In Re: Article 370 of Constitution | Supreme Court’s Latest Verdict on Article 370

The Supreme Court of India delivered a landmark verdict on 11 December 2023 in the matter of In Re: Article 370 of the Constitution. The five-judge Constitution Bench upheld the Union Government’s 2019 decision to abrogate Article 370, which granted special status and autonomy to the erstwhile State of Jammu and Kashmir (J&K). 

The Court also dealt with the constitutional intricacies surrounding this provision, the powers of the President under Articles 370 and 356, and the scope of Parliament’s authority during President’s Rule. While the Court refrained from commenting on the constitutionality of the Jammu & Kashmir Reorganisation Act, it issued important directions regarding restoration of statehood and the conduct of elections in J&K.

Background: Article 370 and Jammu & Kashmir’s Special Status

Article 370 was incorporated as a temporary provision in Part XXI (Temporary, Transitional and Special Provisions) of the Indian Constitution. It granted Jammu & Kashmir:

• Its own Constitution,
• Special autonomy over all matters except defence, foreign affairs, and communications,
• Powers to enact laws independently on many subjects,
• The right to maintain its own flag.

This special status originated from the Instrument of Accession signed by Maharaja Hari Singh in 1947 to accede to India under specific terms. The Constituent Assembly of Jammu & Kashmir was tasked with framing its Constitution and recommending modifications to Article 370.

The Abrogation Process of 2019

In August 2019, the Union Government issued two key Constitutional Orders:

• CO 272 (5 August 2019): Amended Article 367 (interpretation clause) to substitute “Constituent Assembly” with “Legislative Assembly” of J&K, allowing the President to extend provisions of the Indian Constitution to Jammu & Kashmir.
• CO 273 (6 August 2019): Exercised the President’s power under Article 370(3) to declare that all clauses of Article 370 shall cease to be operative.

Simultaneously, Parliament passed the Jammu & Kashmir Reorganisation Act, 2019, bifurcating the state into two Union Territories—Jammu & Kashmir (with a legislature) and Ladakh (without a legislature).

The Challenge and the Constitutional Questions

Petitions were filed challenging the abrogation on several grounds:

1. Permanency of Article 370: Petitioners argued that Article 370 became permanent once ratified by the Constituent Assembly of J&K and could not be abrogated after its dissolution in 1957.
2. Validity of Constitutional Orders 272 and 273: It was contended that CO 272 was unconstitutional as it amended Article 370 through Article 367 without following the proper amendment procedure under Article 368.
3. Requirement of State Government Concurrence: The challenge asserted that the President’s power under Article 370(1)(d) and (3) required the concurrence of the J&K government, which was absent.
4. Validity of Parliamentary Actions Under President’s Rule: Whether Parliament, under President’s Rule in J&K, had the power to pass the Reorganisation Act and whether the process was constitutional.

Composition of the Bench and Opinions

The Constitution Bench comprised five judges:

• Chief Justice D.Y. Chandrachud,
• Justices B.R. Gavai and Surya Kant (majority opinion),
• Justice S.K. Kaul (concurring opinion, with some differences),
• Justice Sanjiv Khanna (concurring in part).

Key Findings of Supreme Court in In Re: Article 370 of Constitution | Supreme Court’s Latest Verdict on Article 370

Article 370 Was a Temporary Provision

The Court held that Article 370 was always intended as a temporary and transitional provision. The Constitution itself placed Article 370 in Part XXI, which contains temporary provisions. The Constituent Assembly of Jammu & Kashmir had the power to recommend modifications or abrogation but was dissolved in 1957.

The Court emphasised that the phrase “recommendation of the Constituent Assembly” must be understood in its historical context and does not impose an absolute veto on the President’s powers. The President’s power under Article 370(3) to abrogate the article survives the dissolution of the Constituent Assembly.

No Separate Sovereignty of Jammu & Kashmir

Chief Justice Chandrachud rejected the argument that Jammu & Kashmir enjoyed a separate or special form of sovereignty different from other Indian states. The Court relied on:

• The 1949 Proclamation by Yuvraj Karan Singh, which applied the Indian Constitution fully to J&K, superseding earlier instruments inconsistent with it.
• The Constitution of J&K, which in Section 3 declares J&K an “integral part of the Union of India” and prohibits amendment of this provision.

The Court warned that recognising J&K’s sovereignty as unique would imply other states with special arrangements (such as Nagaland, Assam) might also enjoy sovereignty, unsettling the constitutional federal order.

Justice Kaul and Justice Khanna differed slightly, recognising limited “internal sovereignty” based on precedent but agreed it was not absolute.

Validity of the President’s Actions under Article 356 and Article 370

The Court referred to the landmark S.R. Bommai v. Union of India (1994) judgement to clarify the scope of President’s Rule under Article 356.

• Under President’s Rule, the President (Union Government) assumes the powers of the state legislature and executive.
• The President can take irreversible decisions, including dissolving the state assembly, to ensure proper administration.
• Judicial review of such actions is limited; petitioners must show mala fide or extraneous motives.

Thus, the Court upheld the President’s use of powers during the 2019 President’s Rule in Jammu & Kashmir.

Constitutional Orders 272 and 273

• CO 272: The Court held that the attempt to amend Article 370 by changing Article 367 was procedurally improper, as such amendments require the special procedure under Article 370(3), not general interpretation changes under Article 367.
• Nevertheless, the Court upheld the overall application of the entire Indian Constitution to Jammu & Kashmir under Article 370(1)(d), allowing the President to extend central laws subject to exceptions.
• CO 273: The President’s declaration that Article 370 ceased to operate was a policy decision and not subject to substantive judicial interference unless mala fide was shown, which the Court did not find.

Parliament’s Authority under President’s Rule and the Reorganisation Act

The Court observed that Parliament can exercise all legislative powers of the state during President’s Rule.

• The Union Parliament, standing in for the J&K legislature, approved the Reorganisation Act.
• Procedural objections about seeking the state legislature’s views were negated since the legislature did not exist, and the Union acted under Article 356.
• The Court left open substantive questions regarding whether the reorganisation extinguished J&K’s “character” as a state, relying on the Union’s assurance that statehood would be restored.
• Directions were issued for legislative assembly elections in Jammu & Kashmir by 30 September 2024 and restoration of statehood thereafter.

Justice Kaul’s Recommendations: Truth and Reconciliation Commission

Justice Kaul recommended setting up a Truth and Reconciliation Commission modeled on South Africa’s post-apartheid mechanism to address human rights violations in Jammu & Kashmir since the 1980s.

• The Commission should be time-bound and focus on restorative justice rather than criminal prosecution.
• It should provide a forum for victims and communities to share experiences and foster healing.
• Though beyond the Court’s direct jurisdiction, Justice Kaul highlighted this as an important step for transitional justice and social cohesion.

Conclusion

The Supreme Court’s verdict in In Re: Article 370 of the Constitution is a historic and complex judgement that settles many constitutional questions regarding Jammu & Kashmir’s special status. It balances judicial restraint with a reaffirmation of constitutional supremacy and national unity. The decision underscores the temporary nature of Article 370, endorses broad presidential powers during President’s Rule, and charts a course for the restoration of democratic governance in Jammu & Kashmir.