Judgement Briefs

Constitutional Law

In Re: Article 370 of the Constitution

2023 INSC 1058

Citation
2023 INSC 1058
Court
Supreme Court of India
Date
11 December 2023
Bench
D.Y. Chandrachud C.J.; Sanjay Kishan Kaul; Sanjiv Khanna; B.R. Gavai; Surya Kant

Facts

  • Article 370 governed the special constitutional relationship between Jammu and Kashmir and the Union of India.
  • On 5 August 2019, while Jammu and Kashmir was under President’s Rule, the President issued Constitution Order 272.
  • The Order:
  • applied all provisions of the Constitution of India to Jammu and Kashmir; and
  • amended Article 367 so that references to the “Constituent Assembly” in Article 370 would effectively be read as references to the State “Legislative Assembly.”
  • Because the State Legislature had been dissolved, Parliament was exercising its functions during President’s Rule.
  • Parliament recommended that Article 370 be made inoperative.
  • Constitution Order 273 was then issued under Article 370(3), making Article 370 inoperative.
  • Parliament also enacted the Jammu and Kashmir Reorganisation Act, 2019, dividing the former State into:
  • the Union Territory of Jammu and Kashmir; and
  • the Union Territory of Ladakh.
  • The petitioners challenged the Presidential Orders, the use of President’s Rule and the territorial reorganisation before a five-judge Constitution Bench.

Issue

  • Whether Article 370 had become permanent after the Jammu and Kashmir Constituent Assembly ceased to exist.
  • Whether Jammu and Kashmir retained internal sovereignty distinct from other Indian States.
  • Whether the President could make Article 370 inoperative without the recommendation of the State Constituent Assembly.
  • Whether Parliament could act for the State Legislature during President’s Rule.
  • Whether the 2019 Reorganisation Act was constitutionally valid.

Rule

  • Article 370 was a transitional provision adopted because of special historical circumstances.
  • Jammu and Kashmir did not retain sovereignty after its constitutional integration with India.
  • Article 370 represented asymmetric federalism, not an agreement between two sovereign entities.
  • The President’s substantive power under Article 370(3) did not disappear merely because the Constituent Assembly ceased to exist.
  • Actions taken during President’s Rule remain open to judicial review, but Parliament may exercise the legislative powers of the State Legislature while the proclamation operates.
  • Article 367, an interpretation clause, cannot be used indirectly to alter the substantive procedure contained in Article 370.
  • Article 3 permits Parliament to form a Union Territory by separating territory from a State.

Application

  • The Court examined the Instrument of Accession, Article 1 and the Constitution of Jammu and Kashmir.
  • It concluded that Jammu and Kashmir was an integral part of India and had not retained a separate sovereign character.
  • The State Constitution itself recognised its permanent integration into the Union.
  • Article 370 was introduced to address temporary and transitional conditions, including war and the absence of a State Constituent Assembly when the Indian Constitution commenced.
  • The dissolution of the Constituent Assembly did not transform Article 370 into an unamendable permanent provision.
  • The Court found the amendment to Article 367 defective because the President could not substitute the Legislative Assembly for the Constituent Assembly through an interpretation provision.
  • That portion of Constitution Order 272 was declared invalid.
  • Nevertheless, the Court held that the President independently possessed power under Article 370(1)(d) to apply the entire Constitution to Jammu and Kashmir.
  • The validity of applying the Constitution therefore did not depend upon the invalid Article 367 substitution.
  • The President could also exercise power under Article 370(3) to make Article 370 inoperative.
  • Constitution Order 273 was consequently upheld.
  • Regarding reorganisation, the Court upheld the separation of Ladakh as a Union Territory.
  • It did not finally decide whether Parliament could permanently convert an entire State into Union Territories because the Union had undertaken to restore Jammu and Kashmir’s statehood.
  • It directed that Assembly elections be conducted by 30 September 2024 and that statehood be restored at the earliest possible time.

Conclusion

  • The five-judge Bench unanimously upheld the effective abrogation of Article 370.
  • Article 370 was transitional and had not become permanent.
  • Jammu and Kashmir possessed no internal sovereignty separate from the Constitution of India.
  • The Article 367 substitution was invalid, but:
  • the application of the entire Indian Constitution was valid; and
  • Constitution Order 273 making Article 370 inoperative was valid.
  • The creation of the Union Territory of Ladakh was upheld.