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

The judgment of Hon'ble Dr. Justice D.Y. Chandrachud, the Chief Justice, is scholarly and it elaborately annotates the complex legal issues. The judgment authored by Hon'ble Mr. Justice Sanjay Kishan Kaul pragmatically demystifies the factual and legal position.

advtanmoy 14/12/2023 6 minutes read

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

A.	Background ….						8
B.	Reference ………						14
C.	Submissions ……						17
	i.	Submissions of the petitioners…….					18
	ii.	Submissions of the Union of India …….					45
D.	Issues …..						59
E.	Analysis ……						61
	i.	The State of Jammu and Kashmir did not possess sovereignty ……					61
		a.		The meaning of sovereignty …..			62
		b.		The history of the Union of India and Jammu and Kashmir ….			66
		c.		Neither the constitutional setup nor any other factors indicate that the State of Jammu and Kashmir retained an element of sovereignty …..			94
	ii.	The Constitutional validity of the Proclamations issued under Article 356 of the Constitution of India and Section 92 of the Constitution of Jammu and Kashmir ……					112
	iii.	Limitations on the exercise of power by President or Parliament under Article 356 …..					115
		a.	Presidential Proclamation under Article 356 …..				116
		b.	Interpreting Article 356 in the aftermath of SR Bommai ….				120
		c.	SR Bommai on validity of exercise of power after the Proclamation …..				127
		d.	Interpretation of Part XVIII …..				134
			I.		Comparison of executive power held by the President under Articles 352 and 356 ……		135
			II.		Interpretation of Article 356 …..		139
			III.		The argument of ‘irrevocability’: Interpreting Article 357(2) and Krishna Kumar Singh …….		145
			Iv.		The distinction between legislative and constitutional functions of the Legislature ……		152
		e.	The standard to assess actions taken under Article 356 after the issuance of Proclamation …..				160
	iv.	Article 370: a temporary provision? …….					160
		a.	The historical context to Article 370 …….				160
			I.		Accession of Jammu and Kashmir ……..		161
			II.		The constitutional integration of Indian States …….		176
					a)	Internal Constitutions of States …..	176
					b)	Procedure for Indian States to ratify the Constitution ……	183
			III.		Debates in the Constituent Assembly on Article 370 ……		187
			IV.		Inference ……		194
		b.	Scope of provisions in Article 370 …..				198
			I.		Placement in Part XXI of the Constitution and Marginal Note to Article 370…		198
			II.		Interpretation of Article 370 …..		214
			III.		Inference …….		224
	v.	The effect of dissolution of the Constituent Assembly of Jammu and Kashmir on the scope of powers under Article 370(3) ….					226
		a.	The judgment in Sampath Prakash ……				228
		b.	The limited power of the Constituent Assembly under Article 370 …..				233
			I.		The structure of Article 370(1) and 370(2) …..		234
			II.		The structure of Article 370(3) ……		241
		c.	Inference …….				242
	vi.	The Challenge to CO 272 ……..					251
		a	Amendment of Article 370 through Article 370(1)(d) ……				251
			I.		The application of the Constitution to the State of Jammu and Kashmir		251
			II.		Paragraph 2 of CO 272 …..		256
			III.		The substance or effect of a provision is more important than its form		258
			IV.		The validity of modification of Article 367 ……		265
			V.		Previous Constitutional Orders which modified Article 367 …..		278
		b.	Applying the entire Constitution to Jammu and Kashmir through exercise of power under Article 370(1)(d) ….				288
		c.	Securing the concurrence of the Union Government under the second proviso to Article 370(1)(d) ….				290
	vii.	The Challenge to CO 273 ……					295
	viii.	The status of the Constitution of Jammu and Kashmir ….					318
	ix.	The challenge to the Reorganisation Act on substantive grounds ….					321
		a.	The constitutional history of States and Union territories and the reason for the existence of Article 3 …				323
		b.	The contours of the power under Article 3 ….				326
			I.		Federalism, representative democracy, and the significance of States		326
			II.		The reason for the creation of Union territories ……		330
			III.		The journey of Union territories: 1956 to 2023 …..		335
			IV.		The scope of Article 3 …….		337
	x.	The Challenge to the Reorganization Act on procedural grounds ….					343
		a.	Parliament’s exercise of power under the first proviso to Article 3 …..				343
		b.	Suspension of the second proviso to Article 3 as applicable to Jammu and Kashmir …..				347
F.	Conclusion ……. 348