Article 370

Article 370(3). The President may by notification declare that article 370 shall cease to be operative, subject to the proviso that the recommendation of the Constituent Assembly of the State shall be necessary before he issues such a notification.

Over sixty years dozens of Constitutional Orders were issued under 370(1)(d), the most important being the Constitution (Application to Jammu and Kashmir) Order 1954. By that route most of the Indian Constitution came to apply to the State, with modifications, and the special position eroded steadily long before 2019. That is a point worth making: article 370 was described as permanent by its defenders and temporary by its critics, and in practice it had been used as an instrument of gradual integration by both.

The problem the proviso created. The Constituent Assembly of the State dissolved in 1957. If its recommendation was a condition of any notification under 370(3), and the body that could make it no longer existed, then article 370 could never be brought to an end at all. That was the argument for its permanence, and it was the central question in 2023.

What was done in August 2019

Three instruments, in order, and an answer must keep them apart.

Constitutional Order 272, 5 August 2019, issued under article 370(1)(d). It applied all the provisions of the Constitution of India to Jammu and Kashmir. Its paragraph 2 also amended article 367, the interpretation clause, by adding a provision that the reference to the Constituent Assembly of the State in the proviso to article 370(3) should be read as a reference to the Legislative Assembly of the State.

Constitutional Order 273, 6 August 2019, issued under article 370(3), declaring that all clauses of article 370 should cease to be operative, subject to a saving.

The Jammu and Kashmir Reorganisation Act 2019, dividing the State into the Union territory of Jammu and Kashmir, with a legislature, and the Union territory of Ladakh, without one.

All of this was done while the State was under President's rule and its Legislative Assembly stood dissolved, so the "concurrence of the Government of the State" was given by the Governor, and the "views" of the State legislature under article 3 were expressed by Parliament acting in its place.

The decision

Facts. In re Article 370 of the Constitution, decided 11 December 2023 by five judges, Chandrachud C.J. with Kaul, Khanna, Gavai and Surya Kant JJ. Challenges to CO 272, CO 273 and the Reorganisation Act.

Held. The abrogation was upheld unanimously, but not every step of the route was.

On sovereignty. The State retained no element of internal sovereignty after the Instrument of Accession and the Proclamation of 25 November 1949 by which the State adopted the Constitution of India. Article 370 was a feature of asymmetric federalism and not of sovereignty. Kaul J. differed on this, holding that the State did retain an element of internal sovereignty which article 370 recognised, though he agreed the abrogation was valid.

On temporariness. Article 370 was intended to be a temporary provision, as its historical context, its text and its placement in Part XXI show.

On the dissolved Constituent Assembly. The power under article 370(3) did not cease when the State's Constituent Assembly dissolved. What ceased was only the transitional power of that Assembly to make a recommendation. The President's power survived, and could be exercised afterwards. CO 273 is therefore valid, and the President could issue it unilaterally.

On CO 272, and this is the part that failed. Article 370 cannot be amended by an exercise of power under article 370(1)(d). If article 370 was to cease to operate or be modified, recourse had to be had to article 370(3). Paragraph 2 of CO 272, which amended article 370 through article 367, is ultra vires article 370(1)(d), because it modified article 370 in effect without following the procedure for modifying it: an interpretation clause cannot be used to bypass the procedure laid down for amendment. The remainder of CO 272, applying all the provisions of the Constitution to the State, is valid, and is not mala fide merely because everything was applied at once.

On President's rule. The exercise of power by the President after an article 356 Proclamation is subject to judicial review; the exercise must have a reasonable nexus with the object of the Proclamation; the challenger must make out a prima facie case of mala fides or extraneous exercise, and the onus then shifts to the Union to justify it. Parliament's power under article 356(1)(b) extends to the non-legislative as well as the legislative powers of the State legislature.

On the reorganisation. The views of the State legislature under the first proviso to article 3 are recommendatory. The Court upheld the carving out of Ladakh as a Union territory under article 3(a) read with Explanation I. It did not decide whether article 3 permits an entire State to be converted into Union territories, because the Solicitor General stated that statehood would be restored. And it directed that the Election Commission hold elections to the Legislative Assembly by 30 September 2024, and that restoration of statehood take place at the earliest and as soon as possible.

On the State's Constitution. Following the application of the whole Constitution of India by CO 273, the Constitution of Jammu and Kashmir is inoperative and declared redundant.

Why it matters. Three propositions of general constitutional law come out of it, and they are usable well beyond Kashmir. What cannot be done directly cannot be done indirectly, and an interpretation clause is not a route round an amendment procedure. Presidential action during President's rule is reviewable, with a shifting onus. And a State legislature's views under article 3 are recommendatory, which confirms Babulal Parate on a much larger scale.

The criticism, which an LL.M. answer should engage with

Two lines are usually pressed and both deserve a sentence.

The self-consent problem. Every consent, concurrence and view that the process required was given by the Union or its appointee, because the State was under President's rule and had no elected government. The Governor concurred on behalf of the State Government; Parliament expressed the views of the State legislature. The Court's answer was that these were the constitutional consequences of a Proclamation whose validity had not been challenged in time, and that the powers exercised were reviewable. The criticism is that a safeguard which the beneficiary of the decision may satisfy on the other party's behalf is not a safeguard.

The unanswered question. The Court expressly declined to decide whether a State may be converted into Union territories under article 3, relying on the assurance that statehood would be restored. That leaves the most far-reaching question in the case open, and it is a question that affects every State, not only this one.

The direction on elections and statehood is stated above as the Court gave it. A student writing in a later year should check what has since happened before asserting the current position, because that is a fact about the world and not a proposition of law.

A worked example

A student is asked: "The Supreme Court upheld the abrogation of article 370, so the Government won on every point." Is that accurate?

No, and the inaccuracy matters. The outcome was upheld; one of the two instruments was not.

What was upheld. CO 273, the notification under article 370(3) declaring that article 370 ceased to operate, is valid. The power under 370(3) survived the dissolution of the State's Constituent Assembly in 1957, because what ceased was only that Assembly's transitional power to recommend, not the President's power. The President could therefore act unilaterally.

What was struck down. Paragraph 2 of CO 272, which amended article 367 so that the reference to the Constituent Assembly in the proviso to article 370(3) would be read as a reference to the Legislative Assembly. That is ultra vires article 370(1)(d): article 370 cannot be amended under 370(1)(d), an interpretation clause cannot be used to bypass an amendment procedure, and what cannot be done directly cannot be done indirectly.

Why the outcome survived anyway. Because CO 273 did not need CO 272's paragraph 2. Once the Court held that the President's power under 370(3) was never conditioned on a body that no longer existed, the workaround was unnecessary.

What the Court did not decide. Whether article 3 permits an entire State to be converted into Union territories. It relied on the Solicitor General's statement that statehood would be restored, upheld only the carving out of Ladakh under article 3(a) with Explanation I, and directed elections to the Assembly by 30 September 2024.

The wider propositions. Presidential action after an article 356 Proclamation is reviewable with a shifting onus, and the views of a State legislature under the first proviso to article 3 are recommendatory.

Quick revision

• Article 370 sat in Part XXI among the temporary and transitional provisions, and limited Parliament's power over the State to the acceded subjects and whatever the State concurred in.
• Article 370(1)(d) applied provisions of the Constitution by Presidential order; article 370(3) could end the article, on the recommendation of the State's Constituent Assembly, which dissolved in 1957.
• August 2019: CO 272 applied the whole Constitution and amended article 367 to read Constituent Assembly as Legislative Assembly; CO 273 ended article 370; the Reorganisation Act made two Union territories.
• 2023: abrogation upheld. No internal sovereignty; article 370 temporary and a feature of asymmetric federalism; the 370(3) power survived the Constituent Assembly's dissolution; CO 273 valid.
• Paragraph 2 of CO 272 was ultra vires: an interpretation clause cannot bypass an amendment procedure.
• Presidential action under article 356 is reviewable with a shifting onus; article 3 views are recommendatory; Ladakh's carving out upheld; whether a whole State may become Union territories was left undecided.

Test yourself

1. What did article 370 actually do, and what were the two mechanisms in clauses (1)(d) and (3)?

2. What was the argument that article 370 had become permanent, and how did the Court answer it?

3. Distinguish CO 272 from CO 273, and say what the Court held about each.

4. Why was paragraph 2 of CO 272 ultra vires? State the principle in general terms, without reference to Kashmir.

5. What question did the Court expressly leave undecided, and why does it matter to every State?