IN RE: ARTICLE 370 OF THE CONSTITUTION versus .

Summary

The Constitution Bench upheld C.O. 273 making Article 370 inoperative and C.O. 272 insofar as it applied the entire Constitution to Jammu and Kashmir, but invalidated the substitution of the Legislative Assembly for the Constituent Assembly through Article 367. It upheld creation of Ladakh as a Union Territory, left open conversion of an entire State into Union Territories in view of the assurance to restore Jammu and Kashmir’s statehood, and directed Assembly elections by 30 September 2024.

Issues

1. Whether Article 370 became permanent upon dissolution of Jammu and Kashmir’s Constituent Assembly.
2. Whether C.O. 272 could amend Article 370 through Article 367 and apply the entire Constitution without State concurrence.
3. Whether C.O. 273 could independently make Article 370 inoperative.
4. What limits and judicial review govern exercise of State powers during President’s Rule.
5. Whether the reorganisation into Union Territories complied with Article 3.

Provisions considered

• Articles 1 and 370, Constitution of IndiaArticle 370 was temporary; the President’s power under clause (3) survived dissolution of the State Constituent Assembly. The three-judge lead opinion rejected a distinct internal sovereignty of Jammu and Kashmir. (¶¶ Chandrachud CJI, 87–170, Chandrachud CJI, 230–354, Chandrachud CJI, 514)
• Articles 370(1)(d) and 367, Constitution of IndiaThe modification power could not amend Article 370 indirectly through the interpretation clause. Applying the whole Constitution in this case was nevertheless valid and did not require State concurrence. (¶ Chandrachud CJI, 355–428)
• Article 370(3), Constitution of IndiaThe President could end the special arrangement after the Constituent Assembly ceased to exist. C.O. 273 remained valid independently of the invalid Article 367 substitution. (¶¶ Chandrachud CJI, 323–354, Chandrachud CJI, 429–465)
• Articles 356 and 357, Constitution of IndiaParliament could exercise non-legislative as well as legislative State powers. Presidential actions remain reviewable for mala fides or extraneous purposes under the reasonable-nexus standard. (¶ Chandrachud CJI, 175–229)
• Article 3 and Explanation I, Constitution of IndiaFormation of Ladakh from part of the State was upheld. Parliament could exercise the State Legislature’s consultative function during President’s Rule; conversion of an entire State into Union Territories was left open. (¶ Chandrachud CJI, 471–513)
• Sections 3 and 4, Jammu and Kashmir Reorganisation Act, 2019Creation of Ladakh was upheld; the broader conversion issue concerning Jammu and Kashmir was not decided in view of the Union’s assurance to restore statehood. (¶¶ Chandrachud CJI, 503–504, Chandrachud CJI, 514(n), Khanna J., 5–6)

Held

• Article 370’s temporary character was not lost upon dissolution of the State Constituent Assembly. Its recommendation proviso did not extinguish the President’s substantive power under Article 370(3); the President could thereafter make the Article inoperative. (¶¶ Chandrachud CJI, 230–354, Kaul J., 52–78, Khanna J., 7)
• The three-judge lead opinion held that Jammu and Kashmir did not retain internal sovereignty distinct from other States after accession and the subsequent constitutional arrangements. Kaul J. differed on the historical retention of an element of internal sovereignty, while agreeing that Article 370(3) enabled its termination and full constitutional integration. (¶¶ Chandrachud CJI, 87–170, Kaul J., 46–51, Kaul J., 67–78, Kaul J., 112(a)–(e))
• The President could not use Article 370(1)(d) to replace the Constituent Assembly with the Legislative Assembly in Article 370(3), by labelling the change an amendment to Article 367. The substance altered the constitutionally designated body and circumvented the prescribed mechanism. That part of C.O. 272 was invalid. (¶¶ Chandrachud CJI, 355–417, Kaul J., 79–91)
• Application of all provisions of the Constitution in one exercise was permissible. For this wholesale application, whose effect corresponded to exercise of Article 370(3), State concurrence was unnecessary. This conclusion did not dispense generally with concurrence for adjustments under Article 370(1)(d). (¶¶ Chandrachud CJI, 418–428, Kaul J., 92–94)
• C.O. 273 was independently supported by Article 370(3) and survived the invalid Article 367 amendment. No mala fides warranting invalidation were established. With the entire Constitution of India applicable, Jammu and Kashmir’s Constitution became inoperative. (¶ Chandrachud CJI, 429–470)
• Actions during President’s Rule are not invalid merely because they have irreversible consequences. Article 356(1)(b) includes non-legislative State powers, and Article 357 does not restrict that grant. A prima facie showing of mala fides or extraneous exercise shifts the burden to the Union to establish a reasonable nexus with the proclamation’s object. The lead opinion did not adjudicate the independent validity of the expired proclamations. (¶¶ Chandrachud CJI, 171–229, Khanna J., 4)
• Article 3 permitted separation of Ladakh as a Union Territory. Whether Parliament may convert an entire State into Union Territories was left open in view of the Union’s assurance to restore Jammu and Kashmir’s statehood. Parliament could discharge the State Legislature’s consultative function during President’s Rule; its views under the first proviso were recommendatory. (¶¶ Chandrachud CJI, 471–513, Khanna J., 5–6)
• The Election Commission was directed to take steps for Assembly elections by 30 September 2024, and restoration of statehood was directed at the earliest. Kaul J. separately recommended an impartial truth and reconciliation commission to investigate human-rights violations by State and non-State actors at least since the 1980s; this was a recommendation in his separate opinion. (¶¶ Chandrachud CJI, 504, Chandrachud CJI, 514(n), Kaul J., 120–125)

Result

Writ petitions and SLPs disposed of. C.O. 273 and application of the whole Constitution under C.O. 272 upheld; the Article 367 substitution invalidated. Creation of Ladakh upheld; entire-State conversion issue left open. Assembly elections directed by 30 September 2024 and Jammu and Kashmir’s statehood to be restored at the earliest.