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2023 Supreme(SC) 1211

SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, CJI., SANJAY KISHAN KAUL, SANJIV KHANNA, B.R. GAVAI, SURYA KANT, JJ.
IN RE: ARTICLE 370 OF THE CONSTITUTION – Appellant
Writ Petition (Civil) Nos. 1099, 1013, 1037, 1048, 1062, 1068, 1070, 1082, 1104, 1165, 1210, 1222, 1268, 1368 of 2019, Writ Petition (C) Nos. 398, 924, 1092, 1162 of 2018, Writ Petition (C) Nos. 396, 756 of 2017, Writ Petition (C) No. 871 of 2015, Writ Petition (C) No. 722 of 2014, SLP (C) No. 19618 of 2017
Decided On : 11-12-2023

Advocates appeared
For the Petitioner(s):WPC 1099/2019 Mr. Aakarsh Kamra, Advocate
For the WPC 1099/2019 :Ms. Nitya Ramakrishnan, Mr. N. Sai Vinod, Mr. Prasanna S, Ms. Malavika Prasad, Mr. Shadan Farasat, Ms. Rupali Samuel, Mr. Archit Krishna, Mr. Vibhor Jain, Mr. M.V. Mukunda, Ms. Swati Arya, Mr. Yuvraj Singh Rathore, Advocates
For the WPC 1099/2019 :Mr. Muzaffar Hussain Baig, Mr. Aftab Ali Khan, Mr. Murtazza. A. Khan, Ms. Safina Baig, Mr. M.Z. Chaudhary, Mr. Ali Safeer Farooqi, Advocates
For the WPC 871/2015 :Mr. Anirudh Sharma, Advocates
For the WPC 722/2014 :Mr. Barun Kumar Sinha, Mrs. Pratibha Sinha, Mr. Rakesh Mudgal, Mr. Pankaj Kumar Shukla, Mr. Niraj Kumar, Mr. Sneh Vardhan, Ms. Ritu Raj, Mr. Rameshwar Prasad Goyal, Advocates
For the SLPC 19618/2017 :Mr. Anil Kumar Jha, Ms. Vijayalaxmi Jha, Ms. Jyoti Kumari, Advocates
For the WPC 1013/2019 :Petitioner-in-Person
For the WPC 1082/2019 :Mr. M.C. Dhingra, Mr. Vikrant Yadav, Mr. Gaurav Dhingra, Mrs. Madhavi Yadav, Mr. Ashok Kumar, Mr. Mohnish Nirwan, Ms. Prashi Tyagi, Mr. Syed Imtiyaz, Advocates
For the WPC 1068/2019 :Mr. Gopal Sankaranarayanan, Ms. Aparna Singh, Ms. Shivani Vij, Ms. Tanya Srivastava, Ms. Aditi Gupta, Ms. Trisha Chandran, Ms. Jhanvi Dubey, Ms. Ishita Chowdhury, Mr. Satyajit Sarna, Mr. Shrutanjaya Bhardwaj, Mr. Vikramaditya, Mr. Vishal Sinha, Ms. Charu Ambwani, Mr. Soayib Qureshi, Advocates
For the WPC 1037/2019 & WPC 1104/2019 :Mr. Gopal Subramanium, Mr. Kapil Sibal, Mr. D. Mahesh Babu, Mr. Shishir Pinaki, Mr. Muzaffar Iqbal Khan, Mr. Dhanaeswar Gudapalli, Mr. Gautam Bhatia, Ms. Aparajita Jamwal, Ms. Malavika Prasad, Mr. Nizam Pasha, Ms. Ujwala Uppaluri, Mr. Jayavardhan Singh, Mr. Rishabh Parikh, Ms. Hima Lawrence, Mr. Desam Sudhakara Reddy, Ms. Mallika Das, Mr. Pawan Bhushan, Mr. D. Siva Rami Reddy, Mr. K. Venkateshwara Prasad, Mr. Lakshay Laroiya, Mr. Medi Yadaiah, Advocates
For the WPC 1062/2019 :Mr. C.U. Singh, Dr. Saif Mahmood, Mr. D. Abhinav Rao, Mr. Mayank Mikhail Mukherjee, Mr. Amjid Maqbool, Ms. Bidya Mohanty, Advocates
For the WPC 1070/2019 :Mr. Shekhar Naphade, Mr. Prashanto Chandra Sen, Mr. Arjun Krishnan, Mr. Ankur Singh, Mr. Pratik Patnaik, Mr. Kaustav Som, Ms. Aishwarya Dash, Dr. Prashant Pratap, Ms. Farah Hashmi, Ms. Somya Yadava, Ms. Akshita Chhabra, Ms. Khyati Jain, Mr. Ranvir Singh, Advocates
For the WPC 1165/2019 :Dr. Rajeev Dhavan, Ms. Pritha Srikumar Iyer, Mr. Sulabh Rewari, Mr. Aditya Chatterjee, Ms. Mansi Binjrajka, Ms. Vidisha Singh, Advocates
For the WPC 1210/2019 :Mr. P.V. Dinesh, Ms. Anna Oommen, Advocates
For the WPC 1222/2019 :Mr. Dushyant Dave, Mr. Prashant Bhushan, Mr. Mohd. Irshad Hanif, Mrs. Shamim Irshad, Mr. Arshid Bashir, Ms. Rifat Ara Butt, Advocates
For the WPC 1222/2019 :Mr. Dushyant Dave, Mr. Prashant Bhushan, Mr. Mohd. Irshad Hanif, Mrs. Shamim Irshad, Mr. Arshid Bashir, Ms. Rifat Ara Butt, Advocates
For the WPC 756/2017 :Mr. Tripurari Ray, Mr. Balwant Singh Billowria, Mr. Atul Wadera, Mr. Anirudh Ray, Mr. Vivekanand Singh, Mr. Vijay Pratap Singh, Mr. Akshay Singh, Mr. Nithyananda Murthy P, Mrs. Bhanu Prabha, Ms. Shilpa Singh, Advocates
For the WPC 398/2018 :Mr. Ravindra Kumar Raizada, Ms. Divya Roy, Mr. Sarthak Raizada, Mr. Adarsh Upadhyay, Mr. Surjeet Singh, Mr. Yasharth Kant, Advocates
For the WPC 924/2018 :Mr. Pallav Mongia, Advocate
For the WPC 1092/2018 :Mr. Hari Shankar Jain, Mr. Vishnu Shankar Jain, Mr. Parth Yadav, Ms. Mani Munjal, Ms. Marbiang Khongwir, Advocates
For the WPC 1162/2018 :Mr. Rakesh Dwivedi, Mr. Ashwini Kumar Upadhyay, Mr. Ashwani Kumar Dubey, Mr. Roop Chaudhary, Mr. Eklavya Dwivedi, Mr. Chandra Shekhar, Advocates
For the WPC 1048/2019 :Dr. Maneka Guruswamy, Mr. Utkarsh Pratap, Mr. Lavkesh Bhambani, Mr. Harshwardhan Thakur, Mr. Vidur Dwivedi, Mr. Akashdeep Pandey, Mr. Shahbaaz Jameel, Mr. Amit Pandey, Mr. Ayush Pandey, Mr. Ali Muzaffar, Mr. Monish Ali Khan, Mr. Kausar Raza Faridi, Mr. Mehmood Umar Farouqui, Advocates
For the WPC 1268/2019 :Mr. Z.A. Shah, Mr. Dharmendra Kumar Sinha, Mr. G.N. Shaheen, Mr. N.A. Ronga, Mr. M. Ashraf Bhat, Mr. Towseef Ahmed Dar, Mr. Bashir Sadiq, Mr. Sanjay K. Chaddha, Mr. Onkar Prasad, Mr. Ajay Amritraj, Mrs. Barnali Basak, Mrs. Shweta Sand, Ms. Baby Devi Bonia, Mr. Raju Sonkar, Advocates
For the WPC 1368/2019 :Mr. Sanjay Parikh, Mr. Rohit Kumar Singh, Mr. Abhimanue Shrestha, Mr. Ashutosh Jha, Advocates
For the Respondent(s):Mr. R Venkataramani, AG Mr. Tushar Mehta, SG Mr. K.M. Nataraj, ASG Mr. Vikramjit Banerjee, ASG Mr. Kanu Agrawal, Mr. Rajat Nair, Mr. Ankur Talwar, Mrs. Sharadha Deshmukh, Mr. Madhav Singhal, Mr. Anand Venkatramani, Ms. Vijay Lakshmi Venkatramani, Mr. Vinayak Mehrotra, Ms. Mansi Sood, Mr. Chitvan Sinhal, Mr. Sonali Jain, Mr. Abhishek Kumar Pandey, Mr. Raman Yadav, Mr. Kartikay Aggarawal, Mr. Prantap Singh, Mr. Gaurang Bhushan, Mr. Aman Mehta, Mr. Chitransh Sharma, Mr. Vatsal Joshi, Mr. Anuj Srinivas Udupa, Dr. Reeta Vasishta, Mr. Arvind Kumar Sharma, Mr. B. Krishna Prasad, Mr. Shailesh Madiyal, Mr. D.C. Raina, Adv.Gen., Mr. Shailesh Madiyal, AAG Mr. Kanu Agrawal, AAG Mr. Pashupathi Nath Razdan, Mr. Parth Awasthi, Mr. Rushab Aggarwal, Ms. Maitreyee Jagat Joshi, Mr. Astik Gupta, Mr. Akshay Kumar, Ms. Akanksha Tomar, Mr. Vaibhav Sabharwal, Mr. Akanksha Tomar, Ms. Divija Mahajan, Mr. Sudhanshu Prakash, Mr. Satyajeet Kumar, Ms. Taruna Ardhendumauli Prasad, Mr. Charanjeet Singh Chanderpal, Mr. Anil Kumar, Mr. V. Giri, Ms. Suveni Bhagat, Mr. Harshad Sunder, Mr. Rahul Narang, Ms. Rao Vishwaja, Mr. Deepak Goel, Mr. Rahul G. Tanwani, Mr. Manan Shanghai, Mr. V C Shukla, Mr. Prashant Singh, Mr. Anantha Narayan, Mr. Vipin Kumar Sexana, Mr. Chaman Rana, Ms. Alka Goyal, Ms. Urvashi Sharma, Mr. Kumar Kartikay, Mr. Mani Shanker Mishra, Mr. Jitendra Bharti, Ms. Baby Devi Bonia, Ms. Harshita Maheshwari, Mr. Shadan Farasat, Ms. Warisha Farasat, Mr. Harshit Anand, Mr. Aman Naqvi, Mr. Prasana S, Ms. Hrishika Jain, Ms. Natasha Maheshwari, Ms. Mreganka Kukreja, Mr. Colin Gonsalves, Mr. Satya Mitra, Ms. Mugdha, Mr. Harvinder Chowdhury, Mr. Ashwini Kumar Upadhyay, Mr. Ashwani Kumar Dubey, Mr. Roop Chaudhary, Mr. Chandra Shekhar, Mr. G. Sivabalamurugan, Mr. Vasantha Kumar A, Mr. Selvaraj Mahendran, Mr. P.V. Harikrishnan, Dr. Sumit, Mr. Manoj K. Mishra, Ms. Rajshree Rai, Mr. Vinay Rai, Mr. J.K. Mishra, Mr. Umesh Dubey, Mr. Amrendra Kumar Singh, Ms. Madhulika, Mr. Rahul Pandey, Applicant-in-person Mr. Bimal Roy Jad, Dr. Brij Bhushan K. Jauhari, Ms. Riddhi Jad, Mr. Suresh Kumar Bhan, Mr. O.P. Singh, Mr. Harsh Mahan, Mr. Deepak Jyoti Ghildiyal, Ms. Baby Rani Bonia, Ms. Mini Bhardwaj, Ms. Purnima Jauhari, Ms. Sudha Pal, Ms. Rachna Gandhi, Ms. Vuzmal Nehru, Mr. Col N B Vishen, Mr. Raghav Sabharwal, Ms. Tanvi Dubey, Mr. Anukrit Gupta, Mr. Rahul Unnikrishnan, Mr. Sanjay Kumar Dubey, Mr. Varun Byreddy, Mr. Mekala Ganesh Kumar Reddy, Mr. Riju Raj Singh Jamwal, Ms. Madhusmita Bora, Mr. K. Krishna Kumar, Mr. Soayib Qureshi, Ms. Disha Singh, Mr. Shivendu Gaur, Mrs. Nidhi Sharma, Mr. Mohit, Mr. P.V. Surendranath, Ms. Resmitha R. Chandran, Mr. Subhash Chandran K.r., Mr. Sawan Kumar Shukla, Mr. Sarvan Kumar, Mr. Murari Prasad Shukla, Mr. Sumit R. Sharma, Mr. S. Guru Krishna Kumar, Mr. Dileep Kumar Dubey, Mr. Yash Raj Singh Bundela, Mr. Amit Sharma, Mr. Rajan Kumar Chourasia, Mr. Vishnu Kant, Mr. Surjeet Singh, Mr. Rajeev Ranjan, Mr. Pavan Kumar, Mr. Aviral Saxena, Ms. Kavitha K T, Mr. Ashwin K, Mr. Gopal Jha, Mr. Tadimalla Bhaskar Gowtham, Mr. Siddharth Sinha, Mr. Rajesh K. Singh, Mr. Shyamal Kumar, Mr. Bitu Kumar Singh, Mr. Sunil Kumar Tomar, Mr. Ajay Kumar Pandey, Mr. Sandeep Singh, Mr. Pawan, Ms. Srishti Mishra, Mr. Rishi Tutu, Mr. Rajesh Bhushan, Mr. Nitin Sangra, Ms. Shweta Singh Parihar, Mr. Irshad Ahmad, Mr. Mrinal Kumar Sharma, Mr. M. Khairati, Ms. Archana Pathak Dave, Mr. Sanjay Kumar Tyagi, Mr. Rajesh K Singh, Mr. Shyamal Kumar, Mr. Bitu Kumar Singh, Ms. Aditi Tripathi, Ms. Sindoora Vnl, Mr. V.C. Shukla, Mr. Kumar Prashant, Mr. Parmod Kumar Vishnoi, Mr. Avnish Dave, Mr. Vaibhav Dwivedi, Mr. Shashwat Nath, Ms. Sneh Lata Mishra, Mr. Siddharth Praveen Acharya, Mr. Bhunesh Vyas, Ms. Nandini Choudha, Ms. Ravi Kant Purohit, Mr. Lokendra Singh, Mr. Mohit Chaudhary, Mrs. Puja Sharma, Mr. Kunal Sachdeva, Ms. Madhuri Jain, Mr. Balwinder Singh Suri, Mr. Prakhar Mithal, Ms. Srishti Bajpai, Mr. Aashish Arya, Mr. Anubhav Mithal, Ms. Sagrika Arya, Mr. Mahesh Jethmalani, Mr. Anil Kaushik, Mr. Ravi Sharma, Ms. Mugdha Pandey, Mr. Ajay Awasthi, Mrs. Aditi Tripathi, Ms. Kanika Singhal, Mr. Himadri Haksar, Mr. Santosh Kumar, Mr. Sayooj Mohandas M., Mr. Bhaskar Gautham, Mr. Vishal Arun, Ms. Serena Jethmalani, Dr. Menaka Guruswamy, Mr. Anubhav Bhasin, Mr. Yash Tiwari, Mr. Uttkarsh Pratap, Mr. Lavkesh Bhambini, Mr. Harshwardhan Thakur, Mr. Shakti Kanta Pattanaik, Ms. Adeeba Mujahid, Mr. Mustafa Sajad, Mr. Siddharth Thakur, Mr. Mahesh Thakur, Ms. Keerti Jaya, Mr. Ranvijay Singh Chandel, Mrs. Geetanjali Bedi, Mr. Shivamm Sharrma, Mrs. Vipasha Singh, Mrs. Deepika Thakur, Mr. Vivek Singh, Mr. Bishwendra N. Singh, Ms. Sanjivani Aggarwal, Ms. Jyoti Aggarwal, Mr. Pradeep Shekhavat, Ms. Filza Moonis, Mr. Vikram Sharma, Mr. Pranav Kohli, Mr. Sahil Tagotra, Ms. Abhivyakti Banerjee, Mr. Prem Sadotra, Intervenor-in-person Mr. Ninad Dogra, Dr. Zahoor Ahmad Bhat, Mr. Ashok Mathur, Mr. V. Giri, Mr. Rahul G. Tanwani, Mr. Anantha Narayana M.g., Mr. Manan Sanghai, Ms. Suveni Bhagat, Mr. Harshad Sundar, Ms. Vishwaja Rao, Mr. Rahul Narang, Mr. Prashant Singh, Mr. V.C. Shukla, Mr. Shubendu Anand, Mr. Ayush Anand, Mr. Ritvik Banot, Mr. Anant Sangal, Mr. Deepak Goel, Ms. Nitya Ramakrishnan, Mr. Prasanna S., Mr. Archit Krishna, Mr. Ashwath Sitaraman, Ms. Swati Arya, Mr. Yuvraj Singh Rathore, Mr. Anupam Raina, Mr. Sunando Raha, Mr. Nishant Kumar, Ms. Osheen Bhat, Mr. Abhimanyu Tewari, Mr. Tushar Bathija, Mr. Siddhant Saroha, Mr. Praveer Singh, Mr. Vinay Navare, Mr. Apoorv Shukla, Ms. Ishita Farsaiya, Mr. Puneet Chahar, Ms. Prabhleen A Shukla, Mr. Pawan Kumar, Mr. B. K. Satija, Mr. Harish N. Salve, Mr. Ajit Tadav, Mr. Sanjay Kumar Tyagi, Mr. Pankaj Jamthani, Mr. Dileep Kumar Dubey, Mr. Alabhya Dhamija, Mr. Ajit Yadav, Mr. Surjeet Singh, Mr. Vishnu Kant, Ms. Sujata Upadhyay, Mr. Sarthak Raizada, Ms. Divya Roy, Mr. P.S. Sudheer, Mr. K.V. Muthu Kumar, Ms. Anu B, Mr. Z.A. Shah, Mr. Dharmendra Kumar Sinha, Mr. G.N. Shaheen, Mr. N.A. Ronga, Mr. M. Ashraf Bhat, Mr. Towseef Ahmed Dar, Mr. Towseef Ahmed, Mr. Bashir Sadiq, Mr. Sanjay K. Chaddha, Mr. Onkar Prasad, Mr. Ajay Amritraj, Mrs. Barnali Basak, Mrs. Shweta Sand, Ms. Baby Devi Bonia, Mr. Raju Sonkar, Mr. V.K. Biju, Mrs. Ria Sachthey, Mr. Chetanya Singh, Mr. Abhay Pratap Singh, Mr. Aniruddha Purushotham, Mr. Shaji George, Mr. Mayank Pandey, Dr. Ranjeet Bharti, Dr. Vivek Sharma, Mrs. Rubina Jawed, Ms. Vijay Lakshmi, Mrs. Deepa Joseph, Mr. Vineet Kumar Singh, Mr. Amlendu Kumar Akhilesh Kumar Jha, Mr. Adil Muneer Andrabi, Ms. Bisma Rashid, Mr. Saddam Hussain, Mr. Talha Abdul Rahman, Mr. Adnan Yousuf, Mr. M. Shaz Khan, Mr. Dinesh Dwivedi, Mr. K.K. Mohan, Mr. Prateek Dwivedi, Mr. Nishant Singh, Mr. Omprakash Ajitsingh Parihar, Mr. Arbind Kumar, Mr. Dushyant Tiwari, Ms. Manju Jetley, Ms. Pooja Sagar, Mr. Sandeep, Mr. Sunil Prakash Pandey, Mr. Sarika Sriwastava, Mr. Praveen Pathak, Mr. Nagan Pillai, Ms. Davinder Pal Kaur, Mr. Harpreet Singh, Mr. Chandan Mishra, Ms. Shraddha Khandadia, Advocates

IMPORTANT POINTS
(1) State of Jammu and Kashmir does not retain any element of sovereignty after execution of Instrument of Accession and issuance of Proclamation dated 25 November 1949 by which Constitution of India was adopted – State of Jammu and Kashmir does not have ‘internal sovereignty’ which is distinguishable from powers and privileges enjoyed by other States in the country – Article 370 was a feature of asymmetric federalism and not sovereignty – President in exercise of power under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist.
(2) Abrogation of Article 370 does not negate federal structure, as 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.
(3) Conversion/creation of a Union Territory from a State has to be justified by giving very strong and cogent grounds – It must be in strict compliance with Article 3 of Constitution of India.

Headnote:
Per DHANANJAYA Y. CHANDRACHUD, J.
(A) Constitution of India – Article 370 (Now Abrogated by Constitutional Order (CO) 273) – Constitution of Jammu and Kashmir – Section 5 – Withdrawal of special status to Jammu and Kashmir and bifurcation of State of Jammu and Kashmir into two Union Territories (Union Territory of Jammu and Kashmir and Union Territory of Ladakh) – Article 370 of Constitution of India incorporated special arrangements for governance of State of Jammu and Kashmir – State of Jammu and Kashmir did not possess sovereignty – Any restraints on power to modify relationship of Union with State would have to be traced to Constitution of India and not Constitution of Jammu and Kashmir – State being an integral part of Union of India, executive and legislative domain of State relates to Constitution of India – Territorial integrity of Union of India which encompassed as one of constituent units, State of Jammu and Kashmir, was beyond domain of authorities in legislative and executive sphere constituted by State Constitution – Unlike other states, State of Jammu and Kashmir had residuary legislative powers in view of Section 5 of Constitution of Jammu and Kashmir – This is not indicative of sovereignty of Jammu and Kashmir – Residual legislative powers cannot be equated to residual sovereignty – It instead reflects value of federalism and federal underpinnings of Constitution of India – Neither Parliament nor any of States have unrestricted power to make laws – Each has its own sphere of legislation, as demarcated by three lists in Seventh Schedule to Constitution – Each is supreme in its own sphere – States have plenary power to enact laws but this alone cannot be taken as a sign of sovereignty of individual States. (Paras 86, 159, 160 and 163)
(B) Sovereignty – Import – Sovereignty has different connotations in political theory, law and philosophy – Even within these fields, there is no definitive meaning about its content – Legal sovereignty exists when a body has unlimited or unrestricted legislative power or authority and when none other is superior to it – While expression ‘sovereignty’ was previously understood to mean that sovereign could enact any type or form of law in exercise of sovereign power, modern legal systems limit nature of laws that can be enacted by constitutional or other interdicts – Aspect of sovereignty which requires no subordination to another body is of greater significance as compared to traditional aspect that requires power to be unlimited – External and internal sovereignty are not entirely distinct concepts but are different facets – They have gradually come to be regarded as two sides of same coin. (Paras 88, 89 and 90)
(C) Constitution of India – Article 356 – Constitution of Jammu and Kashmir – Section 92 – Proclamation – Power of President under Article 356 to issue Proclamation is of an exceptional nature which has wide ramifications on autonomy of State and federal framework at large – Laches in challenging Proclamations cannot by itself be a valid ground to reject constitutional challenge to Proclamations issued under Article 356 of Constitution and Section 92 of Constitution of Jammu and Kashmir – Suspension of State Government is a necessary consequence of exercise of power under Article 356 – Proclamation issued by President under Article 356(1) is subject to judicial review – Article 74(2) only bars court from enquiring if any advice was given but does not bar scrutiny of material which formed the basis of advice – However, even if Court holds that Proclamation could not have been issued under Article 356, there would be no material relief which can be given in view of fact that it was revoked on 31 October 2019. (Paras 174, 188, 191, 196, 207 and 208)
(D) Constitution of India – Articles 352 and 356 – Comparison of executive power held by President under Articles 352 and 356 – Both national emergencies and imposition of President’s rule represent limited constitutionally sanctioned exceptions to federal principle which ordinarily dictates that State Governments and Legislatures are supreme within their sphere of operation – In limited circumstances set out in Articles 352 and 356, Constitution itself necessitates temporary and limited delegation of power to Union to restore ordinary operation of Constitution – Executive and legislative power conferred on Union upon issuance of Proclamation under Article 356 is narrow when compared to power conferred when Proclamation is issued under Article 352 – Executive and legislative power that Union would require to handle an emergency under Article 352 will be different from power that would be required to handle a situation of failure of constitutional machinery under Article 356 – Legislative and executive action must be geared towards ensuring that required tasks of governance are carried out during tenure of Proclamation. Legislative and executive action has to bear a proximate relationship to object and purpose underlying suspension of constitutional machinery in the State. (Paras 199, 201, 206 and 228)
(E) Constitution of India – Article 370 (Now Abrogated by Constitutional Order (CO) 273) – Constitution of Jammu and Kashmir – Section 5 – Withdrawal of special status to Jammu and Kashmir and bifurcation of State of Jammu and Kashmir into two Union Territories (Union Territory of Jammu and Kashmir and Union Territory of Ladakh) – Article 370 was couched amidst other temporary and transitional provisions with a marginal note which indicates that its provisions were temporary – Article 370 was adopted at a point of time when Maharaja of Jammu and Kashmir had acceded to Dominion of India by executing an Instrument of Accession – A power under a statute must be exercised in accordance with provisions of that statute and in no other manner – Power under Article 370(1)(b) and 370(1)(d) could only be exercised with collaboration between Union and State – Purpose which condition seeks to serve (collaboration between federal units and representative democracy) would be lost if President secures his own concurrence while exercising power – President has power under Article 370(3) to unilaterally notify that Article 370 shall cease to exist – Concurrence of Government of State was not necessary for President to exercise power under Article 370(1)(d) to apply all provisions of Constitution to Jammu and Kashmir – Exercise of power by President under Article 370(1)(d) to issue CO 272 is not mala fide – CO 272 is valid to the extent that it applies all provisions of Constitution of India to State of Jammu and Kashmir. (Paras 321, 365, 426, 427 and 428)
(F) Constitution of India – Article 370 (Now Abrogated by Constitutional Order (CO) 273) – Constitution of Jammu and Kashmir – Section 5 – Jammu and Kashmir Reorganisation Act, 2019 – Section 14 – Withdrawal of special status to Jammu and Kashmir and bifurcation of State of Jammu and Kashmir into two Union Territories (Union Territory of Jammu and Kashmir and Union Territory of Ladakh) – Constitution of India is a complete code for constitutional governance – It provides for establishment and scope of powers of legislature, executive, and judiciary at level of Union and States – It delineates Fundamental Rights and Directive Principles of State Policy – It regulates aspects of finance and property and provides for Public Service Commissions – Country and all States are governed in accordance with provisions of Constitution – Upon application of entire Constitution to State of Jammu and Kashmir, Jammu and Kashmir too is liable to be governed in same manner – Power under Article 370(3) did not cease to exist upon dissolution of Constituent Assembly of Jammu and Kashmir – When Constituent Assembly was dissolved, only transitional power recognised in proviso to Article 370(3) which empowered Constituent Assembly to make its recommendations ceased to exist – It did not affect power held by President under Article 370(3) – State of Jammu and Kashmir does not retain any element of sovereignty after execution of Instrument of Accession and issuance of Proclamation dated 25 November 1949 by which Constitution of India was adopted – State of Jammu and Kashmir does not have ‘internal sovereignty’ which is distinguishable from powers and privileges enjoyed by other States in the country – Article 370 was a feature of asymmetric federalism and not sovereignty – President in exercise of power under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist – Paragraph 2 of CO 272 issued by President in exercise of power under Article 370(1)(d) applying all provisions of Constitution of India to State of Jammu and Kashmir is valid – Such exercise of power is not mala fide merely because all provisions were applied together without following a piece-meal approach – Validity of decision to carve out Union Territory of Ladakh upheld – Steps shall be taken by Election Commission of India to conduct elections to Legislative Assembly of Jammu and Kashmir constituted under Section 14 of Reorganisation Act by 30 September 2024 – Restoration of statehood shall take place at the earliest and as soon as possible. (Paras 469 and 514)
Per Sanjay Kishan Kaul, J. (Asenting View)
Constitution of India – Article 370 (Now Abrogated by Constitutional Orders (COs) 272 and 273) – Withdrawal of special status to Jammu and Kashmir and bifurcation of State of Jammu and Kashmir into two Union Territories (Union Territory of provisions of Constitution – Power of President under Article 370(3) was unaffected by dissolution of Constituent Assembly of Jammu and Kashmir – President could exercise their power anytime after dissolution of Constituent Assembly of Jammu and Kashmir, in line with aim of full integration of State – C.O. 273, which declares that Article 370 shall cease to operate except as provided, and was issued under Article 370(3), is valid – Power to issue C.O. 272 without concurrence of Government of State is valid, as power of President is not limited by concurrence of Government of State in this case – Power under Article 370(1)(d) read with Article 367 cannot be used to do indirectly what cannot be done directly – Power to make modifications under Article 370(1)(d) cannot be used to amend Article 370 and Article 367 which is an interpretation clause, cannot be used to character of a provision – Paragraph 2 of C.O. 272, which amends Article 367(4) is ultra vires Article 370 – However, President had power to apply all provisions of Constitution of India to Jammu and Kashmir under Article 370(1)(d), which is similar to power under Article 370(3) – Remainder of Paragraph 2 of C.O. 272 is valid. (Paras 112)
Per Sanjiv Khanna, J. (Asenting View)
Constitution of India – Article 370 (Now Abrogated by Constitutional Orders (COs) 272 and 273) – Constitution of Jammu and Kashmir – Section 5 – Jammu and Kashmir Reorganisation Act, 2019 – Section 14 – Withdrawal of special status to Jammu and Kashmir and bifurcation of State of Jammu and Kashmir into two Union Territories (Union Territory of provisions of Constitution – Article 370 was enacted as a transitional provision and did not have permanent character – Abrogation of Article 370 does not negate federal structure, as 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 – 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 corresponding power under Article 370(1)(d) – Article 370 has been made inoperative in terms of clause (3) to Article 370 – C.O. 273 is valid – 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 citizens of State an elected state government and impinges on federalism – Conversion/creation of a Union Territory from a State has to be justified by giving very strong and cogent grounds – It must be in strict compliance with Article 3 of Constitution of India. (Paras 2 and 6)
Facts of the case:
Reference before the Constitution Bench raises the following questions for determination:
a. Whether provisions of Article 370 were temporary in nature or whether they acquired a status of permanence in the Constitution.
b. Whether 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 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 abrogation of Article 370 by President in exercise of power under Article 370(3) is constitutionally invalid in absence of a recommendation of Constituent Assembly of the State of Jammu and Kashmir as mandated by the proviso to clause (3).
e. Whether proclamation of Governor dated 20 June 2018 in exercise of power conferred by Section 92 of Constitution of Jammu and Kashmir and subsequent exercise of power on 21 November 2018, under Section 53(2) of Constitution of Jammu and Kashmir to dissolve Legislative Assembly are constitutionally valid.
f. Whether Proclamation which was issued by President under Article 356 of Constitution on 19 December 2018 and 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.
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.
Findings of Court:
Political process can correct itself and any differences that have arisen between democratic will of people exercised through their elected representatives in State, and decisions taken by President and Parliament, can be ironed out upon a return to normalcy – Court ought not to sit in appeal over every decision taken by President during imposition of Article 356.
Result : Writ petition and special leave petitions disposed of with observations.

Judgement Key Points

Key Points: - The State of Jammu and Kashmir did not retain any element of sovereignty after the execution of the Instrument of Accession and the adoption of the Constitution of India (!) (!) . - Article 370 was a feature of asymmetric federalism rather than a manifestation of sovereignty (!) (!) . - The President has the power under Article 370(3) to unilaterally issue a notification that Article 370 ceases to exist (!) (!) . - The dissolution of the Constituent Assembly of Jammu and Kashmir did not affect the President's power under Article 370(3) (!) (!) . - The application of the entire Constitution of India to the State of Jammu and Kashmir is a valid exercise of power (!) (!) . - The Constitution of Jammu and Kashmir is inoperative and redundant following the application of the Constitution of India in its entirety (!) (!) . - The conversion of a State into a Union Territory must be justified by strong and cogent grounds and must comply with Article 3 of the Constitution (!) (!) . - The views of the State Legislature under the first proviso to Article 3 are recommendatory, and Parliament's exercise of power under this proviso during President's rule is valid (!) (!) . - The Election Commission of India is directed to conduct elections to the Legislative Assembly of Jammu and Kashmir by 30 September 2024 (!) (!) . - Restoration of statehood to Jammu and Kashmir should take place at the earliest (!) (!) .

What is the nature of Article 370 of the Constitution of India?

What is the scope of the President's power under Article 370(3) after the dissolution of the Constituent Assembly of Jammu and Kashmir?

What is the constitutional validity of the Jammu and Kashmir Reorganisation Act 2019?

JUDGMENT :

DHANANJAYA Y. CHANDRACHUD, CJI.

Table of Contents
A.	Background
B.	Reference
C.	Submissions
i.	Submissions of the petitioners
ii.	Submissions of the Union of India
D.	Issues
E.	Analysis
i.	The State of Jammu and Kashmir did not possess sovereignty
a.	The meaning of sovereignty
b.	The history of the Union of India and Jammu and Kashmir
c.	Neither the constitutional setup nor any other factors indicate that the State of Jammu and Kashmir retained an element of sovereignty
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
iii.	Limitations on the exercise of power by President or Parliament under Article 356
a.	Presidential Proclamation under Article 356
b.	Interpreting Article 356 in the aftermath of SR Bommai
c.	SR Bommai on validity of exercise of power after the Proclamation
d.	Interpretation of Part XVIII
I.	Comparison of executive power held by the President under Articles 352 and 356
II.	Interpretation of Article 356
III.	The argument of ‘irrevocability’: Interpreting Article 357(2) and Krishna Kumar Singh
IV.	The distinction between legislative and constitutional functions of the Legislature
e.	The standard to assess actions taken under Article 356 after the issuance of Proclamation
iv.	Article 370: a temporary provision?
a.	The historical context to Article 370
I.	Accession of Jammu and Kashmir
II.	The constitutional integration of Indian States
b.	Procedure for Indian States to ratify the Constitution
III.	Debates in the Constituent Assembly on Article 370
IV.	Inference
b.	Scope of provisions in Article 370
I.	Placement in Part XXI of the Constitution and Marginal Note to Article 370
II.	Interpretation of Article 370
III.	Inference
v.	The effect of dissolution of the Constituent Assembly of Jammu and Kashmir on the scope of powers under Article 370(3)
a.	The judgment in Sampath Prakash
b.	The limited power of the Constituent Assembly under Article 370
I.	The structure of Article 370(1) and 370(2)
II.	The structure of Article 370(3)
c.	Inference
vi.	The Challenge to CO 272
a.	Amendment of Article 370 through Article 370(1)(d)
I.	The application of the Constitution to the State of Jammu and Kashmir
II.	Paragraph 2 of CO 272
III.	The substance or effect of a provision is more important than its form
IV.	The validity of modification of Article 367
V.	Previous Constitutional Orders which modified Article 367
b.	Applying the entire Constitution to Jammu and Kashmir through exercise of power under Article 370(1)(d)
c.	Securing the concurrence of the Union Government under the second proviso to Article 370(1)(d)
vii.	The Challenge to CO 273
viii.	The status of the Constitution of Jammu and Kashmir
ix.	The challenge to the Reorganisation Act on substantive grounds
a.	The constitutional history of States and Union territories and the reason for the existence of Article 3
b.	The contours of the power under Article 3
I.	Federalism, representative democracy and the significance of States
II.	The reason for the creation of Union territories
III.	The journey of Union territories: 1956 to 2023
IV.	The scope of Article 3
x.	The Challenge to the Reorganization Act on procedural grounds
a.	Parliament’s exercise of power under the first proviso to Article 3
b.	Suspension of the second proviso to Article 3 as applic

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2023 Supreme(SC) 1211

What is the nature of Article 370 of the Constitution of India?

What is the scope of the President's power under Article 370(3) after the dissolution of the Constituent Assembly of Jammu and Kashmir?

What is the constitutional validity of the Jammu and Kashmir Reorganisation Act 2019?

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