Draft:In re article 370 of the constitution

In re: article 370 of the constitution
Court	Supreme Court of India
Full case name	In re: article 370 of the constitution
Decided	11 December 2023
Citation	A2023 INSC 1058
Court membership
Judges sitting	Dhananjaya Y. Chandrachud (Chief Justice), S.K. Kaul , Sanjiv Khanna, B.R. Gavai, Surya Kant

In re: Article 370 of the Constitution of India case also known as Article 370 Abrogation Case was a landmark legal case decided by the Supreme Court of India in 2023. The case centered on the constitutional validity of actions taken by the Government of India in August 2019 to effectively abrogate Article 370 of the Indian Constitution, which had granted special status to the state of Jammu and Kashmir.

Background

Article 370, enacted in 1949, provided Jammu and Kashmir with a special status within the Indian Union, allowing it to have its own constitution, a separate flag, and autonomy over internal administration, except in matters of defense, foreign affairs, and communications. On August 5, 2019, the President of India issued Constitutional Order 272, which applied all provisions of the Indian Constitution to Jammu and Kashmir and modified Article 367. The following day, Constitutional order 273 was issued, declaring Article 370 inoperative. Concurrently, the Indian Parliament passed the Jammu and Kashmir Reorganisation Act, 2019, bifurcating the state into two Union Territories: Jammu and Kashmir (with a legislative assembly) and Ladakh (without a legislative assembly).

Legal Challenge

These actions were immediately challenged in the Supreme Court through multiple petitions filed by various individuals, political parties, and civil society organizations. A five-judge Constitution Bench, led by Chief Justice D.Y. Chandrachud, was formed to hear the case.

Key Issues

The main issues before the court were:

• Whether Jammu and Kashmir possessed sovereignty separate from India
• Whether Article 370 was a temporary or permanent provision
• The validity of Constitutional Orders 272 and 273
• The constitutionality of the Jammu and Kashmir Reorganisation Act, 2019
• The legality of actions taken during President's Rule

Decision

The court held that Jammu and Kashmir did not possess separate sovereignty. It reasoned that the Instrument of Accession signed by Maharaja Hari Singh in 1947 and subsequent proclamations indicated full surrender of sovereignty to India. The court noted that the special status granted to Jammu and Kashmir was not indicative of sovereignty but was necessitated by the conditions in the state at the time of accession.

Nature of Article 370

The court ruled that Article 370 was a temporary provision. This interpretation was based on the article's placement in Part XXI of the Constitution (Temporary Provisions) and its marginal note indicating "temporary provisions". The court explained that Article 370 was introduced to serve both a transitional purpose and a temporary purpose in view of the special circumstances in the state.

Validity of Constitutional Orders

The court upheld the validity of both Constitutional Order 272 and Constitutional Order 273. For Constitutional Order 272, it reasoned that the President had the power to apply all provisions of the Constitution to Jammu and Kashmir under Article 370(1)(d) without requiring the State government's concurrence during President's rule. The court held that the principle of consultation and collaboration between the Union and the State was not required in this case, as the effect of applying all provisions of the Constitution to Jammu and Kashmir was equivalent to issuing a notification under Article 370(3).

Regarding Constitutional Order 273, the court held that the President's power under Article 370(3) to declare the article inoperative was valid and did not require the Constituent Assembly's recommendation, as it had ceased to exist. The court viewed this as a culmination of the ongoing process of constitutional integration.

Constitutionality of the Reorganisation Act

The Jammu and Kashmir Reorganisation Act, 2019 was upheld as constitutional. The court noted that Article 3 of the Constitution permits the formation of new Union Territories. It also took into account the government's assurance that Jammu and Kashmir's status as a Union Territory is temporary and that statehood would be restored. The court directed the Election Commission to conduct elections for the Jammu and Kashmir Legislative Assembly by September 30, 2024, emphasizing that democratic processes should not be delayed until the restoration of statehood. This judgment marked a significant constitutional development in India, altering the status of Jammu and Kashmir and its relationship with the Union of India. It clarified the nature of Article 370 and set precedents for the interpretation of similar constitutional provisions in the future.

Significance

This judgment marked a significant constitutional development in India, altering the status of Jammu and Kashmir and its relationship with the Union of India. It provided clarity on the nature of Article 370, the extent of presidential powers in modifying constitutional provisions, and the Parliament's authority in reorganizing states.

See Also

• Article 370 of the Constitution of India
• Jammu and Kashmir Reorganisation Act, 2019
• Special status of Jammu and Kashmir