ANALYSIS
THE FINAL D
JUDGEMENT
SUPREME COURT’S LANDMARK JUDGEMENT HAS UPHELD
THE ABROGATION OF ARTICLE 370 WHILE RULING THAT
ARTICLE 370 WAS A TEMPORARY PROVISION, AND ITS
LARGER PURPOSE WAS THE COMPLETE INTEGRATION OF
J&K WITH THE REST OF INDIA. THE 5-JUDGE BENCH ALSO
HELD THAT THE PROCESS ADOPTED TO REORGANISE J&K
INTO UNION TERRITORIES IS VALID
ADITYA KASHYAP
Advocate, practising at the Supreme
Court of India & Delhi High Court
6 December 24, 2023
ecember 11, 2023 marks a red#letter
day in the annals of Indian
Judiciary, when a 5#Judge
Constitution Bench of the Supreme
Court led by Chief Justice D Y Chandrachud
passed a unanimous verdict running into 476
pages, upholding the constitutionality of the
abrogation of Article 370. This article analyses
the background of the abrogation, the case
before the Court, the issues, and the findings of
the Court.
BACKDROP: ABROGATION OF ARTICLE 370
Article 370 of the Constitution was introduced
to serve two purposes – first, a transitional
purpose, as an interim arrangement until the
Constituent Assembly of the State was formed
and could ratify the Constitution; and second,
the temporary purpose, as an interim
arrangement because of the circumstances
arising out of the war being faced by the State.
Due to Article 370, many provisions of the
Constitution of India did not apply to the
State of Jammu & Kashmir. On August 5,
2019, the Union government under the
leadership of Prime Minister Narendra
Modi abrogated Article 370 and made
Dr. Shyama Prasad Mukherjee’s
resolve of ‘One Nation, One Law
and One Head of the nation’ a
reality after 70 years of
Independence.
DURING THE SUBSISTENCE OF
PRESIDENT’S RULE IN THE
 ARTICLE 370

STATE, UNDER A PROCLAMATION UNDER ARTICLE 356(1)(B) the case from November 14, 2019. The petitioners sought
the case to be placed before a larger Bench which was
VESTING THE POWERS OF STATE LEGISLATURE IN PARLIAMENT, rejected by the 5#judge Bench on March 2, 2020.
THE PRESIDENT ISSUED THE CONSTITUTION (APPLICATION TO On July 3, 2023, the Supreme Court listed the matter to
JAMMU AND KASHMIR) ORDER 272 ON AUGUST 5, 2019, BY a Constitution Bench led by Chief Justice D.Y.
VIRTUE OF WHICH THE ENTIRE CONSTITUTION OF INDIA WAS Chandrachud. The Bench began hearing the case from
August 2, 2023, and the arguments went on for 16 days until
MADE APPLICABLE TO THE STATE, AND ‘J&K CONSTITUENT September 5, 2023 when the argument concluded and
ASSEMBLY’ WOULD BE READ AS ‘J&K LEGISLATIVE ASSEMBLY’. judgement was reserved.
On the same day, the Rajya Sabha passed a statutory
resolution under Article 370(3) recommending the ARGUMENTS AGAINST ABROGATION OF ARTICLE 370
President to scrap Article 370, which was followed by the The petitioners’ arguments can be broadly categorised as:
passing of the said resolution by the Lok Sabha the next first, pertaining to the constitutionality of the presidential
day. Pursuant to the recommendation by Parliament, on orders abrogating Article 370, and second, challenging the
August 6, 2019, the President issued the Constitution bifurcation of the State of Jammu and Kashmir into two
(Application To Jammu and Kashmir) Order 273, vide Union Territories.
which all clauses of Article 370 ceased to The petitioners alleged that in effect the
operate, except Clause 1 which was amended President indirectly amended Article 370
to state that the Constitution of India applies JUSTICE KAUL, IN THE without the concurrence of the Constituent
wholly to the State of Jammu and Kashmir. CONCLUDING PAGES OF Assembly of Jammu and Kashmir, by
The Parliament also passed the Jammu substituting the term ‘constituent assembly’
and Kashmir Reorganisation Act, 2019,
HIS JUDGEMENT, with ‘legislative assembly’. This, according
bifurcating the State of Jammu and Kashmir PENNED AN EMOTIONAL to them, invoked the ‘doctrine of colourable
into two Union Territories – the UT of J&K EPILOGUE AND legislation’ which means that ‘what cannot
with Legislative Assembly and UT of Ladakh be done directly, cannot be done indirectly’,
without Legislative Assembly. On 9 August
RECOMMENDED THAT and was thus unconstitutional and
2019, the Union Ministry of Home Affairs THE GOVERNMENT SET impermissible.
issued a notification, S.O. 2889 €, in exercise UP A “TRUTH AND The validity of Jammu and Kashmir
of the powers conferred by Section 2(a) of Reorganisation Act, 2019 was assailed on the
the Reorganisation Act bringing the
RECONCILIATION basis of its unconstitutionality with respect
provisions of the Act into force with effect COMMISSION” to Article 3 of the Constitution, which
from 31 October 2019 following Presidential empowers Parliament to create new States
assent. Pursuant to this notification, the and alter or modify the boundaries of
State of Jammu and Kashmir stood bifurcated into the existing states. It was argued that Article 3 does not give the
Union Territory of Ladakh and the Union Territory of Parliament powers to downgrade a state into Union
Jammu and Kashmir. Territory. The bifurcation was also challenged with respect
to autonomous self#government, which the petitioners
CHALLENGE BEFORE THE COURT claimed was a fundamental right which could not be taken
Petitioners including Manohar Lal Sharma, Shah Faesal, away without due procedure established by the law.
Shakir Shabir, Mohammed Akbar Lone and Hasnain On the other hand, the Union of India and intervenors
Masoodi, approached the Supreme Court by filing submitted that Article 370 was a “temporary” provision
petitions under Article 32 challenging the constitutionality inserted to ensure J&K’s integration into India. It was
of the dilution of Article 370 and the bifurcation of the State submitted that the President can abrogate the provisions
into two Union Territories. of Article 370 without the recommendation of the
On August 28, 2019, a 3#Judge Bench led by former CJI Constituent Assembly because of its dissolution in 1957,
Rajan Gogoi referred the case to a 5#Judge Constitution and the same could not limit the President’s plenary power
Bench. On October 1, 2019, a 5#Judge Constitution Bench to abrogate the provision, since the President was vested
of the Court comprising Justice N.V. Ramana, S.K. Kaul, R. with absolute discretion over Article 370.
Subhash Reddy, B.R. Gavai and Surya Kant decided to hear The Presidential Order solely intended to clarify the

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ANALYSIS

SALIENT POINTS OF THE JUDGMENT OF THE FIVE-

JUDGE CONSTITUTIONAL BENCH IN RE: ARTICLE 370
JAMMU AND KASHMIR DID NOT ENJOY ANY SHRED OF SOVEREIGNTY
n The Instrument of Accession gave no sovereignty to the state
n Proclamation of 25 November 1949 issued by Yuvraj Karan Singh made clear that Constitution of India would
prevail over the State Constitution
n Instrument of Accession lost its significance once Yuvraj Karan Singh issued the proclamation
n Relationship of the State with the Union of India was governed primarily by the Instrument of Accession and
the Proclamation. State Constitution was only to further define that relationship.
n The State Constitution coupled with Article 1 of the Constitution of India indisputably shows that the State
was subordinate to the Indian Constitution.

CONSTITUTIONAL VALIDITY OF C.O. 273

n Text and history demonstrate that Article 370 was a temporary provision. First, it was inserted for a transitional
purpose of ratifying the Indian Constitution. Second, it bore a temporary purpose of laying down an interim
arrangement because of the ongoing war in the State.
n President had the power to make Article 370 inoperative even after the dissolution of the State Constituent
Assembly. Constituent Assembly of the State was a temporary body set up for a specific and limited purpose of
framing the State Constitution. When the Constituent Assembly was dissolved, the other special circumstances
(war) of the State that led to the insertion of Article 370 continued. For these reasons, President retained his
powers to end Article 370
n Overall purpose of Article 370 was constitutional integration. It cannot be said that with the dissolution of the
State Constituent Assembly, the process of State’s integration with the Union of India was frozen. Such an
approach would be contrary to the very purpose of Article 370
n Ending Article 370 was a policy decision. Court cannot second#guess the decision of the President and the
special circumstances he considered when he de#operationalised Article 370

CONSTITUTIONAL VALIDITY OF C.O. 272

n Extension of the entire Constitution of India to the State of Jammu and Kashmir was a constitutionally valid
exercise of power
n The concurrence and consultation with the State Government is not needed when the Constitution of India is
extended to the State without any exception or modification. In other words, concurrence and consultation
would come into the picture only when a constitutional provision is applied to the State in a modified form.

STATUS OF THE CONSTITUTION OF JAMMU AND KASHMIR

n The wholesale application of the Constitution of India to the State of Jammu and Kashmir meant that
Constitution of State of Jammu and Kashmir was rendered completely inoperative.

CONSTITUTIONAL VALIDITY OF THE REORGANIZATION OF STATE OF JAMMU AND KASHMIR

n Question left open in view of the assurance of the Central Government that statehood would be restored to
Jammu and Kashmir and its status as UT is temporary.
n UT status of Ladakh to remain unaffected by the restoration of the statehood of Jammu and Kashmir.
n Status of Ladakh as a Union Territory is upheld. Article 3 permits the formation of a Union Territory.

8 December 24, 2023

 ARTICLE 370

ISSUE Justices D.Y. Justice S.K. Justice Sanjiv

Chandrachud CJI, B.R. Kaul Khanna
Gavai, and Surya Kant
Does J&K retain its sovereignty No
Yes No
post-accession?
Was Article 370 intended to be a
No
permanent provision? No No
Can the President abrogate Article
370 without the recommendation of Yes Yes Yes
the Constituent Assembly?
Is CO 272 valid? Partially, Yes Partially, Yes Partially, Yes
Is CO 273 valid? Yes Yes Yes
Can the President take irreversible
decisions during the proclamation of Yes Yes Yes
President’s Rule under Article 356?
Was the procedure of reorganisation Yes Yes
of J&K into two Union Territories Yes
constitutional?

meaning of “Constituent Assembly” to mean “Legislative
Assembly”. Previously, the Article 367 route was
successfully adopted to replace “Sadar#i#Riyasat” with
“Governor” in Article 370. It was further stated that in the
J&K historical context, the Constituent Assembly and the
Legislative Assembly are synonymous. When J&K did not
have a Legislative Assembly, its Constituent Assembly
assumed that role. Now, as J&K does not have a Constituent
Assembly, the Legislative Assembly could take on that role.
The Union submitted that the reorganisation of J&K into
two Union Territories was constitutional since the Union
has the power to reorganise under Article 3. Further, J&K
has retained its Legislative Assembly, and that the
complete statehood of the region will be restored
once the law#and#order situation in the region is returned
to normalcy.
JUDGMENT MATRIX
In the verdict spanning across 476 pages, CJI Chandrachud
authored his judgement for himself, for Justice B R Gavai
and Justice Surya Kant. Justice Kaul penned his concurring
opinion separately. Justice Sanjiv Khanna concurred with
both the judgments.
The judges unanimously upheld the abrogation of
Article 370 while ruling that Article 370 was a temporary
provision, and the larger purpose was the complete
integration of the state with the rest of India. It was
additionally held that no limitations can be imposed on
the President’s power under Article 356, to ensure that they
can tackle the complete breakdown of constitutional
machinery. They also held that the process adopted to
reorganise J&K into union territories is valid.
THE EPILOGUE
On a parting note, certain key remarks and rulings in the
judgement must be discussed – one by CJI Chandrachud
and another by Justice Kaul. The CJI, in his judgement,
directed that the statehood of Jammu and Kashmir be
restored as soon as possible, and directions were given to
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
September 30, 2024.
The Bench also held that the Constitution of J&K was
always subordinate to the Constitution of India. Under the
Constitution of J&K, only certain provisions of the Indian

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 ANALYSIS
Constitution applied to J&K. 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.
Justice Kaul began his judgement by tracing the history
of Kashmir back to Rishi Kashyap who created the valley of
Kashmir by draining the Satisar lake. Citing Nilamat Purana,
the oldest scripture of Aryan Saraswat Brahmins of Kashmir,
he referred to the Nagas as the first settlers, and that 5000
years ago Aryans originally settled on the banks of the Vedic
River Saraswati, moved to the Valley when the Saraswati
River dried up. The Valley has heritage and culture as a place
of learning, he observed # with one of the most respected
places of learning being the Sharda Peeth. He also referred
to the original population of Kashmir as being Brahmin,
along with other sects namely, Nishads, Khashas, Darads,
Bhauttas, Bhikshas, Damaras, Tantrins, etc, also prevalent
prior to the advent of Islam in the 14th century.
Justice Kaul, in the concluding pages of his judgement,
penned an emotional epilogue. He recommended that the
Union Government should set up a “Truth and
Reconciliation Commission” just like South Africa did in
its post#apartheid era. This Commission should be set up
expediently before memory escapes, and the exercise
should be time#bound. While acknowledging that to ask
the Union to set up the Commission was beyond the scope
of the Court, still he reasoned that transitional justice was
a facet of transformative constitutionalism and the
10 December 24, 2023
responsibility of both State and non#State actors
concerning human rights violations. While cautioning that
the Commission must not turn into a criminal court, he
recommended that the Commission should follow a
humanised and personalised process enabling people to
share what they have been through.
CONCLUSION
The Supreme Court, through its judgement, has upheld the
sovereignty and integrity of India, by recognising that
Article 370 was not permanent in nature. The historical day
of August 5, 2019 is etched in the hearts and minds of every
Indian, when our Parliament passed the historic decision
to abrogate Article 370. Since then, the people of Jammu,
Kashmir and Ladakh have witnessed manifold
transformation in their lives. The Constitution of India
along with all Central laws now apply to the people of the
J&K and Ladakh who were until now bereft of the
developmental benefits and welfare provisions
guaranteed by these laws.
As Justice Kaul concluded # “It is my sincere hope that
much will be achieved when Kashmiris open their hearts
to embracing the past and facilitate the people who were
compelled to migrate to come back with dignity”.
This verdict upholding the abrogation of Article 370 is
a glorious spot in the annals of Indian judiciary and will go
a long way in strengthening the spirit of ‘Ek Bharat,
Shreshtha Bharat’. n