In re Article 370

Essence of the judgment

1. There are three judgments of this Court – one authored by the CJI for

himself, for Justice Gavai and Justice Surya Kant. There is a concurring opinion

authored by Justice Kaul. Justice Sanjiv Khanna has concurred with both the

judgments.

2. The reference before the Constitution Bench raises the following questions

for determination:

a. Whether the provisions of Article 370 were temporary in nature or

whether they acquired a status of permanence in the Constitution;

b. Whether the amendment to Article 367 in exercise of the power under

Article 370(1)(d) so as to substitute the reference to the “Constituent

Assembly of the State referred to in clause (3) of Article 370 by the words

“Legislative Assembly of the State” is constitutionally valid;

c. Whether the entire Constitution of India could have been applied to the

State of Jammu and Kashmir in exercise of the power under Article

370(1)(d);

d. Whether the abrogation of Article 370 by the President in exercise of the

power under Article 370(3) is constitutionally invalid in the absence of a

recommendation of the Constituent Assembly of the State of Jammu and

Kashmir as mandated by the proviso to clause (3);

1
e. Whether the proclamation of the Governor dated 20 June 2018 in

exercise of power conferred by Section 92 of the Constitution of Jammu

and Kashmir and the subsequent exercise of power on 21 November

2018, under Section 53(2) of the Constitution of Jammu and Kashmir to

dissolve the Legislative Assembly are constitutionally valid;

f. Whether the Proclamation which was issued by the President under

Article 356 of the Constitution on 19 December 2018 and the subsequent

extensions are constitutionally valid;

g. Whether the Jammu and Kashmir Reorganisation Act 2019 by which the

State of Jammu and Kashmir was bifurcated into two Union Territories

(Union Territory of Jammu and Kashmir and Union Territory of Ladakh)

is constitutionally valid bearing in mind:

i. The first proviso to Article 3 which requires that a Bill affecting

the area, boundaries or name of a State has to be referred to

the legislature of the State for its views; and

ii. The second proviso to Article 3 which requires the consent of

the State legislature for increasing or diminishing the area of

the State of Jammu and Kashmir or altering the name of

boundary of the State before the introduction of the Bill in

Parliament;

h. Whether during the tenure of a Proclamation under Article 356, and

when the Legislative Assembly of the State is either dissolved or is in

2
 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.

3. Whether the Proclamation issued under Article 356 of the Constitution of

India and Section 92 of the Constitution of Jammu and Kashmir is constitutionally

valid:

a. We have held that this Court need not adjudicate on the validity of the

Proclamations because:

i. the pleadings of the petitioners in the writ petitions indicate that their

principal challenge is to the abrogation of Article 370 and whether

such an action could have been taken during President’s rule; and

ii. even if this Court holds that the Proclamation could not have been

issued under Article 356, there would be no material relief which can

be given in view of the fact that President’s Rule was revoked in the

State of Jammu and Kashmir on 31 October 2019. Further, the

petitioners have assailed the specific actions which were taken when

the Proclamation was in force on the ground that those actions breach

the constitutional limitations on the exercise of power after a

Proclamation under Article 356 is issued. These substantive

challenges which form the fulcrum of the case of the petitioners have

been considered.

3
4. Whether there are limitations on the exercise of power by President or

Parliament under Article 356

We have held that there are limitations on the power which can be exercised by

the Union Government in the State when a Proclamation under Article 356. We

have reached the conclusion on the following grounds:

a. The majority in SR Bommai (supra) held that the actions taken by the

President after issuing a Proclamation are subject to judicial review.

However, the learned Judges adopted slight variations on the standard

needed to be applied by the Court to test the validity of exercise of power by

the President after the issuance of the Proclamation. Justice Sawant applied

the standard of whether the exercise of power was mala fide or palpably

irrational. Justice Reddy observed that the advisability and necessity of the

action must be borne in mind by the President;

b. This Bench sitting in a combination of five judges is bound by the decision

of the majority in SR Bommai (supra) on the issue. We also undertook a

textual and purposive reading of Article 356 in particular and Part XVIII as a

whole. We hold that there are limitations on the power exercisable after a

Proclamation under Article 356 is issued. The following are our reasons:

i. The thread that runs through Part XVIII of the Constitution when read

as a whole is that differing levels of executive and legislative power

are required to handle an emergency under Articles 352 and 356. This

principle applies to the exercise of power when a Proclamation under

Article 356 is in force;

4
ii. Article 356(1) states that the President may by a Proclamation

assume or declare the powers stipulated in clauses (a), (b), and (c) of

Article 356(1). The powers stipulated in clauses (a), (b), and (c) of

Article 356(1) are not automatically invoked when a Proclamation is

issued under Article 356;

iii. Article 356(1)(a) does not opt for an all or none formula. The phrase

“all or any” does not indicate that the Union Government can exercise

a part of the functions of the State Government and the State

Government can exercise the remaining because the suspension of

the State Government is an automatic consequence of the

Proclamation under Article 356. It rather indicates that the scope of

power exercised by the Union Government must depend on the

circumstances for issuing the Proclamation;

iv. Clauses (a), (b), and (c) of Article 356(1) grant the President

independent powers. However, the power provided under Clause (c)

is broad enough to encapsulate the power of the President to assume

functions under clause (a) and declare under clause (b) that the

powers of the Legislature of the State shall be exercisable by

Parliament;

v. The principle underlying Article 356(1)(c) is that the exercise of power

by the President must be “desirable or necessary” to give effect to the

objects of the Proclamation. The commonality in both the “necessity”

and “desirability” standard is that the exercise of power must have a

reasonable nexus with the object of the Proclamation. Thus, the

5
 principle which runs through Article 356(1)(c) and which also guides

the exercise of power under Article 356(1)(a) is that the exercise of

power must have a reasonable nexus with the object of the

Proclamation; and

vi. When a Proclamation under Article 356 is in force, there are

innumerable decisions which are taken by the Union Government on

behalf of the State Government for the purpose of day to day

administration. Every decision and action taken by the Union

Executive on behalf of the State is not subject to challenge. Opening

up challenge to every decision would lead to chaos and uncertainty.

It would in effect put the administration in the State at a standstill.

c. The following standard is laid down to assess actions under Article 356 after

the Proclamation has been issued:

i. The exercise of power by the President under Article 356 must have

a reasonable nexus to the object of the Proclamation;

ii. The person challenging the exercise of power must prima facie

establish that it is a mala fide or extraneous exercise of power. After

a prima facie case is made, the onus shifts to the Union to justify that

the exercise of power had a reasonable nexus with the object of the

Proclamation; and

iii. The exercise of power by the President for everyday administration of

the State is not ordinarily subject to judicial review.

d. The argument of the petitioners that the Union Government cannot take

actions which have irreversible consequences when a Proclamation under

6
 Article 356 is in force is not accepted. The power of the Legislature of the

State under Article 357 to repeal or alter or amend a law enacted by

Parliament in exercise of the power of the Legislature of the State must be

read in the context of the amendment introduced by the Constitution (forty-

second Amendment) Act 1976. Before the amendment, the law to the extent

of incompetency would automatically cease to exist after a buffer period and

actions done were expressly saved. However, an express repeal by the

competent legislature is required for the law to cease to exist after the

amendment. The repealing statute would in such a case make provisions

for actions taken during the subsistence of the legislation. The observations

in Krishna Kumar Singh (supra) on whether the consequence of an

Ordinance can subsist even after the Ordinance ceases to exist cannot be

transposed to interpret the limits of Article 356 because an Ordinance which

has the effect of a law by its very nature has a limited life; and

e. The argument of the petitioner that Parliament can only assume the law-

making powers of the Legislature of the State when the Proclamation under

Article 356 is issued is not accepted. The purpose of Article 357 is to ensure

that while exercising the powers of the legislature of the State pursuant to a

declaration under Article 356(1), Parliament, or as the case may be, the

President are not impeded by an absence of competence which would have

impeded the exercise of a similar power in the absence of a Proclamation

under Article 356. Further, Article 357 does not contain a non-obstante

provision which overrides Article 356. To interpret Article 357(1) as a

restriction on Article 356(1)(b) would be to read in a restriction which the

7
 plain terms of the Constitution do not provide. Aa held above, the exercise

of power after a Proclamation under Article 356 is issued is subject to judicial

review. An immunity from judicial scrutiny does not attach to the exercise of

constitutional powers of the Legislature of the State. The Court while

judicially reviewing the exercise of power can determine if the exercise of

the constitutional power of the Legislature of the State by Parliament has a

reasonable nexus with the object sought to be achieved by the

Proclamation.

5. Whether Jammu and Kashmir retained an element of sovereignty or internal

sovereignty when it joined the Union of India:

We have held that the State of Jammu and Kashmir did not retain an element of

sovereignty when it joined the Union of India. We have arrived at this conclusion

for the following reasons:

a. Paragraph 8 of the Instrument of Accession executed by Maharaja Hari

Singh provided that nothing in the Instrument would affect the continuance

of the sovereignty of the Maharaja in and over the State;

b. On 25 November 1949, a Proclamation was issued for the State of Jammu

and Kashmir by Yuvraj Karan Singh. The declaration in this Proclamation

that the Constitution of India would not only supersede all other

constitutional provisions in the State which were inconsistent with it but also

abrogate them achieves what would have been attained by an agreement

of merger. With the issuance of the Proclamation, paragraph 8 of the

Instrument of Accession ceased to be of legal consequence. The

8
 Proclamation reflects the full and final surrender of sovereignty by Jammu

and Kashmir, through its sovereign ruler, to India – to her people who are

sovereign;

c. Neither the constitutional setup nor any other factors indicate that the State

of Jammu and Kashmir retained an element of sovereignty. The Constitution

of Jammu and Kashmir was only to further define the relationship between

the Union of India and the State of Jammu and Kashmir. The relationship

was already defined by the IoA, the Proclamation issued by Yuvraj Karan

Singh in November 1949 and more importantly, by the Constitution of India;

d. There is a clear absence in the Constitution of Jammu and Kashmir of a

reference to sovereignty. In contrast, the Constitution of India emphasises

in its Preamble that the people of India resolved to constitute India into a

sovereign, socialistic, secular, democratic, republic;

e. That the State of Jammu and Kashmir became an integral part of the Union

of India is evident from Articles 1 and 370 of the Indian Constitution. It is

reiterated in Section 3 of the Constitution of Jammu and Kashmir, which is

unamendable;

f. The Preamble of the Constitution of Jammu and Kashmir, Sections 3, 5 and

147 of the State Constitution, coupled with Article 1 of the Constitution of

India read with the First Schedule as well as Article 370 indicate in no

uncertain terms that a system of subordination (as understood by the

definition of sovereignty) exists by which the State is subordinate to the

Indian Constitution first and only then to its own Constitution;

9
 g. All States in the country have legislative and executive power albeit to

differing degrees. The Constitution accommodates concerns specific to a

particular State by providing for arrangements which are specific to that

State. Articles 371A to 371J are examples of special arrangements for

different States. This is a feature of asymmetric federalism, like Article 370

which became applicable to Jammu and Kashmir on the adoption of the

Constitution. 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; and

h. The limited question before the Constitution Bench in Prem Nath Kaul

(supra) was whether the Monarch held plenary legislative powers after the

Constitution of India as it applied to Jammu and Kashmir was adopted in the

State but before the Constitution of Jammu and Kashmir was adopted. A

decision is an authority for the proposition which it decides. The question of

whether the State of Jammu and Kashmir retained sovereignty upon

integration with the Dominion of India did not arise in that case.

6. The challenge to CO 273

a. To answer this issue we had to decide on two issues. One, whether Article

370 is a temporary provision and two, the effect of dissolution of the

Constituent Assembly of Jammu and Kashmir on the scope of powers under

Article 370(3);

b. We have held that Article 370 is a temporary provision on a reading of the

historical context in which it was included. Article 370 was introduced to

serve two purposes. First, the transitional purpose: to provide for an interim

10
 arrangement until the Constituent Assembly of the State was formed and

could take a decision on the legislative competence of the Union on matters

other than the ones stipulated in the Instrument of Accession, and ratify the

Constitution; and second, a temporary purpose: an interim arrangement in

view of the special circumstances because of the war conditions in the State;

c. We have held that a textual reading of Article 370 also indicates that it is a

temporary provision. For this purpose, we have referred to the placement of

the provision in Part XXI of the Constitution which deals with temporary and

transitional provisions, the marginal note of the provision which states

“temporary provisions with respect to the State of Jammu and Kashmir”, and

a reading of Articles 370 and 1 by which the State became an integral part

of India upon the adoption of the Constitution; and

d. On the second question of the effect of the dissolution of the Constituent

Assembly of Jammu and Kashmir on the scope of powers under Article

370(3): we have held that the power of the President under Article 370(3) to

issue a notification declaring that Article 370 ceases to exist subsists even

after the dissolution of the Constituent Assembly of Jammu and Kashmir for

the following reasons:

i. The proviso to Article 370(3) encapsulates the process by which the

Indian States could ratify the Constitution of India. The Ruler of each

Indian State had to issue a Proclamation ratifying the Constitution on

the recommendation of the Constituent Assembly, where such body

existed. In States where the Constituent Assembly was not convened

by then, the Ruler of the State had to issue a Proclamation accepting

11
 the Constitution. When a Constituent Assembly was convened in

those States, the Constituent Assembly could make a

recommendation for the modification of the Constitution as it applied

to the State and such a recommendation would be “earnestly

considered” by the Union. The words “recommendation of the

Constituent Assembly referred to in Clause (2) shall be necessary

before the President issues such a notification” as it appears in the

proviso to Article 370(3) must be read in this context. Thus, the

recommendation of the Constituent Assembly to begin with was not

binding on the President;

ii. At the time of the framing of the Constitution of India, it was obviously

within the contemplation that the Constituent Assembly of Jammu and

Kashmir was formed for framing the Constitution for the State. It was

not intended to be a permanent body but a body with a specific remit

and purpose. The power conferred by the proviso to Article 370(3)

was hence something which would operate in a period of transition

when the Constituent Assembly of Jammu and Kashmir was formed

and was in existence, pending the drafting of the State Constitution;

iii. When the Constituent Assembly of Jammu and Kashmir ceased to

exist, only one of the special circumstances for which the provision

was introduced ceased. However, the other circumstance (that is,

special circumstance because of the situation in the State) for which

Article 370 was introduced subsisted even after the Constituent

12
 Assembly ceased to exist. This is recognised by the judgment of the

Constitution Bench in Sampath Prakash (supra);

iv. The effect of the President declaring under Clause 370(3) that Article

370 ceases to exist is that provisions of the Constitution which apply

to every other State in the First Schedule would equally apply to the

State of Jammu and Kashmir. Articles 370(1)(d) and 370(3) were

introduced with the purpose of enhancing constitutional integration

and not disintegration. So, the power under Article 370(1)(d) and

Article 370(3) even when exercised to its fullest extent does not freeze

the system of integration contemplated by Article 370 but is rather

intended to enhance constitutional integration between the Union and

the State of Jammu and Kashmir. Holding that the power under Article

370(3) cannot be exercised after the dissolution of the Constituent

Assembly would lead to the freezing of the process of integration

contrary to the purpose of introducing the provision; and

v. If the contention of the petitioners on the interpretation of Article 370

vis-à-vis the dissolution of the Constituent Assembly is accepted then

Article 370(3) would become redundant and would lose its temporary

character.

e. The President while deciding if the power under Article 370(3) must be

exercised determines if the special circumstances which warranted a special

solution in the form of Article 370 have ceased to exist. This is a policy

decision which completely falls within the realm of the executive. The Court

cannot sit in appeal over the decision of the President on whether the special

13
 circumstances which led to the arrangement under Article 370 have ceased

to exist. However, the decision is not beyond the scope of judicial review. It

is settled law that the exercise of executive power can be challenged on the

ground of mala fides. The slew of Constitutional orders issued by the

President under Article 370(1)(d) applying various provisions of the

Constitution and applying provisions with modification indicate that over the

course of the last seventy years, the Union and the State have through a

collaborative exercise constitutionally integrated the State with the Union.

This is not a case where only Articles 1 and 370 of the Constitution were

applied to the State of Jammu and Kashmir and suddenly after seventy

years the entire Constitution was being made applicable. 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 in exercise of the power under Article 370(3) is a

culmination of the process of integration. Thus, we do not find that the

President’s exercise of power under Article 370(3) was mala fide. Having

concluded that the power under Article 370(3) subsisted even after the

dissolution of the Constituent Assembly we have held that the exercise of

power by the President to issue CO 273 is valid.

7. The challenge to CO 272 on the ground that the power under Article

370(1)(d) cannot be used to apply all provisions of the Constitution to the State of

Jammu and Kashmir

14
We have held that all provisions of the Constitution can be applied to Jammu and

Kashmir through the exercise of power under Article 370(1)(d). The power under

Article 370(1)(d) can be used to apply one provision, more than one provision, an

entire Part of the Constitution, or all the provisions of the Constitution (that is, the

entire Constitution). The provision does not make a distinction between one or all

provisions of the Constitution. Non-application of mind cannot be claimed merely

because the CO 272 applies all provisions of the Constitution to Jammu and

Kashmir in one go.

8. The challenge to CO 272 on the ground that the President could not have

secured the concurrence of the Union Government under the second proviso to

Article 370(1)(d)

a. We have held that the President seeking the concurrence of the Union

Government instead of the Government of the State to issue CO 272 is not

invalid because:

i. The effect of applying all the provisions of the Constitution to the State

of Jammu and Kashmir through the exercise of power under Article

370(1)(d) is the same as an exercise of power under Article 370(3)

notifying that Article 370 shall cease to exist. That is, all provisions of

the Constitution of India will apply to the State of Jammu and Kashmir,

except for the fact that the former can be reversed while the latter

cannot;

ii. Consultation and collaboration between both the units will only be

necessary where the application of the provisions of the Indian

15
 Constitution to the State would require amendments to the State

Constitution because the purpose of the requirements of consultation

and collaboration is for the smooth functioning of governance in the

State and to ensure that the provisions of the Constitution of Jammu

and Kashmir are not inconsistent with the provisions of the

Constitution of India;

iii. Since the effect of applying all the provisions of the Constitution to

Jammu and Kashmir through the exercise of power under Article

370(1)(d) is the same as issuing a notification under Article 370(3)

(which the President has the power to unilaterally issue), the principle

of consultation and collaboration are not required to be followed;

iv. The exercise of power is mala fide only if power was exercised with

an intent to deceive. Deception can only be proved if the power which

is otherwise unavailable to the authority or body is exercised or if the

power that is available is improperly exercised. Since the concurrence

of the State Government was not required for the exercise of power

under Article 370(1)(d) to apply all provisions of the Constitution to

the State, the President securing the concurrence of the Union of

India (on behalf of the State Government) is not mala fide.

9. The challenge to CO 272 on the ground that it is ultra vires Article 370(1)(d)

because it modifies Article 370:

a. We have held that the modification by CO 272 to Article 367 as it

applies to Jammu and Kashmir had the effect of amending Article 370 and is

16
thus ultra vires Article 370(1)(d). We have reached this conclusion for the

following reasons:

i. Recourse must be had to the procedure contemplated by Article

370(3) if Article 370 is to cease to operate or is to be amended or

modified in its application to the State of Jammu and Kashmir. No

other procedure may be utilised to amend Article 370.

ii. The rule of interpretation that a power under a statute must be

exercised in accordance with the provisions of that statute and in no

other manner is undoubtedly applicable to the Constitution;

iii. From precedent, including Shankari Prasad Singh Deo, Sajjan

Singh, Kihoto Hollohan, and Rajendra N. Shah, it emerges that the

following aspects are of significance when assessing whether a

change has been made to a provision of the Constitution:

i. A change may be either in terms of or in its effect;

ii. A change can be said to have been made even if the language of

the concerned provision is not directly amended, by adding,

subtracting or modifying the language. This is a change in effect;

iii. If the effect of an amendment is to change a provision, such effect

must be significant or appreciable; and

iv. The substance of a change is more important than its form.

17
b. An assessment of whether a Constitutional Order amounts to a ‘modification’

and consequently, whether the procedure under Article 370(1) or under

Article 370(3) ought to have been followed depends on this standard.

c. The effect of a provision of law is as important as its form. While the change

sought to be made by paragraph 2 of CO 272 may appear to be a

‘modification’ or amendment of Article 367 at first blush, its effect is to

amend Article 370 itself. CO 272 changes the language to the proviso to

Article 370(3) in two ways. First, it changes the recommending body from

the Constituent Assembly to the Legislative Assembly; and second, it makes

a new arrangement at variance with that specific Constituent Assembly. Both

these changes are not insignificant because they modify the essential

character of the proviso by substituting a particular type or kind of body with

another type or kind entirely.

d. While the ‘interpretation’ clause can be used to define or give meaning to

particular terms, it cannot be deployed to amend a provision by bypassing

the specific procedure laid down for its amendment. This would defeat the

purpose of having a procedure for making an amendment.

e. The consequence of permitting amendments through the circuitous manner

would be disastrous. Many provisions of the Constitution would be

susceptible to amendments which evade the procedure stipulated by Article

368 or other provisions.

f. The previous Constitutional Orders which modified Article 370 through

Article 367 were clarificatory and consequential. They did not have the effect

of amending Article 370.

18
10. The status of the Constitution of Jammu and Kashmir:

a. The gaps left by the non-application of some parts of the Constitution of

India were filled by the Constitution of the State. After the abrogation of

Article 370 (as it stood before the issuance of CO 272 and CO 273) and

the application of the entirety of the Constitution of India to the State, the

Constitution of the State does not fulfil any purpose or serve any

function. Hence, the implicit but necessary consequence of the

application of the Constitution of India in its entirety to the State of

Jammu and Kashmir is that the Constitution of the State is inoperative.

11. On the validity of Parliament’s exercise of power under the first proviso to

Article 3

A five-Judge Bench of this Court in Babulal Parate held that the views

expressed by the State Legislature under the proviso to Article 3 are not

binding on Parliament. If the views of the State Legislature were binding on

Parliament (which is not the case), there would be scope for debate on

whether Parliament in exercise of powers under Article 356(1)(b) could have

substituted its views for the views of the Legislative Assembly of the State.

However, the views of the Legislature of the State are not binding on

Parliament in terms of the first proviso to Article 3. The views of the Legislature

of the State under the first proviso to Article 3 are recommendatory to begin

with. Thus, Parliament’s exercise of power under the first proviso to Article 3

is valid and not mala fide.

19
12. On the validity of the Suspension of the second proviso to Article 3 as

applicable to Jammu and Kashmir

When the Reorganisation Bill was introduced, that is 5 August 2019, the second

proviso to Article 3 as it applied to the State of Jammu and Kashmir ceased to exist

because of CO 272. Thus, the issue of whether the second proviso to Article 3

could have been suspended in exercise of the power under Article 356(1)(c) does

not survive.

13. The validity of the Jammu and Kashmir Reorganisation Act 2019:

a. The Solicitor General (for the Union of India) submitted that statehood

will be restored to Jammu and Kashmir and that its status as a Union

territory is temporary. The Solicitor General submitted that the status of

the Union Territory of Ladakh will not be affected by the restoration of

statehood to Jammu and Kashmir. In view of the submission made by

the Solicitor General that statehood would be restored of Jammu and

Kashmir, we do not find it 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. The status of Ladakh as a Union Territory is upheld because

Article 3(a) read with Explanation I permits forming a Union Territory by

separation of a territory from any State. This Court is alive to the security

concerns in the territory. Direct elections to the Legislative Assemblies

which is one of the paramount features of representative democracy in

India cannot be put on hold until statehood is restored. We direct that

20
 steps shall be taken by the Election Commission of India to conduct

elections to the Legislative Assembly of Jammu and Kashmir constituted

under Section 14 of the Reorganisation Act by 30 September 2024.

Restoration of statehood shall take place at the earliest and as soon as

possible.

b. The question of whether Parliament can extinguish the character of

statehood by converting a State into one or more Union Territories in

exercise of power under Article 3 is left open. In an appropriate case,

this Court must construe the scope of powers under Article 3 in light of

the necessary effect of converting a State to Union Territories which is

that autonomy would be diminished, the historical context for the

creation of federating units, and its impact on the principles of federalism

and representative democracy.

14. In view of the above discussion, the following are the conclusions:

a. The State of Jammu and Kashmir does not retain any element of

sovereignty after the execution of the 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;

b. The petitioners did not challenge the issuance of the Proclamations

under Section 92 of the Jammu and Kashmir Constitution and Article 356

21
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;

c. The exercise of power by the President after the Proclamation under

Article 356 is issued is subject to judicial review. The 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 fide 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;

d. 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;

e. 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;

f. 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

22
Constituent Assembly to make its recommendations ceased to exist. It did

not affect the power held by the President under Article 370(3);

g. 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 modified 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 modifies

Article 370, in effect, without following the procedure prescribed to modify

Article 370. An interpretation clause cannot be used to bypass the

procedure laid down for amendment;

h. The exercise of power by the President under Article 370(1)(d) to

issue CO 272 is not mala fide. The President in exercise of power under

Article 370(3) can unilaterally issue a notification 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 effect as an exercise of

power under Article 370(3) for which the concurrence or collaboration with

the State Government was not required;

i. 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

23
India to the State of Jammu and Kashmir is valid. Such an exercise of

power is not mala fide merely because all the provisions were applied

together without following a piece-meal approach;

j. The President had the power to issue a notification declaring 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;

k. 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; and\

l. The views of the Legislature of the State under the first proviso to

Article 3 are recommendatory. Thus, Parliament’s exercise of power

under the first proviso to Article 3 under the Proclamation was valid and

not mala fide.

m. 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 we do not find it necessary to

determine whether the reorganisation of the State of Jammu and Kashmir

24
into two Union Territories of Ladakh and Jammu and Kashmir is

permissible under Article 3. However. we uphold the validity of the

decision to carve out the Union Territory of Ladakh in view of Article 3(a)

read with Explanation I which permits forming a Union Territory by

separation of a territory from any State.

n. We direct that steps shall be taken by the Election Commission of

India to conduct elections to the Legislative Assembly of Jammu and

Kashmir constituted under Section 14 of the Reorganisation Act by 30

September 2024. Restoration of statehood shall take place at the earliest

and as soon as possible.

25