The State of Jammu and Kashmir did not possess sovereignty.
Article 370(3) after the dissolution of the Constituent Assembly of the State.
Article 370(3) continues to operate.
69. An important question left to be determined is whether the power under Article 370(3) could be exercised after the Constituent Assembly of the State had dissolved itself.
70. We have already noted the temporary nature of Article 370, as apparent from the provision’s placement in the Constitution, its historical context, and its phraseology.
- Turning specifically to Article 370(3), which contains the procedure to bring the arrangement to an end, we may note that it vests power into two institutions: The President and the Jammu and Kashmir Constituent Assembly.
- The former is permanent, whereas the later is ephemeral by its very nature – meant for a specific purpose and intended to be extinguished after the purpose is achieved.
- The purpose of the Constituent Assembly was to draft a Constitution for the governance of the State.
- On the other hand, the purpose of Article 370, as noted above, was to slowly bring Jammu and Kashmir on par with other States in India.
- It can hardly be contended that the second (and in some ways, larger) purpose would be affected by the fulfilment of the first.
- The second purpose remained an ongoing exercise, long after the State Constituent Assembly was dissolved.
- Thus, the conditionality in Article 370(3), of the requirement of a recommendation from the Constituent Assembly, cannot be read in a manner as to make the reference to the larger intention of the provision redundant.
71. In a nutshell, if the provision was meant to be temporary (as established above), Article 370(3) must be construed to continue to be in subsistence even after the expiry of the conditionality, i.e. the State’s Constituent Assembly.
(From the SC Verdict, December 11, 2023)