In Re: Article 370 of the Constitution, (2023) 16 SCC 1

Introduction

In December 2023, the Supreme Court of India delivered its much-awaited verdict in [1]In Re: Article 370 of the Constitution, (2023) 16 SCC 1, upholding the constitutional validity of the abrogation of Article 370 by the Union Government in August 2019.
This landmark case involved complex questions about federalism, constitutional permanence, democratic representation, and the scope of Presidential power under Article 370 itself.

The judgment, delivered by a Constitution Bench led by Chief Justice Dr. D.Y. Chandrachud, not only addressed the legality of the abrogation but also articulated deeper constitutional principles, reaffirming the supremacy of the Parliament in restructuring statehood and clarifying the nature of Article 370 as a temporary provision.

Background and Facts

Article 370 was incorporated into the Constitution of India in 1949 to recognise the special status of the erstwhile State of Jammu and Kashmir (J&K). It allowed the state to have its own Constitution, limited the Union Parliament’s legislative competence, and provided for a unique mechanism under which provisions of the Indian Constitution could be extended to J&K with the concurrence of the State Government.

On 5 August 2019, the President of India issued [2]Constitution (Application to Jammu and Kashmir) Order C.O. 272, superseding the earlier 1954 Order. This Order extended all provisions of the Constitution to J&K, rendering Article 370 ineffective.

Simultaneously, the [3]Jammu and Kashmir Reorganisation Act, 2019, was passed, which reorganised the State of J&K into two Union Territories: Jammu & Kashmir, and Ladakh.

Multiple petitions were filed challenging:

1. [4]The constitutional validity of C.O. 272 and the subsequent Declaration under Article 370(3) making Article 370 inoperative.
2. The legality of reorganisation of the State into Union Territories.

These petitions raised profound questions about the relationship between the Union and States, democratic representation, and constitutional processes.

Issues Before the Court

The Supreme Court framed and addressed the following principal legal issues:

1. Whether Article 370 was a temporary provision, and if it could be abrogated unilaterally by the President.
2. Whether the exercise of power under Article 370(3) in the absence of the J&K Constituent Assembly was constitutionally valid.
3. Whether the substitution of “Constituent Assembly” with “Legislative Assembly” in Article 370(3) by Presidential Order was lawful.
4. Whether the Jammu and Kashmir Reorganisation Act, 2019 constitutionally reorganising the state into two Union Territories violated Article 3 of the Constitution.
5. Broader implications for federalism and constitutionalism.

Petitioners’ Arguments

Permanence of Article 370

• The petitioners argued that Article 370 had become permanent after the dissolution of the J&K Constituent Assembly in 1957.
• According to them, the power under Article 370(3) to declare Article 370 inoperative could only have been exercised prior to the dissolution of the Constituent Assembly.
• Post-1957, the President’s power under Article 370(3) ceased to exist.

Democratic Process

• [5]The abrogation lacked democratic legitimacy since it was done without the consent of an elected Legislative Assembly; at the relevant time, the state was under President’s Rule.
• The petitioners contended that replacing “Constituent Assembly” with “Legislative Assembly” via C.O. 272 was ultra vires, as it effectively amended Article 370 itself.

Federalism and Statehood

• Converting a full-fledged state into Union Territories under the Reorganisation Act violated the federal structure.
• Article 3 of the Constitution, though permitting reorganisation, could not be used to downgrade statehood without the consent of its people.

Respondents’ Arguments (Union of India)

Temporary Nature of Article 370

• Article 370 was always meant to be temporary, as evident from its title (“Temporary provisions with respect to the State of Jammu and Kashmir”).
• Its continued existence contradicted the process of constitutional integration.

Presidential Power

• The power under Article 370(3) to declare Article 370 inoperative was not extinguished by the dissolution of the Constituent Assembly.
• The President could exercise this power, particularly when the state was under President’s Rule and legislative powers vested in Parliament.

National Integration and Security

• The abrogation was essential for integrating J&K with the rest of India, ensuring uniformity of rights and laws.
• The reorganisation into Union Territories was justified under Article 3 to address security concerns.

Analysis and Judgment

The Supreme Court, in a unanimous verdict, upheld the validity of the abrogation of Article 370 and the reorganisation of the State.

Article 370 as Temporary

The Court held that Article 370 was indeed a temporary provision despite its long usage, as indicated by its placement under Part XXI and the express wording of the heading.

It observed that Article 370 was transitional, designed to facilitate the integration of J&K until its Constituent Assembly adopted a Constitution and made a final recommendation.

The absence of such a recommendation did not freeze Article 370 indefinitely.

Validity of Presidential Order

The Court upheld the validity of C.O. 272, which applied all provisions of the Indian Constitution to J&K.

It held that:

• The power under Article 370(1)(d) to apply constitutional provisions could be exercised even when the state was under President’s Rule, as legislative powers of the Assembly vested in Parliament under Article 356.
• Substituting the “Constituent Assembly” with the “Legislative Assembly” was lawful, given the constitutional vacuum left after the dissolution of the Constituent Assembly.

Power under Article 370(3)

The Court ruled that the power to declare Article 370 inoperative under Article 370(3) was not extinguished after 1957.

Since Parliament had the power to act as the Legislative Assembly under President’s Rule, the President could exercise power under Article 370(3) with the “recommendation” deemed to have come from Parliament.

Reorganisation under Article 3

The Court upheld the Jammu and Kashmir Reorganisation Act, 2019, observing:

• Article 3 empowers Parliament to reorganise states and alter boundaries.
• The conversion of a state into a Union Territory is permitted, especially considering the unique security situation.
• However, the Court recommended that statehood for Jammu & Kashmir should be restored at the earliest possible opportunity.

Key Doctrinal Contributions

1. Interpretation of Temporary Provisions

The judgment clarified that a provision’s placement in Part XXI and the title may strongly suggest temporariness, even if not explicitly time-bound.

2. Federalism vs. National Integration

The Court reaffirmed that India’s federalism is “cooperative and flexible”, permitting the Union greater power to reorganise states for national integration.

3. Doctrine of Constitutional Silence

The judgment used the doctrine of constitutional silence to justify substituting the Constituent Assembly with the Legislative Assembly, filling the constitutional vacuum left after 1957.

4. Role of President’s Rule

[6]It clarified that under Article 356, when the Assembly is dissolved, Parliament can validly recommend constitutional changes under Article 370.

Critical Appraisal

While the judgment is doctrinally consistent with the text and structure of the Constitution, it raises questions:

• The reasoning arguably broadens the President’s powers under Article 370 beyond what was originally envisaged.
• Critics argue it underplays the democratic deficit, as the abrogation occurred during President’s Rule without an elected Assembly.
• The decision arguably prioritises national integration over asymmetric federalism, which had historically protected J&K’s distinctiveness.

Nonetheless, the Court balanced this by recommending the restoration of democratic governance.

Impact and Significance

• Legally, the judgment cements Parliament’s supremacy in matters of reorganisation and integration.
• Politically, it paves the way for complete constitutional assimilation of Jammu and Kashmir.
• Doctrinally, it will influence future debates on special status, asymmetry and federalism.

It also closes a long-standing constitutional debate about Article 370’s permanence.

Conclusion

In Re: Article 370 is among the most consequential judgments of recent years.
It addresses the tension between democracy, federalism and national unity, ultimately siding with integration, while acknowledging the need for restoring statehood and democratic institutions.

Though not free from criticism, the judgment redefines the contours of Indian federalism and underlines the Court’s role as an interpreter of constitutional history.

Bibliography

In Re: Article 370 of the Constitution, (2023) 16 SCC 1 (India).

1. Constitution of India (1950).
2. Jammu and Kashmir Reorganisation Act, 2019, No. 34, Acts of Parliament, 2019 (India).
3. Constitution (Application to Jammu and Kashmir) Order, 2019, C.O. 272.
4. S.P. Sathe, Judicial Activism in India (2d ed. 2002).
5. Rajeev Dhavan, The Constitution of India: A Contextual Analysis (2021).
6. Arun K. Thiruvengadam, “Article 370: Law, Politics and the Future,” 5 Indian L. Rev. 101 (2023).

[1] In Re: Article 370 of the Constitution, (2023) 16 SCC 1 (India).

[2] Constitution (Application to Jammu and Kashmir) Order, 2019, C.O. 272.

[3] Jammu and Kashmir Reorganisation Act, 2019, No. 34, Acts of Parliament, 2019 (India).

[4] Arun K. Thiruvengadam, “Article 370: Law, Politics and the Future,” 5 Indian L. Rev. 101 (2023).

[5] Rajeev Dhavan, The Constitution of India: A Contextual Analysis (2021).

[6] S.P. Sathe, Judicial Activism in India (2d ed. 2002).