Case: In Re: Article 370 of the Constitution

2023 INSC, 1058

Bench: Justice D Y Chandrachud, Justice B R Gavai, Justice Surya Kant, Justice Kishan Kaul, Justice Sanjiv Khanna

Introduction:

The judgment concerns the abrogation of Article 370 of the Indian Constitution, which granted Jammu and Kashmir special autonomous status. The Union government’s action to revoke this provision was challenged on constitutional grounds, with petitions filed under Article 32 of the Constitution. The core issue revolved around whether the presidential orders and the subsequent bifurcation of Jammu and Kashmir into Union Territories were constitutionally valid.

Facts of the Case:

On August 5 and 6, 2019, the Union government, through a series of presidential orders, revoked the special status of Jammu and Kashmir by abrogating Article 370. This action was facilitated by Presidential Orders C.O. 272 and C.O. 273, which amended the interpretation of Article 370 and allowed for the revocation without the approval of the Jammu and Kashmir Constituent Assembly. This led to the dissolution of the state's special status and its bifurcation into two Union Territories—Jammu and Kashmir, and Ladakh—through the Jammu and Kashmir Reorganisation Act, 2019. Several petitions were filed, challenging the constitutionality of the abrogation and the creation of the Union Territories, including petitions by Advocate Manohar Lal Sharma, Shakir Shabir, and leaders from the Jammu and Kashmir National Conference.

Issues:

1. Whether the presidential orders C.O. 272 and C.O. 273, which facilitated the revocation of Article 370, were constitutionally valid.

2. Whether the bifurcation of Jammu and Kashmir into two Union Territories through the Jammu and Kashmir Reorganisation Act, 2019, was constitutional.

3. Whether the action taken by the Union government violated the doctrine of federalism and the rights of Jammu and Kashmir’s people.

Observations:

The Court observed that the presidential orders and the amendment of Article 367 were in line with the Constitution’s provisions. The substitution of "Constituent Assembly" with "Legislative Assembly" was viewed as a technical interpretation to facilitate the abrogation, bypassing the original requirement of Constituent Assembly approval.

The Supreme Court ultimately upheld the constitutional validity of the presidential orders C.O. 272 and C.O. 273, which abrogated Article 370 and led to the bifurcation of Jammu and Kashmir into two Union Territories. The Court dismissed the petitions challenging the revocation of Article 370 and the creation of Union Territories.

• • The Court ruled that the presidential orders (C.O. 272 and C.O. 273) were valid. The substitution of "Constituent Assembly" with "Legislative Assembly" in Article 370 was seen as a permissible interpretation of the provision, which allowed the Union government to bypass the need for approval from the Jammu and Kashmir Constituent Assembly. The Court found no violation of the original intent of Article 370, given the amendments to the interpretation of the Constitution, which allowed the Union to take action under its constitutional powers.
• • The petitioners had argued that the abrogation of Article 370 violated the doctrine of colourable legislation, suggesting that the Union government had indirectly amended a constitutional provision that could not be directly amended without the Constituent Assembly's approval. However, the Court rejected this argument, asserting that the amendments were within the Union government's constitutional power. The interpretation of Article 370 was seen as consistent with the broader powers vested in the Union under the Constitution, and the changes were made transparently rather than indirectly.
• • The Court upheld the bifurcation of Jammu and Kashmir into two Union Territories—Jammu and Kashmir, and Ladakh. The decision was based on Parliament’s power under Article 3 to reorganize states and create new Union Territories. The Court concluded that this was within the constitutional powers of the Union Parliament, as reorganization was necessary for national security, governance, and administration. The right to self-government in a federal democracy was acknowledged, but the Court ruled that the power to reorganize states also lies with the Union government, especially in the context of the prevailing circumstances.
• • The Court took into account the national security concerns and the Union government’s role in ensuring the security and sovereignty of the country. The reorganization of Jammu and Kashmir and the removal of its special status were viewed as steps towards better integration and control, particularly in light of the prevailing security situation.

Implications:

The judgment has significant constitutional and political implications. It confirms the Union's power to amend provisions of the Constitution and reorganize states under its jurisdiction, even if it affects the autonomy historically granted to regions like Jammu and Kashmir. It also reaffirms the Union’s authority to impose changes in the governance structure of states under Article 3 of the Constitution. This ruling could impact the future relationship between the Union government and other states with special constitutional status, influencing debates on federalism, autonomy, and centralization in India.