IN RE: ARTICLE 370 OF THE CONSTITUTION,
Case Title and Citation
IN RE: ARTICLE 370 OF THE CONSTITUTION (with connected matters)
Citation: 2023 INSC 1058 (11 December 2023)
Factual Background
Prior to 1947, the territory of Jammu and Kashmir (J&K) was ruled by Maharaja Hari Singh. In 1947, facing a military threat, the Maharaja signed the Instrument of Accession (IoA) to join the Dominion of India. Upon the adoption of the Constitution of India in 1950, J&K was included as a State, and the constitutional relationship was defined by Article 370. Article 370 provided special provisions, limiting the power of the Indian Parliament to make laws for J&K without the “consultation” or “concurrence” of the J&K State Government. Article 370(3) required the recommendation of the J&K Constituent Assembly to abolish the Article.
The J&K Constituent Assembly adopted the Constitution of J&K in 1957 and subsequently dissolved without recommending the removal of Article 370.
In 2018, President’s Rule was imposed in J&K under Article 356 of the Indian Constitution following the resignation of the Chief Minister and the dissolution of the Legislative Assembly. In August 2019, the President issued Constitutional Order (C.O.) 272, which attempted to apply all provisions of the Indian Constitution to J&K and altered Article 367 to replace the reference to the “Constituent Assembly” in Article 370(3) with the “Legislative Assembly”. Subsequently, the President issued C.O. 273, which abolished Article 370 on the recommendation of Parliament, acting in its capacity as the State Legislature during President’s Rule. Parliament then enacted the Jammu and Kashmir Reorganisation Act, 2019, dividing the State of J&K into two Union Territories (UTs): the UT of J&K and the UT of Ladakh.
The Petitioners challenged the constitutionality of these actions.
Issue(s)
- Whether the abolition of Article 370 (through C.O. 272 and C.O. 273) by the President and Parliament was constitutionally valid.
- Whether the State of Jammu and Kashmir retained any element of residual internal sovereignty upon its accession to India.
- Whether the conversion of the State of Jammu and Kashmir into two Union Territories under the J&K Reorganisation Act, 2019, was permissible under Article 3 of the Constitution.
Decision of the Supreme Court
The Supreme Court rejected the petitions and upheld the abolition of Article 370. The Court upheld the J&K Reorganisation Act, 2019, including the creation of the Union Territory of Ladakh.
The Court further directed the Election Commission of India to take necessary steps to conduct elections for the Legislative Assembly of the Union Territory of Jammu and Kashmir by September 30, 2024.
Reason for the decision
- Nature of Article 370: The Court held that Article 370 was deliberately placed in Part XXI of the Constitution, designated for “Temporary and Transitional Provisions,” and was always intended to be a temporary measure until the special circumstances in the State were resolved and integration was complete.
- Sovereignty of J&K: After signing the IoA in 1947 and issuing the Proclamation in 1949, the Maharaja surrendered sovereignty to India. The State of J&K, therefore, did not possess any unique “internal sovereignty” distinguishable from that enjoyed by other Indian States.
- President’s Power under Article 370(3): The power of the President to abolish Article 370 under clause (3) did not cease to exist after the dissolution of the J&K Constituent Assembly in 1957. The requirement for the Constituent Assembly’s “recommendation” was not binding on the President. The President retained the power to unilaterally issue a notification declaring Article 370 non-operative.
- Validity of C.O. 272: The Court deemed the specific mechanism used in C.O. 272—amending Article 367 to substitute the “Constituent Assembly” with the “Legislative Assembly”—as an unconstitutional indirect amendment of Article 370(3). However, the overall exercise of power by the President under Article 370(1)(d) to apply the entirety of the Indian Constitution to J&K was upheld as valid.
- Actions under President’s Rule: Actions taken by the Union during President’s Rule (Article 356), even if irreversible, are subject to judicial review only on grounds of mala fide or lack of reasonable nexus with the Proclamation’s objectives. The Court found that the President’s actions in issuing the Constitutional Orders were not mala fide.
- Reorganisation Act: The Act was upheld. Parliament could exercise the function of the State Legislature, including providing views required under the first proviso to Article 3, since the State was under President’s Rule. The conversion of a State into a Union Territory is generally a complex issue, but the creation of the UT of Ladakh was upheld as permissible under Article 3(a).
Conclusion
The Supreme Court upheld the constitutionality of the steps taken by the Union Government in 2019 to abrogate Article 370, viewing them as the culmination of the integration process begun with the accession of J&K to India. Consequently, the Constitution of Jammu and Kashmir was rendered inoperative and redundant. The Court recorded the commitment made by the Union that the statehood of Jammu and Kashmir would be restored at the earliest, and directed that Assembly elections be held by September 30, 2024.
Case Materials:
Day 1 of Arguments: 11 July 2023 (Argument Transcripts) | (Video Recording)
Day 2 of Arguments: 02 August 2023 (Argument Transcripts) | (Video Recording)
Day 3 of Arguments: 03 August 2023 (Argument Transcripts) | (Video Recording)
Day 4 of Arguments: 08 August 2023 (Argument Transcripts) | (Video Recording)
Day 5 of Arguments: 09 August 2023 (Argument Transcripts) | (Video Recording)
Day 6 of Arguments: 10 August 2023 (Argument Transcripts) | (Video Recording)
Day 7 of Arguments: 16 August 2023 (Argument Transcripts) | (Video Recording)
Day 8 of Arguments: 17 August 2023 (Argument Transcripts) | (Video Recording)
Day 9 of Arguments: 22 August 2023 (Argument Transcripts) | (Video Recording)
Day 10 of Arguments: 23 August 2023 (Argument Transcripts) | (Video Recording)
Day 11 of Arguments: 24 August 2023 (Argument Transcripts) | (Video Recording)
Day 12 of Arguments: 28 August 2023 (Argument Transcripts) | (Video Recording)
Day 13 of Arguments: 29 August 2023 (Argument Transcripts) | (Video Recording)
Day 14 of Arguments: 31 August 2023 (Argument Transcripts) | (Video Recording)
Day 15 of Arguments: 01 September 2023 (Argument Transcripts) | (Video Recording)
Day 16 of Arguments: 04 September 2023 (Argument Transcripts) | (Video Recording)
Day 17 of Arguments: 05 September 2023 (Argument Transcripts) | (Video Recording)
