This perhaps was the most significant aspect of the top court’s ruling.
CO 273, which abrogated Article 370, was challenged on the ground that the Constituent Assembly of J&K which could recommend its dissolution, had ceased to exist.
In other words, it was argued by the petitioners the President could not have unilaterally issued a CO abrogating Article 370 by amending the proviso to Article 370(3) and replacing the term ‘Constituent Assembly’ with ‘Legislative Assembly’.
While the Court held that the procedure adopted to replace ‘Constituent Assembly’ with ‘Legislative Assembly’ was invalid, it said that the President could still issue CO 273.
This, the Court said, was because Article 370(3) was introduced with the object of Constitutional integration and not disintegration.
“Articles 370(1)(d) and 370(3) were introduced with the purpose of enhancing constitutional integration and not disintegration. So, the power under Article 370(1)(d) and Article 370(3) even when exercised to its fullest extent does not freeze the system of integration contemplated by Article 370 but is rather intended to enhance constitutional integration between the Union and the State of Jammu and Kashmir,” the judgment said.
Holding that the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would lead to the freezing of the process of integration, contrary to the purpose of introducing the provision, the Court said.
Further, the Court opined that this was not a case where only Articles 1 and 370 of the Constitution were applied to Jammu & Kashmir and suddenly after seventy years the entire Constitution was being 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 exercise of the power under Article 370(3) is a culmination of the process of integration.
Source: Barandbench
