advocate Sunil Prakash Pandey, Advocate Sarika Sriwastava, Advocate Praveen Pathak, Advocate Nagan Pillai, Advocate Davinder Pal Kaur, Advocate Harpreet Singh, Advocate Chandan Mishra, Advocate Shraddha Khandadia
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