In Re: Article 370 of The Constitution (11/12/2023)

SUPREME COURT OF INDIA

[Writ Petition (Civil) No. 1099 of 2019]

BENCH: Five Judges

Date: December 11, 2023

Questions asked

The reference before the Constitution Bench raises the following questions for determination:

a. Whether the provisions of Article 370 were temporary in nature or whether they acquired a status of permanence in the Constitution;

b. 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;

c. 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);

d. 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);

e. 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;

f. 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;

g. 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:

i. 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

ii. 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;

h. 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.

JUDGMENT

Dr. Dhananjaya Y. Chandrachud, CJI

Table of Contents

CJI. [Dr. Dhananjaya Y. Chandrachud]

J. [B. R. Gavai]

J. [Surya Kant]

New Delhi;

December 11, 2023

References

In Re.: Article 370 of The Constitution

[Writ Petition (Civil) No. 1099 of 2019 and Other Connected Matters]

Sanjay Kishan Kaul, J.

In Re.: Article 370 of The Constitution

[Writ Petition (Civil) No. 1099 of 2019 and Other Connected Matters]

Sanjiv Khanna, J.

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