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Case name: In Re : Article 370 of the Constitution 

Bench: Hon’ble Chief Justice D.Y Chandrachud, Justice B.R Gavai, Justice Surya Kant, Justice  S.K Kaul and Justice Sanjay Khanna. 

Pronounced on: 11th December, 2023 

Introduction : 

The President of India in 2019 issued Constitutional Orders 272 and 273 (Hereinafter CO 272 and CO 273) which held Article 370 of the constitution ineffective to the State of Jammu and Kashmir. The respective COs were issued through a proclamation under Article 356(1)(b) which gives the President the power to act during the constitutional failure of state machinery. 

Facts : 

The then Chief Minister of Jammu and Kashmir of the People’s Democratic Party resigned after the alliance between PDP and BJP party. The next day, the Governor proclaimed under Section 92 of the Constitution of Jammu and Kashmir which entrusts power to the Governor to assume all the powers and functions of the Government of the State in the event of a failure of the constitutional machinery in the State. Subsequently, the Governor dissolved the Legislative Assembly of the state. The President then passed a proclamation under Article 356 promulgating the President’s rule in the state after a report was passed by the governor. 

The President then passed CO 272 under the powers available to him by virtue of Article 370(1). In the Order, through Article 367 which is the interpretation clause, provisions of Article 370(3) were amended. The change made in the article was to replace “constituent assembly” with “legislative assembly”. In furtherance to that, CO 273 was passed which abrogated Article 370 by the powers provided to the President through Article 370(3). 

In the meanwhile, the parliament in 2019 passed an Act called the Jammu and Kashmir Reorganization Act, 2019 which bifurcated the state into two union territories. I.e the UT of Jammu and Kashmir and the UT of Ladakh. 

The petitioners have challenged the validity of CO 272 and 273 along with the validity of the Act. 

Arguments by the Petitioners :  

1. The President’s proclamation under Article 356 was void ab initio because a failure of state machinery report by the governor was not presented in front of the houses of the parliament. Secondly, the laws enacted after the proclamation cease to exist after 6 months of such proclamation under Article 250(2) of the constitution. 
2. The petitioners argued that “Constituent Assembly” cannot be interchanged with the term “Legislative Assembly” under Article 370(1)(d) as per CO 272. It was argued that CO 272 is a colourable exercise of the President’s power. The term to be interchanged was bought into action through Article 367 which is an interpretation clause. The petitioners contended that amending Article 370 through Article 367 is a backdoor amendment and should not be encouraged by the Hon’ble Court. 
3. The petitioners argued that the Constituent Assembly of Jammu and Kashmir was the sole authority to determine whether Article 370 ought to continue to exist. After its dissolution, no such determination could have been made as per Article 370(3) of the Constitution. Article 370(3) states that the President may with the approval and recommendation of the constituent assembly declare Article 370 cease to exist. 
4. For the matter of The Reorganization Act, the petitioners contended that Article 3 does not permit nor does it deal with the reorganization of a state into a Union Territory. Article 3 deals with the formation of new states and the alteration of areas and boundaries. 

Arguments by the Union of India : 

1. It was contended by UOI that it was open to the President to pass any constitutional orders under Article 370(1)(d) and that CO 272 and 273 is valid. 
2. The state argued that Article 370 was enacted in the constitution as a temporary provision and it was not meant to be in use for a longer period. Furthermore, they argued that Article 370 deprived the people of J&K of several fundamental and statutory rights without any legislative or parliamentary process. Therefore, such would not be the intent of the framers of the Constitution to deprive people of rights. 
3. They also contended that since the Constituent Assembly of J&K ceased to exist, the proviso under Article 370(3) to seek a recommendation from the Constituent assembly to inoperative Article 370 ceases to exist. The President has to exercise the power in the best interest of the citizens of the State. 
4. The state argued that Article 367 was used several times before to modify Article 370 in previous Constitutional Orders. 

Court’s Analysis : 

Judgement passed by Chief Justice D.Y Chandrachud, Justice B.R Gavai and Justice Surya Kant : 

1. The court analysed whether the state of Jammu and Kashmir has “internal sovereignty” : 

Internal Sovereignty refers to the absolute power of a state. The court held that all states in the country have legislative and executive powers on its own in different degrees. It was said that the State of J&K practices asymmetrical federalism which means that it enjoys a degree of autonomy compared to the other states. The court held that 

“As noticed by this Court in other segments of this judgment, the special circumstances in Jammu and Kashmir necessitated a special provision, that is, Article 370. Article 370 is an instance of asymmetric federalism.” 

The constitution of Jammu and Kashmir does not indicate that any element of sovereignty was retained by the state and if such sovereignty if exists, is not distinguishable from other states. In conclusion, the court held that he people of Jammu and Kashmir, therefore, do not exercise sovereignty in a manner which is distinct from how the people of other States exercise their sovereignty and there is no internal sovereignty. 

2. The court held that the constitutional validity of the Proclamation was not challenged by the petitioners : 

The court held that the petitioners did not challenge the Proclamation issued under Article 356 of the Constitution or Section 92 of the Constitution of J&K. This proclamation gave the governor’s rule and presidential rule to the state. The petitioners only challenged CO 272 and 273 by which Article 370 and the special constitutional status of Jammu and Kashmir were in effect repealed. 

The court also held that suspension of the State Government is a necessary consequence of issuing a proclamation under Article 356 of the Constitution.

3. The court dealt with the argument of whether Article 370 is a temporary provision : 

The court emphasized the aspect that every state in India has acceded to become the Dominion of India and constitute Bharat. In such accession, the State head gets into an agreement for a temporary period. 

Relying on that principle, the court held that Article 370 was introduced to serve two purposes. That is it is an arrangement for J&K to join the Union of India and to give special status during wartime. 

“First, an interim arrangement until the Constituent Assembly of the State was formed and could take a decision on the legislative competence of the Union on matters other than the ones stipulated in the IoA, and ratify the Constitution (the transitional purpose);  and second, an interim arrangement because of the special circumstances in the State because of the war conditions of the State (the temporary purpose).” 

The court also relied on constitutional debates during the time of making of the constitution and held that Article 370 was titled “Temporary provisions with respect to the State of Jammu and Kashmir” during the drafting of the constitution. The court while interpreting Article 370 further added that “ Any interpretation of Article 370 cannot postulate that the integration of Jammu and Kashmir with India was temporary”. 

4. Interpretation of Article 370(3)

Article 370(3) provides that the President may with the recommendation of the Constituent Assembly dissolve Article 370 out of existence. The question that arose was whether Article 370 assumed permanency after the dissolution of the constituent assembly.  

The court held that the dissolution of the constituent assembly of the state would not impact the power vesting upon the President under Clause 3. When the constituent assembly ceases to exist, the proviso requiring the assembly’s recommendation ceases to exist. 

5.The challenge to CO 272 : 

The petitioners argued that the President cannot pass an order other than the matters involved with the Instrument of Accession as specified in Article 370(1)(d) of the Constitution. It was challenged on the grounds that:

(a) It modifies Article 370, which can only be done on the exercise of power under Article 370(3);

(b) Only the State Government may accord “concurrence” to the President under the second proviso to Article 370(1)(d). 

The court held that the President has the right to modify Article 370 by passing any number of orders as the application of 370(1)(d) ceases to exist when there is no state concurrence in the first place. The failure of state machinery and the absence of a constituent assembly gives the vesting powers to the President automatically. 

 The court analysed that CO 272 purports to add Clause 4 to Article 367 (interpretation clause) and stipulates that the expression “constituent assembly’ be read as ‘legislative assembly’ in Article 370(3). The court held that the difference between constituent assembly and legislative assembly is not insignificant. They cannot be used as interchangeable terms. The powers and duties of both the assemblies have myriad differences. However, the court held that the modification was not done in a malafide intention. 

6. The challenge to CO 273 : 

CO 273 abrogated Article 370 of the constitution of India. Through Article 370(3) of the Constitution, the whole of Article 370 was bought to cease to exist. 

The court held that the order is not invalid because the effect of passing an order under Article 370(3) is that there is no constituent assembly in the first place. Therefore, the President has the full autonomy to declare Article 370 inoperative. The court further held that all provisions of the Consitution will be unilaterally applied to the State of Jammu and Kashmir. 

The court in its reasoning held that the Constitution of India prevails the Constitution of Jammu and Kashmir. After the abrogation of Article 370, the constitution of the State does not fulfil any purpose or serve any function. 

7.The challenge to the Reorganization Act : 

The Parliament enacted the Reorganisation Act 2019 in the exercise of the power under Article 3 and it was challenged that the reorganization into two union territories does not meet the pre-requisites of Article 3 of the Constitution. 

The court held that since the court has restored the statehood of Jammu and Kashmir, it is not an appropriate case to convert a state into union territories. 

“In an appropriate case, this Court must construe the scope of powers under Article 3 in light of the consequences highlighted above, the historical context for the creation of federating units, and its impact on the principles of federalism and representative democracy”.

It was held that the State would be restored to its statehood like any other state of India. Further, the court held that it does not find necessary cause to determine whether the reorganization is permissible under Article 3 or not. However, the court upheld the decision of the legislation to Carve out Ladakh as a union territory. 

The court then directed the Election Commission of India to conduct elections to the legislative assembly of J&K constituted under Section 14 of the Reorganisation Act by 30 September 2024 and held that restoration of statehood shall take place at the earliest and as soon as possible. 

Judgement passed by Justice S.K Kaul:

Justice S.K Kaul agreed to the majority opinion in the present matter. However, he held that modification of Article 370(3) using Article 367 and reading constituent assembly as the legislative assembly was a backdoor amendment. 

He quoted that “ what cannot be done directly, should not be done indirectly”. 

He further emphasised the need to be more humanitarian to the victims affected by human rights violations. He recommended setting up a truth and reconciliation commission and it would investigate on human rights violations since the 1980s. 

 Judgement passed by Justice Sanjay Khanna: 

Justice Sanjay Khanna agreed to the opinions of the majority bench and the view of Justice S.K Kaul. He commented on the Reorganization Act and held that the conversion of a state into union territories has grave consequences denies the citizen’s freedom and imposes federalism. 

“Conversion/creation of a Union Territory from a State has to be justified by giving very strong and cogent grounds. It must be in strict compliance with Article 3 of the Constitution of India.” 

Conclusion

The controversial Article 370 has come to a settlement after the Hon’ble Supreme Court’s verdict to uphold the government’s decision on 2019. It is pertinent to note that the State of Jammu and Kashmir will no longer have autonomy over its administration and the constitution of the same will be declared invalid. The state now is fully a part of the dominion of India. 

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Written by- Sanjana Ravichandran

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