Abrogation of Article 370 | Judgement Summary

Challenge to the Abrogation of Article 370

Judges: D.Y. Chandrachud CJI, S.K. Kaul J, Sanjiv Khanna J, B.R. Gavai J, Surya Kant J

On 11 December 2023, five senior-most judges of the Supreme Court upheld the Union government’s action to abrogate Article 370, which granted special status to Jammu and Kashmir (J&K). The Court further refused to comment on the constitutionality of the reorganisation of J&K state into two Union Territories: Jammu and Kashmir and Ladakh.

Chief Justice D.Y. Chandrachud on behalf of himself, Justices B.R. Gavai and Surya Kant, wrote 352 pages of the 476 page judgement. Justice S.K. Kaul wrote 121 pages and Justice Sanjiv Khanna wrote a concurring judgement of three pages.

Background

Article 370 of the Constitution of India provided the State of Jammu and Kashmir with a special constitutional status. The provision substantially limited Parliament’s power to legislate for the State compared to other states.

On August 5, 2019, the Union government diluted Article 370, revoking Jammu and Kashmir’s special status. First, President Ram Nath Kovind issued presidential order CO 272. This Order allowed the Union to amend Article 370 without the recommendation of the Constituent Assembly.

Since J&K was under President’s Rule at the time, the powers of the Jammu and Kashmir Legislative Assembly were vested in the Union Parliament. So, a few hours after CO 272 was issued, the Rajya Sabha recommended the abrogation of Article 370 through a Statutory Resolution under Article 370(3).

On August 6, 2019, President Kovind issued a Proclamation, CO 273, putting the Rajya Sabha’s recommendation into effect. All clauses of Article 370 ceased to operate, except Clause 1 which was amended to state that the Constitution of India applies wholly to the State, removing the special status awarded to Jammu and Kashmir.

On August 9, Parliament passed the Jammu and Kashmir Reorganisation Act, 2019. This Act bifurcated the State of Jammu and Kashmir into two Union Territories—J&K and Ladakh.

Petitions were filed challenging the constitutionality of the dilution of Article 370 and the bifurcation of the State into two Union Territories.

On August 28, 2019, a 3-Judge Bench led by former CJI Rajan Gogoi referred the case to a 5-Judge Constitution Bench.

On October 1, 2019, 5-Judge Constitution Bench of the Court comprising Justice N.V. RamanaS.K. KaulR. Subhash ReddyB.R. Gavai and Surya Kant decided to hear the case from November 14th, 2013. The petitioners sought the case to be placed before a larger Bench. On March 2nd, 2020, the Bench refused to refer it to a larger Bench.

On July 3, 2023, the Supreme Court listed the matter to a Constitution Bench led by Chief Justice D.Y. Chandrachud. The Bench assembled on July 11, 2023 and decided to hear the challenge from August 2, 2023.

Jammu and Kashmir did not retain sovereignty

CJI Chandrachud relied strongly on a proclamation by Yuvraj Karan Singh’s on 25 November 1949, the day before India’s Constitution was adopted. The proclamation stated that the provisions of the Indian Constitution would govern the relationship between the J&K and India. This, the Chief noted, negated two clauses of the Instrument of Accession (IoA). Paragraph 7 of the IoA stated that the IoA was not a symbol of acceptance of “any future Constitution of India” and Paragraph 8 stated that the IoA would not affect the sovereignty of the Maharaja. 

The Yuvraj’s proclamation said that “the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State.” 

Further, CJI Chandrachud wrote that there is much evidence in Article 370 and the J&K Constitution to show that a merger agreement was not necessary for Kashmir to surrender its sovereignty. Article 370(1) applied Article 1 of the Constitution (where J&K was listed as a Part III State) with no modifications. Section 3 of the J&K Constitution explicitly states that “the State of Jammu and Kashmir is and shall be an integral part of the Union of India.” Section 147 prohibited any amendments to Section 3, further making the provision absolute. Therefore, the Constitution of India, he said, “became the supreme governing document of the land.” Further, the Preamble to the J&K Constitution shows a “clear absence of…a reference to sovereignty.” 

The Chief also disagreed with the petitioners’ argument that the autonomy enjoyed by J&K was distinct from other states. In asymmetric federalism, one state may enjoy a greater degree of autonomy than another. This does not mean that it has a different kind of autonomy. He warned that if the Court held that J&K enjoys an elevated kind of sovereignty, it would mean that “other states which had special arrangements with the Union also possessed sovereignty.”

Justice Kaul differed on the question of sovereignty. He held that as per the Court’s decision in Prem Nath Kaul v Union of India (1959), J&K had retained some part of its sovereignty. Article 370, he said, recognised J&K’s internal sovereignty by recognising the Constituent Assembly of the state. 

Justice Khanna concurred with Justice Kaul’s reasoning. 

Article 370 is a temporary provision

First, the Chief relied on the fact that the Constitution framers placed Article 370 with the temporary and transitional provisions contained in Part XXI. Then, he pointed out that the IoA made it “abundantly clear” that Article 1 which stated that “India that is Bharat shall be a Union of States” applied in its entirety to J&K. When the Constitution was adopted on 26 January 1950, J&K was a Part B State. CJI Chandrachud wrote that with the introduction of the Seventh Schedule, the distinction between Part A, B and C states was obliterated, making J&K an integral part of India. 

Petitioners had also argued that Article 370 was only temporary while the Constituent Assembly of J&K existed. As the members chose to retain the provision, it transcended to permanency, with the only authority that could have abrogated it having dissolved. CJI Chandrachud held that the words “recommendation of the Constituent Assembly…shall be necessary” should be read with the historical context in mind, as it indicates that this was merely a “ratification process as decided by the Ministry of States.” The recommendation, he said, is not binding on the President. 

Further, the Chief held that the provision was introduced to “deal with the special circumstances in the State.” At the time of the dissolution of the Constituent Assembly, these special circumstances persisted, requiring the continuation of Article 370. 

The Chief Justice also held that the dissolution of the Constituent Assembly could not limit the powers of the President to abrogate Article 370. The President’s power, he explained, was only limited under Article 370(1), which meant that they could not “make radical changes to the provisions of the Constitution of India as it applies to Jammu and Kashmir.” If the President exercises his power under 370(3) to abrogate the provision, no such limitation under 370(1) would survive, all provisions of the Constitution of India would apply to J&K, and integration would be complete. “Holding that the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would lead to freezing of the integration contrary to the purpose of introducing the provision,” CJI Chandrachud wrote. 

Justice Kaul agreed, citing that “Article 370’s historical context, its text, and its subsequent practice” indicates its temporary nature. The President’s power can be exercised post-dissolution “in line with the aim of full integration of the State,” he wrote. 

Constitutional validity of proclamations under President’s Rule

CJI Chandrachud first clarified that the Court would not deal with the President’s powers to invoke President’s Rule under Article 356, as the core challenge pertained to “actions taken during the subsistence of President’s Rule and not independently to President’s Rule by itself.” He then dealt with the petitioners’ claim that the President cannot use their powers under Article 356 to “take irrevocable decisions” and “unsettle constitutional safeguards in favour of States.” 

First, the Chief Justice relied on Justice B.P. Jeevan Reddy’s decision in S.R. Bommai v Union of India (1994), where he held that when President’s Rule is imposed, it was a “necessary consequence” that the government is removed, to avoid simultaneous governance by the Union and state governments. The federal structure then becomes “diluted because the Union is empowered to take over the executive and legislative powers of the State.” Keeping in mind the intent of Article 356, which is to “restore the functioning of the constitutional machinery in the state,” actions taken by the President during the proclamation should be “geared” towards fulfilling this objective. CJI Chandrachud, wrote that “it will be too stringent an approach to suggest that every action of the President and Parliament must be necessary to further the objects of the proclamation.”

Further, the Chief stated that there are “hundreds if not thousands” of decisions that the President and Parliament must take, on behalf of the state legislature, to ensure effective day-to-day functioning in the state. Every such action, he held, cannot be open to judicial review, as it would “lead to chaos and uncertainty” and “put the administration in the State at a standstill.”

Any action taken in the exercise of this power, he said, can be repealed or modified by the state legislature after it resumes its functioning. Under Article 357(2) “federating units would have the power to reverse or modify the changes which were brought by the Union during the subsistence of the Proclamation.” 

Holding that judicial review is only applicable to actions taken after President’s Rule has been proclaimed, the Chief laid down a standard to assess the grounds for such review. First, the “exercise of power by the President under Article 356 must have a reasonable nexus to the object of the Proclamation.” Second, such an exercise of power will not be considered to be invalid “merely on the ground of ‘irreversibility’ of the actions.” Third, in the challenge to an action taken under President’s Rule, the onus lies on the petitioners to establish that a prima facie assessment of the case shows a “mala fide or extraneous exercise of power.” 

If a case of mala fide is made on a preliminary assessment, the onus then falls on the Union to prove that a reasonable nexus exists between the action taken and the goal of proclaiming President’s Rule. Finally, the President’s exercise of power for the day-to-day administration of the state is “not ordinarily subject to judicial review.”

Justice Kaul concurred, stating that the President has the power to make “irreversible changes, including the dissolution of the State Assembly.” He noted that the President’s powers are kept in check by “judicial and constitutional scrutiny.”

Does Parliament enjoy both law-making and non-law-making powers of the state legislature under President’s Rule?

Article 356(1)(a) states that the President may declare that the “powers of the Legislature of the State” shall be exercised by or under the authority of Parliament. Petitioners had suggested that there is a difference between “law-making and non-law-making powers” of the state legislature, arguing that only legislative and not constituent power is transferred to Parliament under President’s Rule. 

CJI D.Y. Chandrachud held that no such distinction exists under Article 356. He noted that interpreting the phrase “powers of the legislature” to allow Parliament to exercise all constitutional powers of the Legislative Assembly would limit the power of the state. “However,” he continued, “the Constitution recognises such reduction of federal power when the Proclamation under Article 356 is in force.” 

Is CO 272 of 2019 valid?

Next, the Chief considered the validity of the process by which Article 370 was abrogated. The Union abrogated the provision through two Constitutional Orders (COs) CO 272 and 273

In CO 272, the Union amended Article 367 (an interpretation clause) by replacing the words “Constituent Assembly” in the proviso to Article 370(3) with “Legislative Assembly.” The Union had asserted that this method was valid under Article 370(1)(d) which allows for provisions of the Indian Constitution to apply to J&K, subject to exceptions and modifications by the President.

This, the Chief held, was invalid and unconstitutional. The reason was twofold. First, an amendment to Article 370 could only be made under the process prescribed by Article 370(3) and not through an amendment to an interpretation clause of the Constitution. Second, the “concurrence” of the state government was a necessary component under Article 370(1)(d). 

Previously, in Maqbool Damnoo v State of Jammu & Kashmir (1972), a similar route was taken by the Union to replace the phrase “Sadar-i-Riyaasat” in Article 370 with the word “Governor” by amending Article 367. The majority held that it was not an amendment to Article 370 but rather a clarification to reflect the state of affairs at the time. Similarly in certain other COs where changes were made to Article 370 using the Article 367 route, they did not modify the essence of the Article in a “manner that is appreciable or significant.” Therefore, the Union could not use these examples to claim that CO 272 was valid. 

With CO 272, the Court said, it was clear that “while the change sought to be made by paragraph 2 of CO 272 may appear to be a modification or amendment of Article 367 at first blush, its effect is to amend Article 370 itself.” 

However, the Chief went on to hold that this did not render CO 272 as a whole as unconstitutional because the President had the power under Article 370(1)(d) to make “all or part of the Constitution” applicable to J&K. Petitioners had argued that 370(1)(d) “only contemplates a piece-meal approach” and that the entire Constitution can only be applied by exercising the power under Article 370(3), by abrogating Article 370. The Court held that applying all the provisions of the Constitution of India to J&K under 370(1)(d) had the “same effect” as declaring that Article 370 ceases to exist using the power under 370(3). 

Further, the consultation of the state government was not essential under 370(3) as the President had “unilateral” power to declare that Article 370 ceased to exist. In other words, the President was not mala fide in issuing CO 272. To show that it was mala fide, the Court said, “it is necessary to show that the power was exercised with an intent to deceive.” Deception can “only be proved if the power which is otherwise unavailable to the authority or body is exercised” or if the available power is “improperly exercised.” Since concurrence under 370(3) was not necessary in the first place to apply the whole Constitution to J&K, there was no improper exercise of powers when the President took the concurrence of the Union of India (on behalf of the State Government). 

Therefore, the Court held that CO 272 is valid to the extent that it applies all the provisions of the Constitution of India to J&K.

Justice Kaul, in his concurring opinion, agreed that it was not permissible to use the interpretation clause (Article 367) to amend Article 370. Therefore, he also held that paragraph 2 of CO 272 was invalid to the extent that it modified Article 367 to effectively amend Article 370. However, since the President had powers to apply the whole of the Constitution to J&K under Article 370(1)(d), the rest of CO 272 was valid and constitutional. 

CO 273 was not issued with malicious intent

In CO 273, the President exercising powers under Article 370(3) declared that “…all clauses of the said Article 370 shall cease to be operative….”

CJI Chandrachud wrote that while deciding if the power under 370(3) must be exercised, the President has to determine whether “the special circumstances which warranted a special solution in the form of Article 370 have ceased to exist.” This was a “policy decision which completely falls within the realm of the executive.” However, the Chief wrote that the President’s decision was subject to review if his intention was mala fide

The Chief found that the President’s intention was not mala fide. The reasoning he advanced was that the Union and the state have integrated “through a collaborative exercise” through a “slew” of Constitutional Orders since 1950. The President made the whole of the Indian Constitution applicable to J&K under Article 370(1)(d) to ensure its complete integration into India. 

The Constitution of J&K stands inoperative

The Bench held that the Constitution of J&K was always subordinate to the Constitution of India. The effect of CO 272 and 273, CJI Chandrachud wrote, was that the whole of the Constitution of India applied to J&K just as it did to other states and Union Territories. 

Under the Constitution of J&K, only certain provisions of the Indian Constitution applied to J&K. “The implicit but necessary consequence of the application of the Constitution of India in its entirety to the State of Jammu and Kashmir is that the Constitution of the State is inoperative,” the Chief wrote. 

Reorganisation of J&K: procedurally valid, substantive question left open

The J&K Reorganisation Act, 2019 was enacted by Parliament under Article 3 of the Constitution. During the hearing, the petitioners contended that the Act was unconstitutional for two main reasons. First, it was enacted without fulfilling the prerequisites of Article 3. Second, it changed the character of a state entirely by “reducing” it to two Union Territories. To determine the scope of Article 3, the Court delved into the history of states and union territories, the need for union territories and the reason for introducing Article 3.

The Chief wrote that states and “constituent units” at the time of independence mirrored the systems of bifurcations that existed during the British rule. Article 3, he said, was drafted to “subserve an arrangement in place until a reclassification which was suited to the needs of the local populace and which was based on a careful evaluation of administrative, cultural, linguistic, financial, and other relevant considerations rather than on the expediency of the colonial government.” 

Federalism which comprises two units of Union and state, he said, was part of the basic structure of the Indian Constitution. States are not dependent on the Union for their autonomy. However, Union Territories are not ‘viable administrative units’ and do not have the means to sustain on their own. They also do not have the degree of autonomy that states do. 

CJI Chandrachud discussed the difference between extinguishing a state and the character of a state. Under Article 3, new states can be formed by the separation of territory from any state, by uniting two or more states or parts of states, by uniting any territory to a part of any state or by increasing the area of any state, by diminishing the area of any state, altering the boundaries of any state, or altering the name of any state. However, an administrative unit could lose its “character” if it is converted to a Union Territory without retaining any part of its statehood. 

In the present matter, the majority held that there was no need to go into the question of whether or not J&K lost its “character” because of the reorganisation into two Union Territories. The judges relied on the submission of Solicitor General Tushar Mehta who had told the Court that J&K’s statehood would be restored in due time and this would not impact the Union Territory of Ladakh. Therefore, they left the question of determining the contours of Article 3 open to be determined in a different case where the question emerges. 

Justice Kaul agreed with the Chief’s reasoning. 

On the procedure under which the Reorganisation Act was introduced, the Bench held that under Article 3, the Union ought to have sent the proposal to the state legislature for their views. Since the Union Parliament had assumed the role of the state legislature of J&K at the time, the Union sought the views of both houses of Parliament which agreed with the Reorganisation Bill. The question to consider was whether the Union accepting its own views was valid. To answer this question, the Chief held that it was necessary to test if the Union was acting mala fide. As established before, there was no malicious intention on the part of the Parliament as its powers under Article 356 were not limited to law-making powers. It could give consent to the reorganisation of the state. 

Next, the second proviso to Article 3 provided that when it comes to altering J&K, the consent of the state legislature must be sought. However, with CO 272, the entire Constitution applied to J&K without exceptions and modifications. Thus, “the issue of whether the second proviso to Article 3 could have been suspended in the exercise of the power under Article 356(1)(c) no longer survives” the Chief held.

The Court directed that J&K’s statehood be restored as soon as possible. They also noted that the legislative assembly elections of J&K need not await the restoration of statehood, and issued a direction to conduct elections before 30 September 2024. 

Justice Kaul: Set up a truth and reconciliation commission to address human rights violations in J&K

In the concluding pages of his judgement, Justice Kaul penned an emotional epilogue. He recommended that the Union set up a “truth and reconciliation Commission” just like South Africa did in its post-apartheid era. “This Commission should be set up expediently before memory escapes. The exercise should be time-bound. There is already an entire generation of youth that has grown up with feelings of distrust and it is to them that we owe the greatest duty of reparation,” he wrote. 

He acknowledged that to ask the Union to set up the Commission was beyond the scope of the Court. However, he reasoned that transitional justice was a facet of transformative constitutionalism and “encompassed responsibility of both State and non-State actors concerning human rights violations.” The Court, he said, had previously taken steps in cases such as Vishaka v State of Rajasthan (1997) to provide flexible solutions to fundamental rights violations. 

He cautioned that the Commission must not turn into a criminal court. Rather, he recommended that the Commission “follow a humanised and personalised process enabling people to share what they have been through uninhibitedly.”