IN RE- ARTICLE 370 OF THE CONSTITUTION v

Citation: [2023] 16 S.C.R. 1, 2023 INSC 1058, [2023] 16 S.C.R. 2

Court: Supreme Court of India

Bench: DR. DHANANJAYA Y CHANDRACHUD, CJI, SANJAY KISHAN KAUL, SANJIV KHANNA, B. R. GAVAI AND SURYA KANT, JJ.

Judgment text

SUPREME COURT OF INDIA [2023] 16 S. C. R. 1 : 2023 INSC 1058 CASE DETAILS IN RE: ARTICLE 370 OF THE CONSTITUTION (Writ Petition (Civil) No. 1099 of 2019) DECEMBER 11, 2023 [DR. DHANANJAYA Y CHANDRACHUD, CJI, SANJAY KISHAN KAUL, SANJIV KHANNA, B. R. GAVAI AND SURYA KANT, JJ. ] HEADNOTES Issues for consideration: Article 370 of the Constitution of India incorporated special arrangements for the governance of the State of Jammu and Kashmir. The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b) which orders had the eff ect of applying the entire Constitution of India to the State of Jammu and Kashmir and abrogating Article 370. Contemporaneously, the Parliament enacted the Jammu and Kashmir Reorganisation Act 2019 which bifurcated the State into two Union territories, namely, the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. The petitioners challenged the constitutionality of these actions.

CO 272 was issued under Article 370(1)(d) and sought to amend clause (3) of Article 370. The petitioners challenged CO 272 as being ultra vires Article 370(1)(d) on the grounds that: a. It modifi ed Article 370, which could only be done on exercise of power under Article 370(3); and b. Only the State Government may accord "concurrence" to the President under the second proviso to Article 370(1)(d). Further, the exercise of power under Article 370(3) in issuing CO 273 was challenged. The questions for determination were: a. Whether the provisions of Article 370 of the Constitution were temporary in nature or whether they acquired a status of permanence in the Constitution; b. Whether the amendment to Article 367 of the Constitution 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" was constitutionally valid; Ed.

Note: Hon'ble Dr. Dhananjaya Y Chandrachud, CJI pronounced the judgment of the Bench comprising His Lordship, Hon'ble Mr. Justice B R Gavai and Hon'ble Mr Justice Surya Kant, while Hon'ble Mr Justice Sanjay Kishan Kaul and Hon'ble Mr Justice Sanjiv Khanna pronounced their separate judgments. 1 2 SUPREME COURT REPORTS [2023] 16 S. C. R. 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) was 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 were 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 were 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) was constitutionally valid bearing in mind: (i) The fi rst proviso to Article 3 which requires that a Bill aff ecting 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. Federalism - Asymmetric federalism - Constitutional integration of Indian States - Accession of Jammu and Kashmir - Article 370 of the Constitution of India incorporated special arrangements for the governance of the State of Jammu and Kashmir - Whether the State of Jammu and Kashmir possessed sovereignty - Meaning of sovereignty.

IN RE: ARTICLE 370 OF THE CONSTITUTION 3 Held (per Dr. D. Y. Chandrachud, CJI) (for himself, B. R. Gavai and Surya Kant, JJ. ): The State of Jammu and Kashmir does not retain any element of sovereignty after the execution of the Instrument of Accession (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. [Para 514] - Held (per Sanjay Kishan Kaul, J. ): In light of the Supreme Court's prior fi nding in Prem Nath Kaul case, the State of Jammu and Kashmir retained an element of internal sovereignty despite Maharaja Hari Singh signing the IoA with the Dominion - Art. 370 of the Constitution recognized this internal sovereignty by recognizing the Constituent Assembly of the State.

[Para 112] - Held (per Sanjiv Khanna, J. ): The abrogation of Article 370 does not negate the federal structure, as the citizens living in Jammu and Kashmir do and will enjoy same status and rights as given to citizens residing in other parts of the country. [Para 2] Constitution of India - Art. 356 - Constitution of Jammu and Kashmir - s. 92 - Proclamations issued under Article 356 of the Constitution of India and s. 92 of the Constitution of Jammu and Kashmir - Constitutional validity of. Held (per Dr. D. Y. Chandrachud, CJI) (for himself, B. R. Gavai and Surya Kant, JJ. ): 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 does not merit adjudication because the principal challenge is to the actions which were taken after the Proclamation was issued.

[Para 514] Constitution of India - Art. 356 - Presidential Proclamation - Exercise of power by President or Parliament under Article 356 - Limitations on, if any - Standard to assess actions taken under Article 356 after issuance of Proclamation. Held (per Dr. D. Y. Chandrachud, CJI) (for himself, B. R. Gavai and Surya Kant, JJ. ): The exercise of power by the President after the Proclamation under Article 356 is issued is subject to judicial review - The 4 SUPREME COURT REPORTS [2023] 16 S. C. R.

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 fi de 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 - 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. [Para 514] - Held (per Sanjay Kishan Kaul, J. ) (Concurring with Dr. D. Y.

Chandrachud, CJI): President's rule can be imposed after the dissolution of the State Assembly since the Presidential emergency was predicated on the failure of the constitutional machinery, which took place prior to the Governor's rule and the dissolution of the Assembly by the Governor of Jammu & Kashmir was only a subsequent consequence - Once the Presidential proclamation has been approved by both Houses of Parliament, so as to refl ect the will of the people, the President has the power under Article 356 to make irreversible changes, including the dissolution of the State Assembly - The imposition of an emergency highlights an extraordinary situation and in the absence of the State Government and State Legislature, the power of these elected organs must lie with any other competent authority - Article 357 does not bar the President from exercising the non-legislative powers of the State Legislature, and Article 356(1)(b) allows the Union Parliament to exercise all powers of the State Legislature without distinguishing between legislative and non-legislative powers of the State Legislature - Therefore, the President is permitted to exercise both legislative and non-legislative functions of the State Legislature - However, a proclamation of emergency is bound by judicial and constitutional scrutiny to ensure the exercise of emergency powers is not unfettered and absolute.

[Para 112] - Sanjiv Khanna, J. concurring with Dr. D. Y. Chandrachud, CJI. Constitution of India - Art. 370 - Scope and interpretation of - Art. 370 incorporating special arrangements for governance of the State of Jammu and Kashmir, if a temporary provision - Historical context to the Article - Placement of Art. 370 in Part XXI of the Constitution - Eff ect of. IN RE: ARTICLE 370 OF THE CONSTITUTION 5 Held (per Dr. D. Y. Chandrachud, CJI) (for himself, B. R. Gavai and Surya Kant, JJ. ): 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. [Para 514] -Held (per Sanjay Kishan Kaul, J. ) (Concurring with Dr. D. Y. Chandrachud, CJI): A combination of factors, such as Article 370's historical context, its text, and its subsequent practice, indicate that Article 370 was intended to be a temporary provision. [Para 112] - Held (per Sanjiv Khanna, J.

) (Concurring with both Dr. D. Y. Chandrachud, CJI and Sanjay Kishan Kaul, J. ): Article 370 was enacted as a transitional provision and did not have permanent character. [Para 2] Constitution of India - Art. 370 - Eff ect of dissolution of the Constituent Assembly of Jammu and Kashmir on the scope of powers under Art. 370(3). Held (per Dr. D. Y. Chandrachud, CJI) (for himself, B. R. Gavai and Surya Kant, JJ. ): 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 aff ect the power held by the President under Article 370(3). [Para 514] - Held (per Sanjay Kishan Kaul, J. ) (Concurring with Dr. D. Y.

Chandrachud, CJI): Article 370(3) contained the mechanism to bring the temporary arrangement to an end, and in turn, to de-recognize the internal sovereignty of the State and apply the Constitution of India in toto - Since Article 370 is meant to be a temporary arrangement, it cannot be said that the mechanism under Article 370(3) came to an end after the State Constituent Assembly was dissolved - The power of the President under Article 370(3) was unaff ected by the dissolution of the Constituent Assembly of Jammu and Kashmir - The President could exercise their power anytime after the dissolution of the Constituent Assembly of Jammu and Kashmir, in line with the aim of full integration of the State. [Para 112] - Sanjiv Khanna, J. concurring with Sanjay Kishan Kaul, J. Constitution of India - Art. 370 - Amendment of Art. 370 through Art. 370(1)(d) - Application of the Constitution of India to the State 6 SUPREME COURT REPORTS [2023] 16 S. C. R.

of Jammu and Kashmir through exercise of power under Art. 370(1) (d) - Amendment to Article 367 of the Constitution 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" - Validity of modifi cation of Art. 367 - The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b) - These orders had the eff ect of applying the entire Constitution of India to the State of Jammu and Kashmir and abrogating Art. 370 - Challenge to the Constitutional Orders 272 and 273 (C. Os 272 and 273). Held (per Dr. D. Y. Chandrachud, CJI) (for himself, B. R. Gavai and Surya Kant, JJ.

): 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 modifi ed 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 modifi es Article 370, in eff ect, without following the procedure prescribed to modify Article 370 - An interpretation clause cannot be used to bypass the procedure laid down for amendment - However, the exercise of power by the President under Article 370(1)(d) to issue CO 272 is not mala fi de - The President in exercise of power under Article 370(3) can unilaterally issue a notifi cation 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 eff ect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the State Government was not required - 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 fi de merely because all the provisions were applied together without following a piece-meal approach - The President had the power to issue a notifi cation declaring IN RE: ARTICLE 370 OF THE CONSTITUTION 7 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 - 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.

[Para 514] - Held (per Sanjay Kishan Kaul, J. ) (Concurring with Dr. D. Y. Chandrachud, CJI): The power of the President under Article 370(3) was unaff ected by the dissolution of the Constituent Assembly of Jammu and Kashmir - The President could exercise their power anytime after the dissolution of the Constituent Assembly of Jammu and Kashmir, in line with the aim of full integration of the State - Hence, C. O. 273, which declares that Article 370 shall cease to operate except as provided, and was issued under Article 370(3), is valid - The power to issue C. O.

272 without the concurrence of the Government of the State is valid, as the power of the President is not limited by the concurrence of the Government of the State in this case - The power under Article 370(1)(d) read with Article 367 cannot be used to do indirectly, what cannot be done directly - The power to make modifi cations under Article 370(1)(d) cannot be used to amend Article 370 and Article 367, which is an interpretation clause, cannot be used to alter the character of a provision - Therefore, Paragraph 2 of C. O. 272, which amends Article 367(4) is ultra vires Article 370 - However, the President had the power to apply all provisions of the Constitution of India to Jammu and Kashmir under Article 370(1)(d), which is similar to the power under Article 370(3) - Therefore, the remainder of Paragraph 2 of C. O. 272 is valid. [Para 112] - Held (per Sanjiv Khanna, J. ) (Concurring with both Dr. D. Y. Chandrachud, CJI and Sanjay Kishan Kaul, J. ): Paragraph (2) of C. O.

272 by which Article 370 was amended by taking recourse to Article 367 is ultra vires and bad in law, albeit can be sustained in view of the corresponding power under Article 370(1)(d) - Most importantly, Article 370 has been made inoperative in terms of clause (3) to Article 370 - Lastly, C. O. 273 is valid. [Para 2] 8 SUPREME COURT REPORTS [2023] 16 S. C. R. Jammu and Kashmir Reorganisation Act 2019 - s. 14 - Parliament enacted the Jammu and Kashmir Reorganisation Act 2019 which bifurcated the State of Jammu and Kashmir into two Union territories, Union Territory of Jammu and Kashmir and Union Territory of Ladakh - Challenge to the Reorganisation Act on substantive grounds and on procedural grounds - Contours of the power under Art. 3 of the Constitution of India - Parliament's exercise of power under the fi rst proviso to Art. 3 - Suspension of the second proviso to Art. 3 as applicable to Jammu and Kashmir - Constitution of India - Art. 3. Held (per Dr. D. Y.

Chandrachud, CJI) (for himself, B. R. Gavai and Surya Kant, JJ.

): The views of the Legislature of the State under the fi rst proviso to Article 3 are recommendatory - Thus, Parliament's exercise of power under the fi rst proviso to Article 3 under the Proclamation was valid and not mala fi de - 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, it is not 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 validity of the decision to carve out the Union Territory of Ladakh is upheld in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State - Steps to be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under s.

14 of the Reorganisation Act by 30 September 2024 - Restoration of Statehood shall take place at the earliest and as soon as possible. [Para 514] - Held (per Sanjay Kishan Kaul, J. ) (Concurring with Dr. D. Y.

Chandrachud, CJI): The challenge to Section 4 of the Jammu and Kashmir Reorganization Act on the touchstone of Article 3 is not required to be debated on account of the assurance on behalf of the Government of India that the Statehood of Jammu & Kashmir would be restored on elections being held - It is imperative to ascertain the 'views' of the State Legislature under the fi rst proviso to Article 3 if the proposed Bill aff ects the area, boundaries or name of the State - However, in the instant case since the State of Jammu & Kashmir was under President's Rule and the State Legislature was already dissolved, the functions of the State Legislature were performed by the Union Parliament - Hence, it was not possible to ascertain the views of the State IN RE: ARTICLE 370 OF THE CONSTITUTION 9 Legislature - It follows that Section 3 of the Reorganization Act is valid. [Para 112] - Held (per Sanjiv Khanna, J. ) (Concurring with Dr. D. Y.

Chandrachud, CJI): Union Territories are normally geographically small territories, or may be created for aberrant reasons or causes - Conversion of a State into Union Territory has grave consequences, amongst others, it denies the citizens of the State an elected state government and impinges on federalism - Conversion/creation of a Union Territory from a State has to be justifi ed by giving very strong and cogent grounds - It must be in strict compliance with Article 3 of the Constitution of India. [Para 6] Human Rights - Jammu and Kashmir - Held Per Sanjay Kishan Kaul, J, Recommendation made by for setting up of an impartial truth and reconciliation Commission to investigate and report on violation of human rights both by State and non-State actors in Jammu & Kashmir at least since the 1980s and recommend measures for reconciliation. [Para 120] LIST OF CITATIONS AND OTHER REFERENCES In the judgment of Dr. D. Y. Chandrachud, CJI S. R. Bommai v.

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K Bamzai, Culture and Political History of Kashmir: Ancient Kashmir, vol. 1 (M. D. Publications Pvt. Ltd. , New Delhi 1994) 16; A. R. Nazki, 'In Search of Roots' in S. S. Toshkhani & K. Warikwoo (eds. ), Cultural Heritage of Kashmiri Pandits (Pentagon Press 2009) 145; Iqbal Chand Malhotra & Maroof Raza, Kashmir's Untold Story, (Bloomsbury India 2019) 1-2, 46, 80, 98, 100, 102-103; Walter R. Lawrence, The Valley of Kashmir (Oxford University Press 1895) 284, 296, 300, 302; Ramachandra Guha, India After Gandhi: The History of the World's Largest Democracy (Picador 2008) 44, 60, 63, 69, 248; Bipin Chandra, Mridula Mukherjee & Aditya Mukherjee, India After Independence 1947-2000 (Penguin Books 2007) 92, 93-94, 418-419; Rekha Chowdhary, 'Kashmir in the Indian Project of Nationalism' in Nyla Ali Khan (ed. ), The Parchment of Kashmir: History, Society and Polity (Palgrave Macmillan 2012) 154, 171-172; A. G. Noorani, The Kashmir Dispute 1947- 2012, vol.

2 (Tulika Books 2013) 44, 77-80, 401, 543; A. G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir (Oxford University Press, India 2014) 16-17, 48, 49, 50-78, 95, 111-113, 117-120, 217-223; V. P. Menon, The Story of the Integration of the Indian States (Orient Longmans Pvt. Ltd. 1956) 391; Durgaprasad (ed. ), The Rajatarangini of Kalhana, vol. 2 (1894) 408; Monier-Williams, Modern India and the Indians (3rd edn. , Trübner and Co. 1879) 151; A. R. Nazki, 'In Search of Roots' in S. S. IN RE: ARTICLE 370 OF THE CONSTITUTION 13 Toshkhani & K. Warikwoo (eds. ), Cultural Heritage of Kashmiri Pandits (Pentagon Press 2009)2; Anita Medhekar & Farooq Haq, 'Promoting Kashmir as an Abode of Peace Tourism Destination by India and Pakistan' in Alexandru-Mircea Nedelea & Marilena-Oana Nedelea, Marketing Peace for Social Transformation and Global Prosperity (IGI Global 2019) 34; Justice A. S. Anand, The Constitution of Jammu & Kashmir: Its Development & Comments (3rd edn.

, Universal Law Publishing Co. Pvt. Ltd. 1998) 41, 42, 44, 50, 51; David E. Lockwood, 'Kashmir: Sheikh Abdullah's Reinstatement' (1975) 31(6) The World Today, 250; Surinder Mohan, 'Democracy in Jammu and Kashmir 1947-2008' 2012 16(3) World Aff airs, 112-113, 104; P. N. K Bamzai, Culture and Political History of Kashmir: Modern Kashmir, vol. 3 (M. D. Publications Pvt. Ltd. , New Delhi 1994) 852; Black's Law Dictionary, (VI Edition, 1990); Constituent Assembly Debates, Vol. VII, Pg 34 and M. Klinkner and H. Davis, The Right to the Truth in International Law: Victim's Rights in Human Rights and International Criminal Law; A. Sachs, Strange Alchemy of Life and Law, 155 (OUP, 2009) and 4 RG Tietel, Transitional Justice and Transformation of Constitutionalism in Globalizing Transitional Justice, (OUP, 2014) - referred to. In the judgment of Sanjiv Khanna, J. S. R. Bommai and Others v. Union of India and Others. (1994) 3 SCC 1 : [1994] 2 SCR 644 and Rameshwar Prasad and Others (VI) v.

Union of India and Another (2006) 2 SCC 1 : [2006] 1 SCR 562 - referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES ORIGINAL WRIT/APPELLATE JURISDICTION: Writ Petition (Civil) No. 1099 of 2019. Under Article 32 of The Constitution of India In Re: Article 370 of The Constitution With Writ Petition (C) Nos. 871 of 2015, 722 of 2014, SLP (C) No. 19618 of 2017, Writ Petition (C) Nos. 1013, 1082, 1068, 1037, 1062, 1070, 1104, 1165, 1210, 1222 of 2019, 396, 756 of 2017, 398, 924, 1092, 1162 of 2018, 1048, 1268 and 1368 of 2019. Appearances: R Venkataramani, Attorney General for India, Tushar Mehta, Solicitor General, K M Nataraj, Vikramjit Banerjee, A. S. Gs. , D. C. Raina, Advocate General/Sr. Adv. , Shailesh Madiyal, A. A. G. , Muzaff ar. H. Baig, Ms. Nitya Ramakrishnan, Gopal Sankaranarayanan, Kapil Sibal, C U Singh, Shekhar Naphade, Prashanto Chandra Sen, Gopal Subramanium, Dr. Rajeev Dhavan, Dushyant Dave, Ravindra Kumar Raizada, Rakesh Dwivedi, Dr.

Menaka Guruswamy, Zafar A. Shah, Harish Salve, V. Giri, Mahesh Jethmalani, S Guru Krishna Kumar, Bimal Roy Jad, Vikram Sharma, Pranav Kohli, Dinesh Dwivedi, Ms. Nitya Ramakrishnan, P. V. Surendarnath, Sr. Advs. , Aftab Ali Khan, Murtaza. A. Khan, Ms. Safi na Baig, M. Z. Chaudhary, Ali Safeer Farooqi, S. Mansoori, Aakarsh Kamra, N. Sai Vinod, Prasanna S, Ms. Malavika Prasad, Shadan Farasat, Ms. Rupali Samuel, Archit Krishna, Vibhor Jain, M. V. Mukunda, Ms. Swati Arya, Yuvraj Singh Rathore, Dr. Aniruddha Rajput, Anirudh Sharma, Sridhar Potaraju, Pattabhiram, Nachiketa Joshi, Praneet Pranav, Yashraj Singh Bundela, Barun Kumar Sinha, Mrs. Pratibha Sinha, Rakesh Mudgal, Pankaj Kumar Shukla, Niraj Kumar, Sneh Vardhan, Rameshwar Prasad Goyal, Anil Kumar Jha, Binay Kumar Das, Vijayendra Misra, Ms. Y. K. S. Chauhan, Ms. Vijayalakshmi Jha, Ms. Priyanka Das, Ms. Jyothi Pathak Jha, Ms. Neha Das, Ravi Shankar Ravi, Sanjay Kumar Lal Das, Navin Jha, M. C.

Dhingra, Vikrant Yadav, Gaurav Dhingra, Ankur Prakash, Manish Vashishtha, Syed Imtiyaz Ali, Mrs. Kamakshi Mehlwal, Ashok Kumar, Mohnish Nirwan, Ms. Aparna Singh, Ms. Shivani Vij, Ms. Tanya Srivastava, Ms. Aditi Gupta, Ms. Trisha Chandran, Ms. Jhanvi Dubey, Ms. Ishita Chowdhury, Satyajit Sarna, Shrutanjaya Bhardwaj, Vikramaditya, Vishal Sinha, Ms. Charu Ambwani, Soayib Qureshi, D. Mahesh Babu, Shishir Pinaki, Muzaff ar Iqbal Khan, Dhanaeswar Gudapalli, Ms. Aparajita Jamwal, Nizam Pasha, Rishabh Parikh, Desam Sudhakara Reddy, Ms. Mallika Das, D. Siva Rami Reddy, K. Venkateshwara Prasad, Medi Yadaiah, Dr. Saif Mahmood, D. Abhinav Rao, Mayank Mikhail Mukherjee, Amjid Maqbool, Ms. Bidya Mohanty, Arjun Krishnan, Ankur Singh, Pratik Patnaik, Kaustav Som, Ms. Aishwarya Dash, Dr. Prashant Pratap, Ms. Farah Hashmi, Ms. Somya Yadava, Ms. Shruthi Parasa, Ms. Akshita Chhabra, Ms. Khyati Jain, Ranvir Singh, Gautam Bhatia, Ms. Malavika Prasad, Ms. Ujwala Uppaluri, Jayavardhan Singh, Ms.

Hima Lawrence, Pawan Bhushan, Lakshay Laroiya, Ms. Pritha IN RE: ARTICLE 370 OF THE CONSTITUTION 15 Srikumar, Sulabh Rewari, Aditya Chatterjee, Ms. Mansi Binjrajka, Binit Agrawal, P. V. Dinesh, Jaimon Andrews, Ms. Anna Oommen A, Prashant Bhushan, Ms. Ayushi, Akshat Malpani, Mohd. Irshad Hanif, Ms. Jyotika Kalra, Dr. Charu Wali Khanna, Joydeep Mukherjee, Ms. Annwesha Deb, Tripurari Ray, Balwant Singh Billowria, Anirudh Ray, Vivekanand Singh, Nithyananda Murthy P, Mrs. Bhanu Prabha, N Suresha, Dr. Nisha Kant Ojha, Rajinder Singh, Suresh Kumar Sharma, Atul Wadera, Ms. Shilpa Singh, Dileep Kumar Dubey, Rajeev Pandey, Surjeet Singh, Adarsh Upadhyaya, Sarthak Raizada, Pankaj Jamthani, Mukesh Kumar Verma, Anant Sangal, Shivam Singhania, Ms.

Divya Roy, Pallav Mongia, Vishnu Shankar Jain, Ashwini Kumar Upadhyay, Ashwani Kumar Dubey, Chandra Shekhar, Ajit Kumar Pathak, Eklavya Dwivedi, Utkarsh Pratap, Lavkesh Bhambhani, Harshwardhan Thakur, Vidur Dwivedi, Akashdeep Panday, Sazid Sr Shah, Amod Kumar Bhidurdi, Saquib Siddiqui, Mehmood Umar Faruqui, Shahbaaz Jameel, Ali Muzaff ar, Ms. Sarika Verma, Kausar Raza Faridi, Dharmendra Kumar Sinha, J. N. Shaheen, M. A. Ronga, Bashir Sadiq, Onkar Prasad, Sunil Prakash Sharma, Ajay Amitraj, Dr. Ritu Bhardwaj, Raju Sonkar, Ms. Baby Bonia, Abhimanue Shrestha, Kanu Agrawal, Rajat Nair, Ankur Talwar, Ms. Shraddha Deshmukh, Madhav Sinhal, Anandh Venkataramani, Mrs. Vijayalakshmi Venkataramani, Vinayak Mehrotra, Ms. Mansi Sood, Chitvan Singhal, Ms.

Sonali Jain, Abhishek Kumar Pandey, Raman Yadav, Kartikey Aggarwal, Pranatap Singh, Gaurang Bhushan, Aman Mehta, Arvind Kumar Sharma, Sanjay Kumar Tyagi, Ajit Yadav, Surjeet Singh, Sarthak Raizada, Alabhya Dhamija, Mithun Shashank, Sudipto Sircar, Ms. Divya Roy, Rahul G. Tanwani, Anantha Narayana M. G. , Manan Sanghai, Ms. Suveni Bhagat, Harshad Sundar, Ms. Vishwaja Rao, Rahul Narang, Prashant Singh, V. C. Shukla, Shubendu Anand, Ayush Anand, Ritvik Banot, Anant Sangal, Deepak Goel, Ms. Rao Vishwaja, Anantha Narayan, Vipin Kumar Sexana, Chaman Rana, Ms. Alka Goyal, Ms. Urvashi Sharma, Kumar Kartikay, Mukesh Verma, Vipin Kumar, Vibhu Shanker Mishra, Ms. Samta Pushkarna Mishra, Mani Shanker Mishra, Kamal Kumar Pandey, Jitendra Bharti, Ms. Baby Devi Bonia, Anil Kaushik, Ravi Sharma, Ms. Mugdha Pandey, Ajay Awasthi, Mrs. Aditi Tripathi, Ms. Kanika Singhal, Himadri Haksar, Santosh Kumar, Sayooj Mohandas M. , Bhaskar Gautham, Vishal Arun, Ms.

Serena Jethmalani, Yash Raj Singh Bundela, Amit Sharma, Rajan Kumar Chourasia, Vishnu Kant, Rajeev Ranjan, Pavan Kumar, Aviral 16 SUPREME COURT REPORTS [2023] 16 S. C. R. Saxena, Ms. Kavitha K T, Ashwin K, Gopal Jha, Tadimalla Bhaskar Gowtham, Siddharth Sinha, Rajesh K. Singh, Shyamal Kumar, Bitu Kumar Singh, Sunil Kumar Tomar, Ajay Kumar Pandey, Sandeep Singh, Dr. Brij Bhushan K. Jauhari, Ms. Riddhi Jad, O. P. Singh, Suresh Kumar Bhan, Kumar Ji Bhat, AK Kaul, N B Vishen, Harsh Mahan, Deepak Jyoti Ghildiyal, Ms. Purnima Jauhari, Ms. Archana Pathak Dave, Ms. Aditi Tripathi, Ms. Sindoora Vnl, Kumar Prashant, Parmod Kumar Vishnoi, Avnish Dave, Vaibhav Dwivedi, Ms. Riya Sethi, Aadhar Saha, V. K. Biju, Mrs. Ria Sachthey, Chetanya Singh, Abhay Pratap Singh, Aniruddha Purushotham, Shaji George, Mayank Pandey, Ms. Shalaka Srivastava, Dr. Ranjeet Bharti, Dr. Vivek Sharma, Mrs. Rubeena Jawed, Ms. Vijay Lakshmi, Mrs. Deepa Joseph, Vineet Kumar Singh, Sahil Tagotra, Prem Sadotra, Ms.

Abhivyakti Banerjee, Pashupathi Nath Razdan, Parth Awasthi, Ms. Maitreyee Jagat Joshi, Astik Gupta, Akshay Kumar, Vaibhav Sabharwal, Ms. Akanksha Tomar, Ritik Sharma, Eklavya Dwivedi, Ashwani Kumar Dubey, Rajesh Bhushan, Nitin Sangra, Ms. Shweta Singh Parihar, Dr. Charu Mathur, Siddharth Praveen Acharya, Ujjwal Mishra, Ms. Anisha Agarwal, Ravi Kant Purohit, Dharmendra Kumar Sinha, Onkar Prasad, Sunil Prakash Sharma, Ajay Amitraj, Dr. Ritu Bhardwaj, Raju Sonkar, J. N. Shaheen, M. A. Ronga, Bashir Sadiq, K. K. Mohan, Prateek Dwivedi, Nishant Singh, Prasanna S. , Ms. Malavika Prasad, Archit Krishna, Vibhor Jain, Ms. Rupali Samuel, Syed Iqbal Tahir, Ms. Swati Arya, Yuvraj Singh Rathore, Shaunak Dutta, Utkarsh Pratap, Lavkesh Bhambhani, Harshwardhan Thakur, Yash Tiwari, Shakti Kanta Pattanaik, Ms. Warisha Farasat, Shadan Farasat, Harshit Anand, Aman Naqvi, Prasana S, Ms. Hrishika Jain, Ms. Natasha Maheshwari, Ms. Mreganka Kukreja, Satyajeet Kumar, Ms. Taruna Ardhendumauli Prasad, Ms.

Adeeba Mujahid, Shailesh Madiyal, Mustafa Sajad, Siddharth Thakur, Mahesh Thakur, Ms. Keerti Jaya, Ranvijay Singh Chandel, Mrs. Geetanjali Bedi, Shivamm Sharrma, Ms. Anusha R. , Ms. Sanjivani Aggarwal, Ms. Jyoti Aggarwal, Pradeep Shekhavat, Ms. Filza Moonis, Ninad Dogra, Ashok Mathur, Anupam Raina, Sunando Raha, Nishant Kumar, Osheen Bhat, Abhimanyu Tewari, Apoorv Shukla, B. K. Satija, Prashant Rawat, P. S. Sudheer, Rishi Maheshwari, Bharat Sood, Ms. Anne Mathew, Ms. Miranda Solaman, K. V. Muthu Kumar, Talha Abdul Rahman, Ms. Manju Jetley, Omprakash Ajitsingh Parihar, Satya Mitra, Charanjeet Singh Chanderpal, Anil Kumar, Manoj K. Mishra, Ms. Rajshree Rai, Vinay Rai, J. K. Mishra, IN RE: ARTICLE 370 OF THE CONSTITUTION 17 Amrendra Kumar Singh, Umesh Dubey, Vaibhav Tiwari, Piyush Singh, Vishal, Ms. Madhulika, Harvinder Chowdhury, G. Sivabalamurugan, Vasantha Kumar A, Sanchit Vashisthe, Ms.

Nidhi Vashistha, Purnendu Bajpai, Mudit Chaudhry, Himanshu Nagarwal, Gaurav Kumar, Rohit Nagar, Deepak Chauhan, Ms. Ankita Goutham, Abinav Upadhyaya, Vikram Kumar Singh, Ms. Satamita Ghosh, Raghav Sabharwal, Ms. Tanvi Dubey, Anukrit Gupta, Sanjay Kumar Dubey, Varun Byreddy, Mekala Ganesh Kumar Reddy, Riju Raj Singh Jamwal, Ms. Madhusmita Bora, Ms. Resmitha R. Chandran, Subhash Chandran K. R. , Mukesh Kumar Pandey, Vipin Kumar Mishra, Sawan Kumar Shukla, K. Krishna Kumar, Soayib Qureshi, Ms. Disha Singh, Shivendu Gaur, Mrs. Nidhi Sharma, Mohit, R. K Kashyap, Sumit R. Sharma, Irshad Ahmad, Mohit Chaudhary, Advs. for the appearing parties. Petitioner-in-person Applicant-in-person Intervenor-in-person. JUDGMENT / ORDER OF THE SUPREME COURT 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 * Ed. Note: Pagination is as per the original judgment. 18 SUPREME COURT REPORTS [2023] 16 S. C. R. 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 IN RE: ARTICLE 370 OF THE CONSTITUTION 19 [DR DHANANJAYA Y CHANDRACHUD, CJI] 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 eff ect 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 20 SUPREME COURT REPORTS [2023] 16 S. C. R. II. Paragraph 2 of CO 272 ............................................... 256 III. The substance or eff ect of a provision is more important than its form ................................................................ 258 IV. The validity of modifi cation of Article 367 ................

265 V. Previous Constitutional Orders which modifi ed 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 signifi cance 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 IN RE: ARTICLE 370 OF THE CONSTITUTION 21 [DR DHANANJAYA Y CHANDRACHUD, CJI] a. Parliament's exercise of power under the fi rst proviso to Article 3 ........................................................................ 343 b. Suspension of the second proviso to Article 3 as applicable to Jammu and Kashmir ........................................................ 347 F. Conclusion .......................................................................... 348 1.

This judgment is enriched by the discussions with my distinguished colleagues - Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Bhushan R Gavai and Justice Surya Kant - during the course of oral arguments and thereafter. Their inputs to the judgment have led to a synthesis of thought resulting in a unanimous outcome. We record our deep appreciation for the scholarship of senior counsel during the course of arguments and in the written briefs, assisted by an able team of junior counsel. A*. Background 2. Article 370 of the Constitution of India incorporated special arrangements for the governance of the State of Jammu and Kashmir. The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b). These orders have the eff ect 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 20191 which bifurcated the State into two Union territories. The petitioners have challenged the constitutionality of these actions. 3. The State government in Jammu and Kashmir was formed by an alliance of the Peoples' Democratic Party2 with the Bharatiya Janata Party in 2015. The Chief Minister of the State, Ms Mehbooba Mufti, belonging to the PDP, resigned on 19 June 2018 after the Bharatiya Janata Party withdrew support. The next day, the Governor issued a Proclamation under Section 92 of the Constitution of Jammu and Kashmir, which entrusts power to the Governor to assume all the powers and functions of the Government of the * Ed. Note: PART A. 1 "Reorganisation Act" 2 "PDP" 22 SUPREME COURT REPORTS [2023] 16 S. C. R. State in the event of a failure of the constitutional machinery in the State. A Proclamation under Section 92 requires the concurrence of the President of India under clause (5).

Under clause (3) of Section 92, the Proclamation ceases to exist after six months. The promulgation of Governor's rule in the State was made with the concurrence of the President. On 21 November 2018, the Governor dissolved the Legislative Assembly of the State under Section 53(2) of the Constitution of Jammu and Kashmir. 4. On 28 November 2018, the Governor submitted a report to the President recommending the invocation of Article 356 of the Constitution since six months since the issuance of the Proclamation under Section 92(3) was to end. On 19 December 2018, the President issued a Proclamation under Article 356 promulgating President's rule in the State upon considering the report from the Governor of Jammu and Kashmir and other information. The Proclamation, inter alia, contained the following declarations: a.

The functions of the Government of the State and the powers vested in or exercisable by the Governor of that State under the Constitution of India and the State Constitution are assumed by the President; b. The powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; and c. The fi rst proviso and second provisos to Article 3 of the Constitution stand suspended. 5. The Proclamation was approved by the Lok Sabha on 28 December 2018 and by the Rajya Sabha on 3 January 2019. On the same day, the President issued another order stating that the functions of the Government of the State and the powers vested in the Governor which shall be exercisable by the President in view of the above Proclamation shall be exercisable also by the Governor subject to the superintendence, direction, and control of the President. 6. The extension of President's rule was approved by the Lok Sabha on 28 June 2019 and by the Rajya Sabha on 1 July 2019.

President's rule was extended on 3 July 2019. The duration of President's rule in terms of Article 356(4) in its application to the State of Jammu and Kashmir was IN RE: ARTICLE 370 OF THE CONSTITUTION 23 [DR DHANANJAYA Y CHANDRACHUD, CJI] six months after the second of the resolutions was passed by the Rajya Sabha on 3 July 2019. 7. On 5 August 2019, the President issued CO 272, the Constitution (Application to Jammu and Kashmir) Order 2019. By the CO, the President in exercise of powers under Article 370(1), applied: a. All the provisions of the Constitution of India by superseding all previous Constitution Orders by which select provisions of the Constitution were made applicable to Jammu and Kashmir either with or without modifi cations; and b. Article 367(4) in which a modifi cation was made, changing the term "Constituent Assembly" in the proviso to Article 370(3) to "Legislative Assembly. " 8.

On 5 August 2019, Parliament undertook the following exercise in its capacity as the legislature of the State, since the Proclamation under Article 356 was subsisting: a.

The Rajya Sabha recommended to the President under Article 370(3) that all clauses of Article 370 shall cease to operate: "That this House recommends the following public notifi cation to be issued by the President of India under Article 370 (3): ' In exercise of the powers conferred by Clause (3) of article 370 read with clause (1) of article 370 of the Constitution of India, the President, on the recommendation of the Parliament, is pleased to declare that, as from [*date*], all clauses of the said article 370 shall cease to be operative except clause (1) thereof which shall read as under, namely: "All provisions of this Constitution, as amended from time to time, without any modifi cations or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, bye-law, rule, 24 SUPREME COURT REPORTS [2023] 16 S.

C. R. regulation; notifi cation, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise. " b. Simultaneously, the Rajya Sabha expressed its views on the Jammu and Kashmir Reorganisation Bill 20193 which was sent to the House under the proviso to Article 3, in the following terms : "That the President of India has referred the Jammu and Kashmir Reorganisation Bill, 2019 to this House under the proviso to article 3 of the Constitution of India for its views as this House is vested with the powers of the State Legislature of Jammu and Kashmir, as per proclamation of the President of India dated 19 December, 2018. This House resolves to express the view to accept the Jammu and Kashmir Reorganisation Bill, 2019. " c.

Simultaneously, the Lok Sabha also accepted the Jammu and Kashmir Reorganisation Bill 2019 in terms of the following resolution: "That the President of India has referred the Jammu and Kashmir Reorganisation Bill, 2019 to this House under the proviso to article 3 of the Constitution of India for its views as this House is vested with the powers of the State Legislature of Jammu and Kashmir, as per proclamation of the President of India dated 19 December, 2018. This House resolves to express the view to accept the Jammu and Kashmir Reorganisation Bill 2019" d. The Rajya Sabha passed the Jammu and Kashmir Reorganisation Act 20194. 9. On 6 August 2019, Parliament discharged its functions as the legislature of the State of Jammu and Kashmir and proceeded with the following legislative business: 3 "Reorganisation Bill" 4 "Reorganisation Act" IN RE: ARTICLE 370 OF THE CONSTITUTION 25 [DR DHANANJAYA Y CHANDRACHUD, CJI] a.

The Lok Sabha recommended to the President under Article 370 (3) that the special provision in Article 370 shall cease to be operative and the provision would instead apply all the provisions of the Constitution to the State of Jammu and Kashmir without any modifi cations and exceptions: "That this House recommends the following public notifi cation to be issued by the President of India under Article 370(3): Declaration under Article 370(3) of the Constitution.

In exercise of the powers conferred by Clause (3) of article 370 read with clause (1) of article 370 of the Constitution of India, the President, on the recommendation of the Parliament, is pleased to declare that, as from the date on which the President of India signs the Declaration and published in the offi cial Gazette, all clauses of the said article 370 shall cease to be operative except clause (1) thereof which shall read as under; namely:- "All provisions of this Constitution; as amended from time to time, without any modifi cations or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, bye-law, rule, regulation; notifi cation, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.

" b. The Lok Sabha passed the Reorganisation Act. 10. Both Houses of Parliament passed the Reorganisation Bill (after expressing their views in favour of such an exercise as stipulated in the proviso to Article 3) bifurcating the State of Jammu and Kashmir into: a. the Union Territory of Jammu and Kashmir with the Legislative Assembly; and 26 SUPREME COURT REPORTS [2023] 16 S. C. R. b. the Union Territory of Ladakh without the Legislative Assembly. 11. The Appendix to the Reorganisation Bill contained a Schedule listing out central legislations enacted under the Union List and the Concurrent List by Parliament which would thereafter be applicable to the two Union Territories. Amendments have also been carried out to existing state legislations to bring them in conformity with the Constitution. 12.

On 6 August 2019, pursuant to the recommendation by the Lok Sabha, the President of India issued CO 273 under Article 370(3) of the Constitution as amended by CO 272 by which Article 370 ceased to apply with eff ect from 6 August 2019. On 9 August 2019, the Union Ministry of Home Aff airs issued a notifi cation, S. O. 2889 (E), in exercise of the powers conferred by Section 2(a) of the Reorganisation Act bringing the provisions of the Act into force with eff ect from 31 October 2019 following Presidential assent. Pursuant to this notifi cation, the State of Jammu and Kashmir stood bifurcated on 31 October 2019 into the Union Territory of Ladakh and the Union Territory of Jammu and Kashmir. President's rule was revoked. B*. Reference 13. On 19 August 2019, the jurisdiction of this Court was invoked under Article 32 of the Constitution in Dr Shah Faesal v. Union of India. 5 14.

When a batch of petitions challenging the constitutional validity of CO 272 and CO 273 came before a Constitution Bench, the petitioners sought a reference to a larger bench. The submission was that in Prem Nath Kaul v. State of Jammu & Kashmir,6a Constitution Bench had held that Article 370 was temporary in nature. According to counsel, subsequently in Sampat Prakash v. State of Jammu & Kashmir,7 another Constitution Bench held (without considering the earlier decision in Prem Nath Kaul (supra)) that Article 370 is not a temporary provision because: a. Neither the Constituent Assembly of Jammu and Kashmir nor the President had ever made a declaration that Article 370 ceased to be operative; and * Ed. Note: PART B. 5 Writ Petition (c) No. 1099 of 2019 6 1959 Suppl (2) SCR 270 7 (1969) 2 SCR 365 IN RE: ARTICLE 370 OF THE CONSTITUTION 27 [DR DHANANJAYA Y CHANDRACHUD, CJI] b.

In view of the proviso to Article 368 as it applied to Jammu and Kashmir, the President is required to exercise powers from time to time under Article 370 to bring into eff ect constitutional amendments made under Article 368 in the State of Jammu and Kashmir. 15. A reference to a larger Bench was also sought on the ground that the subsequent decision of the Constitution Bench in Mohd Maqbool Damnoo v. State of Jammu and Kashmir8 ignored the interpretation of Article 370 in Prem Nath Kaul (supra) and, in any event, the judgment does not decide whether Article 370 can continue to operate after the Constitution of Jammu and Kashmir was adopted. The Constitution Bench in Dr Shah Faesal (supra) framed three questions: "(i) When can a matter be referred to a larger Bench? (ii) Whether there is a requirement to refer the present matter to a larger Bench in view of the alleged contradictory views of this Court in Prem Nath Kaul case [Prem Nath Kaul v.

State of J&K, AIR 1959 SC 749] and Sampat Prakash case [Sampat Prakash v. State of J&K, AIR 1970 SC 1118] ? (iii) Whether Sampat Prakash case [Sampat Prakash v. State of J&K, AIR 1970 SC 1118] is per incuriam for not taking into consideration the decision of the Court in Prem Nath Kaul case [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] ? " 16. The Constitution Bench, while rejecting the plea for a reference to a larger Bench, adduced three reasons which emerge from the extract of the judgment set out below: "42. First, it is worth highlighting that judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning. The Court in Prem Nath Kaul case [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] had to determine the legislative competence of the Yuvaraj, in passing a particular enactment.

The enactment was passed during 8 (1972) 1 SCC 536 28 SUPREME COURT REPORTS [2023] 16 S. C. R. the interregnum period, before the formulation of the Constitution of State of Jammu and Kashmir, but after coming into force of the Constitution of India. The observations made by the Constitution Bench in this case, regarding the importance given to the decision of the Constituent Assembly of the State of Jammu and Kashmir needs to be read in the light of these facts" 43. Second, the framework of Article 370(2) of the Indian Constitution was such that any decision taken by the State Government, which was not an elected body but the Maharaja of the State acting on the advice of the Council of Ministers which was in offi ce by virtue of the Maharaja's proclamation dated 5-3-1948, prior to the sitting of the Constituent Assembly of the State, would have to be placed before the Constituent Assembly, for its decision as provided under Article 370(2) of the Constitution.

The rationale for the same is clear, as the task of the Constituent Assembly was to further clarify the scope and ambit of the constitutional relationship between the Union of India and the State of Jammu and Kashmir, on which the State Government as defi ned under Article 370 might have already taken some decisions, before the convening of the Constituent Assembly, which the Constituent Assembly in its wisdom, might ultimately not agree with. Hence, the Court in Prem Nath Kaul [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] indicated that the Constituent Assembly's decision under Article 370(2) was fi nal. This fi nality has to be read as being limited to those decisions taken by the State Government under Article 370 prior to the convening of the Constituent Assembly of the State, in line with the language of Article 370(2). 44. Third, the Constitution Bench in Prem Nath Kaul case [Prem Nath Kaul v.

State of J&K, AIR 1959 SC 749] did not discuss the continuation or cessation of the operation of Article 370 of the Constitution after the dissolution of the Constituent Assembly of the State. This was not an issue in question before the Court, unlike in Sampat Prakash case [Sampat Prakash v. State of J&K, AIR 1970 SC 1118] where the contention was specifi cally made before, and refuted by, the Court. This Court sees no reason to read into Prem IN RE: ARTICLE 370 OF THE CONSTITUTION 29 [DR DHANANJAYA Y CHANDRACHUD, CJI] Nath Kaul case [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] an interpretation which results in it being in confl ict with the subsequent judgments of this Court, particularly when an ordinary reading of the judgment does not result in such an interpretation. " C*. Submissions 17.

Mr Kapil Sibal, Dr Gopal Subramanium, Mr Zafar A Shah, Dr Rajeev Dhavan, Mr Dushyant Dave, Mr Shekar Naphade, Mr Dinesh Dwivedi, Mr CU Singh, Mr Sanjay Parikh, Mr PC Sen, Ms Nitya Ramakrishnan, Dr Menaka Guruswamy, Mr Muzaff ar H Baig, and Mr Gopal Sankaranarayanan appeared for the petitioners. Mr Manish Tiwari, and Mr Warisha Farasat also appeared for the petitioners. Mr Irfan Hafeez Lone and Dr Zahoor Ahmad Bhat were the parties in person. 18. Mr R Venkataramani, Attorney General, Mr Tushar Mehta, Solicitor General; Mr. Harish Salve, Mr Rakesh Dwivedi and Mr V Giri, Mr Mahesh Jethmalani, Mr Gurukrishna Kumar, Mr Ravindra Kumar Raizada, Mr Bimal Jod senior counsel; Mr KM Nataraj and Vikramjit Banerjee, Additional Solicitor Generals appeared on behalf of the respondents. Mr. Kanu Agrawal, Ms Archana Pathak Dave, Mr VK Biju, Mr Vikram Sharma, Dr Aniruddha Rajput, Mr DV Raina, Mr Rahul Tanwani, Mr Eklavya Dwivedi, Mr Rajesh Bhushan, and Dr Charu Mathur also appeared for the respondents.

i. Submissions of the petitioners 19. The Governor's Proclamation under Section 92 of the Constitution of Jammu and Kashmir dated 20 June 2018 is challenged 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 fulfi lled. 9 It was a political act, in violation of the Constitution, brought about with the intention to ultimately abrogate Article 370. 10 Governor's rule was imposed on 20 June 2018, a day after the Bharatiya Janata Party withdrew from the coalition on 19 June 2019. No opportunity was aff orded to the other parties to demonstrate strength in the * Ed. Note: PART C. 9 Written Submissions on Behalf of Mr. Kapil Sibal, Senior Advocate. 10 Written Submissions on Behalf of Mr. Kapil Sibal, Senior Advocate. 30 SUPREME COURT REPORTS [2023] 16 S. C. R. house.

Other parties - the Congress, the PDP and the National Conference - had, in a fax to the Governor expressed willingness to form a coalition. 11 It was incumbent upon the Governor to reach out to the parties and explore the possibilities of forming a government. 12 20. Section 92 of the Jammu and Kashmir Constitution envisages a mandatory maximum period of six months of Governor's rule, which cannot be extended any further. Successive imposition of the President's rule after Governor's rule defeats the scheme of Section 92 and amounts to a fraud on the Jammu and Kashmir Constitution and the Indian Constitution. 13 The manner in which the Union Government has acted and the decisions of the Governor and the President were all political stratagems to achieve outcomes that are unconstitutional. 14 21. The President's Proclamation under Article 356 dated 19th December 2018 is void ab initio for the following reasons: a.

After the Proclamation under Section 92, the Proclamation under Article 356 was issued by the President. This was also without basis as the report of the Governor showing the failure of constitutional machinery was not placed before Parliament15. The debates in the Lok Sabha and the Rajya Sabha show that the motion approving the Proclamation was passed without debate and without the Governor's report16; and b. A unilateral exercise of the powers under Article 356 sets a dangerous precedent and raises the apprehension that such a treatment can be extended to any other state of the country in the exercise of emergency powers under the Constitution. It renders the federal structure susceptible to the whims of the political party in power. It can also be used to undermine the 11 Written Submissions of Dr. Rajeev Dhavan, Senior Advocate. 12 Written Submissions on behalf of Mr. Kapil Sibal, Senior Advocate. 13 Submissions By Dr. Rajeev Dhavan, Senior Advocate. ; Rejoinder on behalf Of Mr.

Kapil Sibal Sr. Advocate. 14 Rejoinder on behalf of Mr. Kapil Sibal Sr. Advocate. 15 Written Submissions of Mr. Dushyant Dave, Senior Advocate; S. R. Bommai vs Union of India (1994) 3 SCC 1. 16 Submissions By Dr. Rajeev Dhavan, Senior Advocate. IN RE: ARTICLE 370 OF THE CONSTITUTION 31 [DR DHANANJAYA Y CHANDRACHUD, CJI] special provisions under the Constitution designated for the special interests of the North-Eastern States of India. 17 22. The impugned actions taken when the Proclamation issued under Article 356 was in force are void. There are limits on the exercise of power by the President after the issuance of a Proclamation for the following reasons: a. Once the Legislative Assembly of the State is dissolved, as was the case in the state, after the Proclamation of Governor's rule, there was no occasion for the President to exercise the power under Article 356.

This renders the Proclamation dated 19 December 2018 and all consequential actions - the impugned COs and suspension of the second proviso to Article 3 applicable to the State of Jammu and Kashmir void ab initio18; b. The purpose of Article 356 is to restore governance in the State. 19 Article 356 is housed in Part XVIII of the Constitution of Indiawhich deals with 'Emergency provisions'. The President must be satisfi ed that the government cannot be carried out in accordance with "this Constitution". The emphasis on "this" indicates the nature of the power. The object of the exercise is to ensure that constitutional government is possible in the state20; c. Article 357(2) stipulates that the laws made by the President or the Parliament, in the exercise of the power of the state legislature, shall continue, after the Proclamation has ceased to operate, until altered or repealed or amended "by a competent Legislature or other authority.

" These words presume the power 17 Written Submissions on behalf of Impleader by Manish Tewari & Mr. Abhimanyu Tewari, Advocate. 18 Thiru K. N. Rajagopal v. Thiru M. Karunanidhi, (1972) 4 SCC 733 [5 Judges], Submissions on Behalf of The Petitioners, Mr Shekhar Naphade, Senior Advocate; Written Submissions By Sh. Sanjay Parikh, Senior Advocate; Written Submissions of Gopal Sankaranarayanan, Senior Advocate on Behalf of the Petitioner; Rejoinder on behalf of Mr. Kapil Sibal Sr. Advocate. 19 SR Bommai (Paras 108,113, 288, 289), 20 Outline of Submissions on Behalf of the Petitioners by Raju Ramachandran, Senior Advocate. 32 SUPREME COURT REPORTS [2023] 16 S. C. R. of the restored legislature to alter or undo the changes made by the Union in respect of the State's aff airs. Article 357(2) allows the subsequent State Legislature to alter or repeal any laws made by the Parliament in the exercise of such powers.

Thus, the Parliament cannot make irreversible changes in the exercise of this temporary power during the Proclamation under Article 356. 21 Dr. BR Ambedkar clarifi ed that the purpose of the power under Articles 356 and 357 was to ensure that the "form of constitution" was maintained22; d. Article 250(2)states that laws shall cease to have eff ect after six months from the date when the Proclamation ceases to operate23. Considering the restorative purpose and the temporary nature of the power, the President could not have, in the exercise of this power eff ected a permanent change to the Constitution by way of the impugned actions; e. In accordance with Article 356(1),the power of the Legislature and the Executive of the State are transferred to the Parliament and the President respectively. However, Article 356 does not envisage a transfer of the constituent power to the President or to Parliament.

Constituent power cannot be transferred unless the Constitution of Jammu and Kashmir specifi cally provides for it. The President does not acquire the power of the State Government under Article 370(1)(d), to give concurrence, and Parliament does not acquire the constituent powers of the Legislative Assembly to recommend a Presidential notifi cation under Article 370(3)24; 21 Written Submissions of Dr. Rajeev Dhavan, Senior Counsel; Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner; Written Submissions on Behalf of The Intervenor By Dr. Menaka Guruswamy, Senior Advocate; Written Submissions of Ms. Nitya Ramakrishnan, Senior Advocate on behalf of Intervenors; 22 Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner. 23 Outline of Submissions on Behalf of the Petitioners by Raju Ramachandran, Senior Advocate.

24 Outline of Submissions on Behalf of the Petitioners by Raju Ramachandran, Senior Advocate; Synopsis and Written Submissions/ Arguments. IN RE: ARTICLE 370 OF THE CONSTITUTION 33 [DR DHANANJAYA Y CHANDRACHUD, CJI] f. This Court in Krishna Kumar Singh v. State of Bihar25has held that the President's ordinance-making power cannot be treated as a constitutional equivalent of ordinary legislative power, notwithstanding a deeming provision which confers the same force and eff ect on it. Similarly, the functions of the Union executive or legislature cannot be treated as constitutional equivalents of the powers of the state executive or legislature, due to a "democratic defi cit"26; and g. Articles 75 and 164 of the Constitution stipulate that the Council of Ministers is collectively responsible to the Legislature. The State Legislature is vested with certain non-legislative functions such as questions and debates.

Such non-legislative functions vested in the State Legislature cannot be exercised by Parliament during President's rule27. 23. The will of the people finds no expression in the purported concurrence of the State Government, essentially the Governor, since there was no Council of Ministers in place. Thus, the COs are undemocratic for want of public will and public reason. 28 24. Article 370 must be interpreted keeping in mind the following principles: a.

Article 370 envisages three modes of cooperation between the Union and the State of Jammu and Kashmir: the lowest degree is under the fi rst proviso to Article 370(1)(d) where only consultation with the State Government is required; the second degree is under Article 370(1)(b)(ii) and the second proviso to Article 370(1)(d), where consent of the Government of the State is required; and the highest degree is under Article 370(3) where the recommendation of the Constituent Assembly of Jammu and Kashmir is required29; 25 (2017) 3 SCC 1 26 Written Submissions by Mr Gopal Subramanium, Senior Advocate. 27 Written Submissions of Dr. Rajeev Dhavan, Senior Advocate. 28 Outline of Submissions on Behalf of The Petitioners by Muzaff ar H. Baig, Senior Advocate; Rejoinder on behalf of Mr. Kapil Sibal Sr. Advocate. 29 Written Submissions on Behalf of Mr. Kapil Sibal. 34 SUPREME COURT REPORTS [2023] 16 S. C. R. b.

Article 370 must be interpreted in the context of three pillars namely- asymmetric federalism30, autonomy, and consent. 31 Asymmetrical federalism, that is diff erential rights to certain federal sub-units is a part of the Indian federal scheme. It is a part of the basic structure, as is federalism32; c. Article 370 refl ects the agreement between two contracting parties namely the acceding State of Jammu and Kashmir and the Dominion of India, under which the Constituent Assembly of Jammu and Kashmir was given the power to fi nally determine the state's affi liation to the Union and its limits. Once this relationship was crystallised by the Constitution of the State, there was no scope of change, since the Constituent Assembly, solely empowered to change the relationship, ceased to exist33; and d.

Article 370 recognized the constituent power of the people of the State of Jammu and Kashmir articulated through the Constituent Assembly of Jammu and Kashmir or otherwise, to make or remake the Constitution of the state, subject to Article 1 of the Constitution of India. 34 25. The marginal note to Article 370 and the placement of the provision in Part XXI of the Constitution cannot be used to hold that the provision is temporary for the following reasons: a. Since the Maharaja or his successors did not sign a merger agreement with the Union of India, the State retained residual sovereignty and Article 370 was incorporated in the Indian Constitution as a recognition of the same. 35 The reason for 30 Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade. 31 Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner. 32 Submissions on behalf of the petitioners by Senior Advocate Prashanto Chandra Sen.

33 Outline Of Submissions on Behalf Of The Petitioners By Muzaff ar H. Baig, Senior Advocate. 34 Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner. 35 Submissions by Mr Zaff ar Shah, Senior Advocate. IN RE: ARTICLE 370 OF THE CONSTITUTION 35 [DR DHANANJAYA Y CHANDRACHUD, CJI] placing Article 370 in Part XXI of the Constitution of India was that the Constituent Assembly of India assumed that as and when the Constituent Assembly of the State will be established, it would recommend the abrogation of Article 370, and thereby fully integrate the state into the Union. It cannot be said that by reason of being placed in Chapter XXI of the Constitution of India, Article 370 could have been abrogated at any time by the President. This is apparent also from the fact that the provision was kept out of the purview of Article 368 of the Constitution, and a mechanism for its abrogation was provided in Article 370(3).

36 Thus, it was temporary only insofar as the Constituent Assembly was not in place at the time of its incorporation into the Indian Constitution. It was a permanent provision of the Indian Constitution notwithstanding its placement in Chapter XXI of the Constitution and the state was to be governed by two Constitutions37; and b. The word 'temporary' in the marginal note, does not refer to the limited duration of time, after which the Article would cease to exist. It implies that unless the specifi c conditions of its repeal, that is, convening of the Constituent Assembly of the State of Jammu and Kashmir cannot be secured, the Article will continue to operate irrespective of the duration of time. 38 26. Upon the enactment of the Constitution of Jammu and Kashmir, the Constituent Assembly became functus offi cio and as such, Article 370 became permanent.

Absent the recommendation of the Constituent Assembly, Article 370 could not be amended and the Legislative Assembly could not substitute the Constituent Assembly. 39 27. Article 370 could only have been repealed by the Constituent Assembly between 1950 and1957. After that, that is after the Constituent Assembly of the State ceased to exist, it can only be amended by way of 36 Submissions by Mr Zaff ar Shah, Senior Advocate. 37 Submissions by Mr Zaff ar Shah, Senior Advocate. 38 Submissions by Mr Zaff ar Shah, Senior Advocate. 39 Written Submissions on Behalf of Mr. Kapil Sibal. 36 SUPREME COURT REPORTS [2023] 16 S. C. R. the procedure specifi ed under Article 368, followed by its extension to the State of Jammu and Kashmir by Article 370(1)(d). After the enactment of the Constitution of Jammu and Kashmir and the consequent cessation of the Constituent Assembly of the State, Article 370(1) alone survives since the only mechanism of its repeal i. e.

Article 370(3) could not be resorted to, without the recommendation of the Constituent Assembly. As such, the dual constitutional arrangement between the State and the Union attained fi nality. 40 28. Contrary to the position taken by the senior counsel for certain Petitioners that Articles 370(1) and 370 (3) are permanent facets of the Constitution of India, after the dissolution of the Constituent Assembly, Mr Dinesh Dwivedi, senior counsel argues that Article 370 was a temporary provision. The interim arrangement in the form of Article 370 ceased to operate after the Constitution of Jammu and Kashmir was enacted. Article 370 ceased to be a source of power for the President, as was originally intended. 41 Mr Dinesh Dwivedi disagreed with the proposition that since the Constituent Assembly chose to not recommend the abrogation of Article 370, Article 370(3) would continue to operate after the dissolution of the Constituent Assembly.

42 He challenges the impugned actions on the ground that any power under Article 370 could no longer be exercised. A temporary provision could not be made a permanent source of power to bring about the impugned Constitutional Orders or the Reorganisation Act. After January 1957, no provisions of the Constitution of India could be applied to the State of Jammu and Kashmir and the Constitution of Jammu and Kashmir could not be repealed, being entirely independent from the Constitution of India. 43 29. Unlike the other States, the State of Jammu and Kashmir retained a part of the sovereignty even while acceding to the Dominion of India: a. There was no merger agreement between the Dominion of India and the State of Jammu and Kashmir, unlike other states. The terms of their relationship were defi ned in the Instrument of Accession44 whereby though certain matters were acceded to the Union; residual 40 Written Submissions Of Dr. Rajeev Dhavan, Senior Counsel.

41 Written Submissions By Shri Dinesh Dwivedi, Senior Advocate. 42 Written Submissions By Shri Dinesh Dwivedi, Senior Advocate. 43 Written Submissions By Shri D