sT ROCKS COLLEGE OF LAW

Judgement Analysis of Article 370 of the Constitution

NAME – YASH THAKUR

Introduction

In the recent landmark Judgement passed by a 5 Judge Constitutional Bench of the Supreme

Court comprising of the Chief Justice of India (CJI) DY Chandrachud, Justice Sanjay Kishan

Kaul, Justice Sanjeev Khanna, Justice Bhushan R Gavai and Justice Surya Kant in the matter

of Writ Petition (Civil) No. 1099 of 2019 and a batch of other Petitions on 11.12.2023, the

Apex Court upheld the abrogation of Article 370 by the Centre and held the

Constitutional Order that revoked Article 370 as valid.

1) Article 370 in the Indian Constitution gave special status to Jammu and Kashmir (“J&K”),

a region disputed by India, Pakistan and China. It was drafted by N Gopalaswami Ayyangar, a

member of the Constituent Assembly of India, and was added to the Constitution as a

‘temporary provision’ in 1949.

2) This allowed the State to have its own Constitution, flag and autonomy in internal

administration over matters except defence, foreign affairs and communications.

3) This empowered the J&K Constituent Assembly which was elected in 1951 to formulate

the Constitution of J&K and to recommend the extent to which the Indian Constitution would

apply to J&K. The said recommendations had to be given to the President of J&K and then

the President, by issue of a Presidential Order would decide and adopt the provisions of the

Constitution of India in the Constitution of J&K.

1
 sT ROCKS COLLEGE OF LAW

4) Article 370 also stated that the Constituent Assembly could also abrogate the Article 370

altogether, in which case the entire Indian Constitution would apply to the State of J&K as it

does to the rest of the Country.

5) But in the year 1957, the Constituent Assembly of J&K was dissolved, therefore, making

the temporary provision, permanent as only the Constituent Assembly had the power to

abrogate Article 370 in J&K.

6) Thereafter, in the year 2019, J&K had a Presidential Rule that continued for few months.

The President issued Constitutional Orders 272 and 273 during the subsistence of a

Proclamation under Article 356(1)(b). These Orders had the effect of applying the entire

Constitution of India to the State of Jammu and Kashmir and abrogating Article 370.

Contemporaneously, Parliament enacted the Jammu and Kashmir Reorganisation Act 2019

which bifurcated the State into two Union territories. The “Constituent Assembly” became

the “Legislative Assembly” and the said Legislative Assembly was bound by the Indian

Parliament. At this point of time, by way of a Presidential Order dated 05.08.2019 Article 370

was abrogated.

7) This act of abrogation of Article 370 was challenged by the Petitioners as being

unconstitutional.

2
 sT ROCKS COLLEGE OF LAW

8) The Petitioners challenged that the Governor’s Proclamation under Section 92 of the

Constitution of Jammu and Kashmir dated 20 June 2018 as being void. The mandatory pre-

condition of the satisfaction of the Governor that the State government cannot be carried out

in accordance with the provisions of the Constitution, was not fulfilled. Further the

Petitioners stated that it was a political act, in violation of the Constitution, brought about

with the intention to ultimately abrogate Article 370.

9) The Petitioners contended that the Governor’s rule was imposed on 20 June 2019, a day

after the Bharatiya Janata Party withdrew from the coalition on 19 June 2019. There was no

opportunity given to the other Parties to demonstrate strength in the House. Other Parties like

the Congress, the PDP and the National Conference had, in a fax, to the Governor expressed

willingness to form a coalition. It was incumbent upon the Governor to reach out to the

Parties and explore the possibilities of forming a government.

10) Further the Petitioners contended that the manner in which the Union Government had

acted and the decisions of the Governor and the President were all political stratagems to

achieve outcomes that were unconstitutional.

11) The Apex Court, carefully framed the following issues on the contentions made by the

Petitioners.

3
 sT ROCKS COLLEGE OF LAW

Issues

i) “Whether the provisions of Article 370 were temporary in nature or whether they acquired

a status of permanence in the Constitution?

ii) Whether the amendment to Article 367 in exercise of the power under Article 370(1)(d) so

as to substitute the reference to the “Constituent Assembly of the State referred to in clause

(3) of Article 370 by the words “Legislative Assembly of the State” is constitutionally valid?

iii) Whether the entire Constitution of India could have been applied to the State of Jammu

and Kashmir in exercise of the power under Article 370(1)(d)?

iv) Whether the abrogation of Article 370 by the President in exercise of the power under

Article 370(3) is constitutionally invalid in the absence of a recommendation of the

Constituent Assembly of the State of Jammu and Kashmir as mandated by the proviso to

clause (3)?

v) Whether the proclamation of the Governor dated 20 June 2018 in exercise of power

conferred by Section 92 of the Constitution of Jammu and Kashmir and the subsequent

exercise of power on 21 November 2018, under Section 53(2) of the Constitution of Jammu

and Kashmir to dissolve the Legislative Assembly are constitutionally valid?

vi) Whether the Proclamation which was issued by the President under Article 356 of the

Constitution on 19 December 2018 and the subsequent extensions are constitutionally valid?

4
 sT ROCKS COLLEGE OF LAW

vii) Whether the Jammu and Kashmir Reorganisation Act 2019 by which the State of Jammu

and Kashmir was bifurcated into two Union Territories (Union Territory of Jammu and

Kashmir and Union Territory of Ladakh) is constitutionally valid bearing in mind?

a) The first proviso to Article 3 which requires that a Bill affecting the area, boundaries or

name of a State has to be referred to the legislature of the State for its views; and

b) The second proviso to Article 3 which requires the consent of the State legislature for

increasing or diminishing the area of the State of Jammu and Kashmir or altering the name of

boundary of the State before the introduction of the Bill in Parliament

viii) Whether during the tenure of a Proclamation under Article 356, and when the Legislative

Assembly of the State is either dissolved or is in suspended animation the status of the State

of Jammu and Kashmir as a State under Article 1(3)(a) of the Constitution and its conversion

into a Union Territory under Article 1(3)(b) constitutes a valid exercise of power?”

5
 sT ROCKS COLLEGE OF LAW

Analysis of The Apex Court

As the Judgement is running into 476 pages, we have dealt with a few of the issues. [i]

i) Whether the provisions of Article 370 were temporary in nature or whether they acquired a

status of permanence in the Constitution?

(1) The Supreme Court has noted the historical context in which the State of Jammu and

Kashmir had acceded to the Dominion of India to ascertain whether the State held an element

of sovereignty.

(2) There were several events leading up to the accession of Jammu and Kashmir. The Court

observed that “though the State of Jammu and Kashmir had acceded to the Dominion of

India, it reserved the right to alter the terms of the arrangement in view of Clause 7 of the IoA

read with Section 6(2) of the Government of India Act 1935 which was made applicable

through the India (Provisional Constitution) Order 1947. In terms of Clause 7 of the IoA, the

State of Jammu and Kashmir reserved the right to alter the terms of arrangement of power

between India and the State of Jammu and Kashmir. The Clause specifically reserves the right

of the State to “enter into agreement with the Government of India under any future

constitution.”

(3) In interpreting the provisions of Article 370 as they stood before abrogation, the Supreme

Court was of the view:

6
 sT ROCKS COLLEGE OF LAW

“While interpreting Article 370, regard must be had to the entire provision and its parts ought

not to be construed in a manner disconnected or disjointed from the meaning and scheme of

the provision in its entirety.”

(4) The Apex Court further held “that on 26 January 1950, when the Constitution was

adopted, the State of Jammu and Kashmir became an integral part of the territory of India.

The mandate of Article 1 is that “India that is Bharat shall be a Union of States”. The States

and their territories would be those specified in Parts A, B and C of the First Schedule. The

State of Jammu and Kashmir was a Part B State on the date of the adoption of the

Constitution. With the adoption of the Seventh Amendment to the Constitution which

obliterated the distinction between Parts A, B and C States, Jammu and Kashmir became a

State in the Union of States. In other words, Article 370 of the Constitution read together with

Article 1 leaves no manner of doubt that the integration of Jammu and Kashmir as a part of

the nation, which in itself was a Union of States was complete.”

ii) Whether the Proclamation which was issued by the President under Article 356 of the

Constitution on 19 December 2018 and the subsequent extensions are constitutionally valid?

And whether the Proclamation of the Governor dated 20 June 2018 in exercise of power

conferred by Section 92 of the Constitution of Jammu and Kashmir and the subsequent

exercise of power on 21 November 2018, under Section 53(2) of the Constitution of Jammu

and Kashmir to dissolve the Legislative Assembly are constitutionally valid?

7
 sT ROCKS COLLEGE OF LAW

(1) On 19 June 2018, Mehbooba Mufti resigned as Chief Minister after the Bharatiya Janata

Party withdrew from the alliance with the Jammu and Kashmir Peoples’ Democratic Party.

On the next day, the Governor of Jammu and Kashmir with the approval of the President

imposed Governor’s rule in the State of Jammu and Kashmir in exercise of power under

Section 92 of the Constitution of Jammu and Kashmir. The Proclamation issued under

Section 92 would cease to operate on the expiry of six months from the date on which it was

issued. Section 92 of the Constitution of Jammu and Kashmir, unlike Article 356 of the

Indian Constitution, does not permit the extension of the Proclamation beyond six months.

Thus, Governor’s rule would have come to an end on 19 December 2018. The President

issued a Proclamation under Article 356 on 19 December 2018. The Proclamation was

approved by the Lok Sabha on 28 December 2018 and the Rajya Sabha on 3 January 2019.

On 28 June 2019 and 1 July 2019, the Lok Sabha and Rajya Sabha extended President’s rule

for another six months.

(2) No challenge was mounted to the Proclamations under Section 92 of the Constitution of

Jammu and Kashmir until after the tenure of the Proclamation had ended. No challenge was

made to the Proclamation under Article 356 of the Constitution of India immediately after it

was issued.

(3) The power of the President under Article 356 to issue a Proclamation is of an exceptional

nature which has wide ramifications on the autonomy of the State and the federal framework

at large. Thus, laches in challenging the Proclamations cannot by itself be a valid ground to

8
 sT ROCKS COLLEGE OF LAW

reject a constitutional challenge to the Proclamations issued under Article 356 of the

Constitution and Section 92 of the Constitution of Jammu and Kashmir. However, the

Constitutional Bench thought that the challenge to the validity of the Proclamations did not

merit adjudication because:

(4) “The pleadings of the petitioners in the writ petitions indicate that their principal

challenge is to the abrogation of Article 370 and whether such an action could have been

taken during President’s rule. The challenge is to actions taken during the subsistence of

President’s rule and not independently to President’s rule by itself; and

(5) Even if this Court holds that the Proclamation could not have been issued under Article

356, there would be no material relief which can be given in view of the fact that it was

revoked on 31 October 2019. We are conscious that this Court in SR Bommai (supra) held

that status quo ante can be restored upon finding that the Proclamation is invalid and the

Court has the power to validate specific actions which were taken when the Proclamation was

in force. The Petitioners have assailed the specific actions which were taken when the

Proclamation was in force on the ground that these actions breach the constitutional

limitations on the exercise of power after a Proclamation under Article 356 is issued. These

substantive challenges which form the fulcrum of the case of the petitioners are being

considered in the section below.”

9
 sT ROCKS COLLEGE OF LAW

iii) Whether the Jammu and Kashmir Reorganisation Act 2019 by which the State of Jammu

and Kashmir was bifurcated into two Union Territories (Union Territory of Jammu and

Kashmir and Union Territory of Ladakh) is constitutionally valid bearing in mind?

(a) The first proviso to Article 3 which requires that a Bill affecting the area, boundaries or

name of a State has to be referred to the legislature of the State for its views; and

(b) The second proviso to Article 3 which requires the consent of the State legislature for

increasing or diminishing the area of the State of Jammu and Kashmir or altering the name of

boundary of the State before the introduction of the Bill in Parliament.

(1) The submission made by the Solicitor General that statehood would be restored of Jammu

and Kashmir, the Supreme Court did not find it necessary to determine whether the

reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and

Jammu and Kashmir was permissible under Article 3. The status of Ladakh as a Union

Territory was upheld because Article 3(a) read with Explanation I permits forming a Union

Territory by separation of a territory from any State. The Apex Court was aware of the

security concerns in the territory. Direct elections to the Legislative Assemblies which was

one of the paramount features of representative democracy in India cannot be put on hold

until statehood was restored. The Court directed that steps shall be taken by the Election

Commission of India to conduct elections to the Legislative Assembly of Jammu and

Kashmir constituted under Section 14 of the Reorganisation Act by 30 September 2024.

Restoration of statehood would take place at the earliest and as soon as possible.

10
 sT ROCKS COLLEGE OF LAW

(2) The first proviso to Article 3 stipulates that where the proposal contained in the Bill

affects the area, boundaries or name of any of the States, the President must refer the Bill to

the Legislature of that State for expressing their views. The President referred the

Reorganisation Bill to the Lok Sabha and the Rajya Sabha for their views since Parliament

exercised the “powers of the Legislature” of the State of Jammu and Kashmir in view of the

Proclamation issued under Article 356. On 5 August 2019, the Lok Sabha and Rajya Sabha

expressed the view in favour of the acceptance of the proposal in the Reorganisation Bill.

(3) If the views of the State Legislature were binding on Parliament (which is not the case),

there would be scope for debate on whether Parliament in exercise of powers under Article

356(1)(b) could have substituted its views for the views of the Legislative Assembly of the

State. However, the views of the Legislature of the State are not binding on Parliament in

terms of the first proviso to Article 3. The views of the Legislature of the State under the first

proviso to Article 3 are recommendatory to begin with. Thus, Parliament’s exercise of power

under the first proviso to Article 3 is valid and not mala fide.

11
 sT ROCKS COLLEGE OF LAW

Conclusion

In view of the above issues, the Supreme Court held that:

(1)- The State of Jammu and Kashmir does not retain any element of sovereignty after the

execution of the IoA and the issuance of the Proclamation dated 25 November 1949 by which

the Constitution of India was adopted. The State of Jammu and Kashmir does not have

‘internal sovereignty’ which is distinguishable from the powers and privileges enjoyed by

other States in the country. Article 370 was a feature of asymmetric federalism and not

sovereignty;

(2)- The Petitioners did not challenge the issuance of the Proclamations under Section 92 of

the Jammu and Kashmir Constitution and Article 356 of the Indian Constitution until the

special status of Jammu and Kashmir was abrogated. The challenge to the Proclamations did

not merit adjudication because the principal challenge was to the actions that were taken after

the Proclamation was issued;

(3)- The exercise of power by the President after the Proclamation under Article 356 was

issued was subject to judicial review. The exercise of power by the President must have a

reasonable nexus with the object of the Proclamation. The person challenging the exercise of

power must prima facie establish that it is a mala fide or extraneous exercise of power. Once

a prima facie case is made, the onus shifts to the Union to justify the exercise of such power;

12
 sT ROCKS COLLEGE OF LAW

(4)- The power of Parliament under Article 356(1)(b) to exercise the powers of the

Legislature of the State cannot be restricted to law-making power thereby excluding non-law

making power of the Legislature of the State. Such an interpretation would amount to reading

in a limitation into the provision contrary to the text of the Article;

(5)- It can be garnered from the historical context for the inclusion of Article 370 and the

placement of Article 370 in Part XXI of the Constitution that it is a temporary provision;

(6)- The power under Article 370(3) did not cease to exist upon the dissolution of the

Constituent Assembly of Jammu and Kashmir. When the Constituent Assembly was

dissolved, only the transitional power recognised in the proviso to Article 370(3) which

empowered the Constituent Assembly to make its recommendations ceased to exist. It did not

affect the power held by the President under Article 370(3);

(7)- Article 370 cannot be amended by exercise of power under Article 370(1)(d). Recourse

must have been taken to the procedure contemplated by Article 370(3) if Article 370 is to

cease to operate or is to be amended or modified in its application to the State of Jammu and

Kashmir. Paragraph 2 of CO 272 by which Article 370 was amended through Article 367 is

ultra vires Article 370(1)(d) because it modifies Article 370, in effect, without following the

procedure prescribed to modify Article 370. An interpretation clause cannot be used to bypass

the procedure laid down for amendment;

13
 sT ROCKS COLLEGE OF LAW

(8)- The exercise of power by the President under Article 370(1)(d) to issue CO 272 is not

mala fide. The President in exercise of power under Article 370(3) can unilaterally issue a

notification that Article 370 ceases to exist. The President did not have to secure the

concurrence of the Government of the State or Union Government acting on behalf of the

State Government under the second proviso to Article 370(1)(d) while applying all the

provisions of the Constitution to Jammu and Kashmir because such an exercise of power has

the same effect as an exercise of power under Article 370(3) for which the concurrence or

collaboration with the State Government was not required;

(9)- Paragraph 2 of CO 272 issued by the President in exercise of power under Article 370(1)

(d) applying all the provisions of the Constitution of India to the State of Jammu and Kashmir

is valid. Such an exercise of power is not mala fide merely because all the provisions were

applied together without following a piece-meal approach;

(10)- The President had the power to issue a notification declaring that Article 370(3) ceases

to operate without the recommendation of the Constituent Assembly. 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 under Article

370(3) is a culmination of the process of integration and as such is a valid exercise of power.

Thus, CO 273 is valid;

14
 sT ROCKS COLLEGE OF LAW

(11)- The Constitution of India is a complete code for constitutional governance. Following

the application of the Constitution of India in its entirety to the State of Jammu and Kashmir

by CO 273, the Constitution of the State of Jammu and Kashmir is inoperative and is

declared to have become redundant;

(12)- The views of the Legislature of the State under the first proviso to Article 3 were

recommendatory. Thus, Parliament’s exercise of power under the first proviso to Article 3

under the Proclamation was valid and not mala fide;

(13)- The Solicitor General stated that the statehood of Jammu and Kashmir will be restored

(except for the carving out of the Union Territory of Ladakh). In view of the statement we do

not find it necessary to determine whether the reorganisation of the State of Jammu and

Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under

Article 3. However, the Supreme Court uphold the validity of the decision to carve out the

Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits

forming a Union Territory by separation of a territory from any State; and

(14)- The Supreme Court directs that steps shall be taken by the Election Commission of

India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted

under Section 14 of the Reorganisation Act by 30 September 2024. Restoration of statehood

shall take place at the earliest and as soon as possible. The Writ Petition and special leave

petitions are disposed of in the above terms.”

15