The State of Jammu and Kashmir did not possess sovereignty.
The President can exercise their power under sub-clause (3) without a recommendation from the Jammu and Kashmir Constituent Assembly.
72. The next question is to determine what process is to be followed for the President to exercise their power under Article 370(3).
73. As discussed above, the power under Article 370(3) vests with two institutions – the President, who has a permanent power and the Constituent Assembly of the State, which has a temporary power.
- From the above analysis, if Article 370 can be abrogated even after the Constituent Assembly of the State has been dissolved, what follows is that the power of the Constituent Assembly of the State to make a recommendation cannot be read as a condition precedent to the exercise of the power of the President to issue a declaration under Article 370(3).
74. The Petitioners argue that the recommendation of the Constituent Assembly of the State is necessary for the President to exercise their power, or in other words, that the power cannot be exercised unilaterally in the absence of the Constituent Assembly of the State.
- I am unable to agree with this view. When the Constituent Assembly ceased to exist, only the power of the Constituent Assembly to make a recommendation ceased to exist, that is, the proviso to Article 370 became otiose.
- The main provision, which is the President’s power to issue a declaration continued to exist.
- Adopting the Petitioners’ view would mean that Article 370, which was meant to be temporary, would no longer be temporary after the Constituent Assembly ceases to exist.
- This is incongruent with the purpose of Article 370.
75. On the other hand, the power of the President to unilaterally deoperationalize Article 370 once the Constituent Assembly of the State ceases to exist accords with the vision of the Constituent Assembly of India and the purpose of Article 370 – to ensure full constitutional integration as and when the circumstances permitted the same. An evaluation of various Presidential Orders issued under Article 370(1) demonstrate that very little remained in terms of making constitutional integration complete at the time of issuance of C.O. 273.
76. Even prior to the Constituent Assembly of the State, the President had the power to de-operationalize Article 370. For example, Article 371 of the Constitution, prior to being amended in 1956 gave the President general control over Part B States for a period of ten years, extendable by
the Parliament.
77. Recognizing the power of the President, the word ‘recommendation’ is used in Article 370(3), which implies a very narrow and minimal standard of agreement, especially when contrasted with the
other conditionalities used in Article 370 which provide for ‘concurrence’ and ‘consultation’ with the Government of the State.
- A recommendation is advisory. Thus, the conditionality attached to the exercise of the President’s power was so negligible that its absence cannot efface the power of the President itself.
78. Mr. Sibal submits that even the Union was aware that the recommendation of the Constituent Assembly was necessary, and thereby proceeded to substitute it for another body using the route of Article 367. However, this need not have been done, since the President had the power to exercise the power under Article 370(3) unilaterally.
(From the SC Verdict, December 11, 2023)