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2023 INSC 1058
IN THE SUPREME COURT OF INDIA^ Reportable ORIGINAL WRIT / APPELLATE JURISDICTION Writ Petition (Civil) No. 1099 of 2019
IN RE: ARTICLE 370 OF THE CONSTITUTION
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J U D G M E N T
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents A. Background ................................................................................................... 8
B. Reference .................................................................................................... 14
C. Submissions ............................................................................................... 17
i. Submissions of the petitioners.............................................................. 18 ii. Submissions of the Union of India ........................................................ 45
D. Issues .......................................................................................................... 59
E. Analysis ....................................................................................................... 61
i. The State of Jammu and Kashmir did not possess sovereignty ........ 61 a. The meaning of sovereignty .................................................................. 62 b. The history of the Union of India and Jammu and Kashmir................... 66 c. Neither the constitutional setup nor any other factors indicate that the State of Jammu and Kashmir retained an element of sovereignty ............... 94
ii. The Constitutional validity of the Proclamations issued under Article 356 of the Constitution of India and Section 92 of the Constitution of Jammu and Kashmir .................................................................................... 112
iii. Limitations on the exercise of power by President or Parliament under Article 356 .......................................................................................... 115
a. Presidential Proclamation under Article 356 .......................................... 116 b. Interpreting Article 356 in the aftermath of SR Bommai ......................... 120 c. SR Bommai on validity of exercise of power after the Proclamation ... 127 d. Interpretation of Part XVIII ................................................................... 134 I. Comparison of executive power held by the President under Articles 352 and 356 ............................................................................................ 135 II. Interpretation of Article 356 .............................................................. 139 III. The argument of ‘irrevocability’: Interpreting Article 357(2) and Krishna Kumar Singh ........................................................................................... 145 IV. The distinction between legislative and constitutional functions of the Legislature .............................................................................................. 152 e. The standard to assess actions taken under Article 356 after the issuance of Proclamation ........................................................................................... 160
iv. Article 370: a temporary provision? .................................................... 160 a. The historical context to Article 370..................................................... 160 I. Accession of Jammu and Kashmir................................................... 161 II. The constitutional integration of Indian States ................................. 176
IV. The validity of modification of Article 367......................................... 265 V. Previous Constitutional Orders which modified Article 367 ............. 278 b. Applying the entire Constitution to Jammu and Kashmir through exercise of power under Article 370(1)(d) ................................................................. 288 c. Securing the concurrence of the Union Government under the second proviso to Article 370(1)(d) ......................................................................... 290
vii. The Challenge to CO 273 ...................................................................... 295 viii. The status of the Constitution of Jammu and Kashmir ................. 318 ix. The challenge to the Reorganisation Act on substantive grounds .. 321 a. The constitutional history of States and Union territories and the reason for the existence of Article 3 ....................................................................... 323 b. The contours of the power under Article 3........................................... 326 I. Federalism, representative democracy, and the significance of States 326 II. The reason for the creation of Union territories ............................... 330 III. The journey of Union territories: 1956 to 2023................................. 335 IV. The scope of Article 3 ...................................................................... 337 x. The Challenge to the Reorganization Act on procedural grounds ... 343 a. Parliament’s exercise of power under the first proviso to Article 3 ...... 343 b. Suspension of the second proviso to Article 3 as applicable to Jammu and Kashmir ............................................................................................... 347
F. Conclusion ................................................................................................ 348
PART A
- This judgment is enriched by the discussions with my distinguished colleagues - Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Bhushan R Gavai and Justice Surya Kant - during the course of oral arguments and thereafter. Their inputs to the judgment have led to a synthesis of thought resulting in a unanimous outcome. We record our deep appreciation for the scholarship of senior counsel during the course of arguments and in the written briefs, assisted by an able team of junior counsel.
A. Background
- Article 370 of the Constitution of India incorporated special arrangements for the governance of the State of Jammu and Kashmir. The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b). These orders have the effect of applying the entire Constitution of India to the State of Jammu and Kashmir and abrogating Article 370. Contemporaneously, Parliament enacted the Jammu and Kashmir Reorganisation Act 2019^1 which bifurcated the State into two Union territories. The petitioners have challenged the constitutionality of these actions.
- The State government in Jammu and Kashmir was formed by an alliance of the Peoples’ Democratic Party^2 with the Bharatiya Janata Party in 2015. The Chief Minister of the State, Ms Mehbooba Mufti, belonging to the PDP,
(^12) “Reorganisation Act”“PDP”
PART A
c. The first proviso and second provisos to Article 3 of the Constitution stand suspended.
- The Proclamation was approved by the Lok Sabha on 28 December 2018 and by the Rajya Sabha on 3 January 2019. On the same day, the President issued another order stating that the functions of the Government of the State and the powers vested in the Governor which shall be exercisable by the President in view of the above Proclamation shall be exercisable also by the Governor subject to the superintendence, direction, and control of the President.
- The extension of President’s rule was approved by the Lok Sabha on 28 June 2019 and by the Rajya Sabha on 1 July 2019. President’s rule was extended on 3 July 2019. The duration of President’s rule in terms of Article 356(4) in its application to the State of Jammu and Kashmir was six months after the second of the resolutions was passed by the Rajya Sabha on 3 July 2019.
- On 5 August 2019, the President issued CO 272, the Constitution (Application to Jammu and Kashmir) Order 2019. By the CO, the President in exercise of powers under Article 370(1), applied: a. All the provisions of the Constitution of India by superseding all previous Constitution Orders by which select provisions of the Constitution were made applicable to Jammu and Kashmir either with or without modifications; and
PART A
b. Article 367(4) in which a modification was made, changing the term “Constituent Assembly” in the proviso to Article 370(3) to “Legislative Assembly.”
- On 5 August 2019, Parliament undertook the following exercise in its capacity as the legislature of the State, since the Proclamation under Article 356 was subsisting: a. The Rajya Sabha recommended to the President under Article 370(3) that all clauses of Article 370 shall cease to operate: “That this House recommends the following public notification to beissued by the President of India under Article 370 (3): '
In exercise of the powers conferred by Clause (3) of article 370 readwith clause (1) of article 370 of the Constitution of India, the President, on the recommendation of the Parliament, is pleased todeclare that, as from [date], all clauses of the said article 370 shall cease to be operative except clause (1) thereof which shall read asunder, namely:
"All provisions of this Constitution, as amended from time to time,without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained inarticle 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir orany law, document, judgement, ordinance, order, bye-law, rule, regulation; notification, custom or usage having the force of law inthe territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.” b. Simultaneously, the Rajya Sabha expressed its views on the Jammu and Kashmir Reorganisation Bill 2019^3 which was sent to the House under the proviso to Article 3, in the following terms :
(^3) “Reorganisation Bill”
PART A
(1) of article 370 of the Constitution of India, the President, on therecommendation of the Parliament, is pleased to declare that, as from the date on which the President of India signs the Declarationand published in the official Gazette, all clauses of the said article 370 shall cease to be operative except clause (1) thereof which shallread as under; namely:-
"All provisions of this Constitution; as amended from time to time,without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained inarticle 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir orany law, document, judgement, ordinance, order, bye-law, rule, regulation; notification, custom or usage having the force of law inthe territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise." b. The Lok Sabha passed the Reorganisation Act.
- Both Houses of Parliament passed the Reorganisation Bill (after expressing their views in favour of such an exercise as stipulated in the proviso to Article
- bifurcating the State of Jammu and Kashmir into: a. the Union Territory of Jammu and Kashmir with the Legislative Assembly; and b. the Union Territory of Ladakh without the Legislative Assembly.
- The Appendix to the Reorganisation Bill contained a Schedule listing out central legislations enacted under the Union List and the Concurrent List by Parliament which would thereafter be applicable to the two Union Territories. Amendments have also been carried out to existing state legislations to bring them in conformity with the Constitution.
PART B
- On 6 August 2019, pursuant to the recommendation by the Lok Sabha, the President of India issued CO 273 under Article 370(3) of the Constitution as amended by CO 272 by which Article 370 ceased to apply with effect from 6 August 2019. On 9 August 2019, the Union Ministry of Home Affairs issued a notification, S.O. 2889 (E), in exercise of the powers conferred by Section 2(a) of the Reorganisation Act bringing the provisions of the Act into force with effect from 31 October 2019 following Presidential assent. Pursuant to this notification, the State of Jammu and Kashmir stood bifurcated on 31 October 2019 into the Union Territory of Ladakh and the Union Territory of Jammu and Kashmir. President’s rule was revoked.
B. Reference
- On 19 August 2019, the jurisdiction of this Court was invoked under Article 32 of the Constitution in Dr Shah Faesal v. Union of India.^5
- When a batch of petitions challenging the constitutional validity of CO 272 and CO 273 came before a Constitution Bench, the petitioners sought a reference to a larger bench. The submission was that in Prem Nath Kaul v. State of Jammu & Kashmir ,^6 a Constitution Bench had held that Article 370 was temporary in nature. According to counsel, subsequently in Sampat Prakash v. State of Jammu & Kashmir ,^7 another Constitution Bench held (without
(^56) Writ Petition (c) No. 1099 of 20191959 Suppl (2) SCR 270 (^7) (1969) 2 SCR 365
PART B
considerationcase [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] ?” the decision of the Court in Prem Nath Kaul
- The Constitution Bench, while rejecting the plea for a reference to a larger Bench, adduced three reasons which emerge from the extract of the judgment set out below: “42. First, it is worth highlighting that judgments cannot be interpretedin a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them aparticular meaning. The Court in Prem Nath Kaul case [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] had to determine the legislativecompetence of the Yuvaraj, in passing a particular enactment. The enactment was passed during the interregnum period, before theformulation of the Constitution of State of Jammu and Kashmir, but after coming into force of the Constitution of India. The observations madeby the Constitution Bench in this case, regarding the importance given to the decision of the Constituent Assembly of the State of Jammu andKashmir needs to be read in the light of these facts”
- Second, the framework of Article 370(2) of the Indian Constitutionwas such that any decision taken by the State Government, which was not an elected body but the Maharaja of the State acting on the adviceof the Council of Ministers which was in office by virtue of the Maharaja's proclamation dated 5-3-1948, prior to the sitting of theConstituent Assembly of the State, would have to be placed before the Constituent Assembly, for its decision as provided under Article 370(2)of the Constitution. The rationale for the same is clear, as the task of the Constituent Assembly was to further clarify the scope and ambit ofthe constitutional relationship between the Union of India and the State of Jammu and Kashmir, on which the State Government as definedunder Article 370 might have already taken some decisions, before the conveningAssembly in its wisdom, might ultimately not agree with. Hence, the of the Constituent Assembly, which the Constituent Court in Prem Nath Kaul [Prem Nath Kaul v. State of J&K, AIR 1959SC 749] indicated that the Constituent Assembly's decision under Article 370(2) was final. This finality has to be read as being limited tothose decisions taken by the State Government under Article 370 prior to the convening of the Constituent Assembly of the State, in line with thelanguage of Article 370(2).
- Third, the Constitution Bench in Prem Nath Kaul case [PremNath Kaul v. State of J&K, AIR 1959 SC 749] did not discuss the continuation or cessation of the operation of Article 370 of the
PART C
Constitution after the dissolution of the Constituent Assembly of theState. This was not an issue in question before the Court, unlike in Sampat Prakash case [Sampat Prakash v. State of J&K, AIR1970 SC 1118] where the contention was specifically made before, and refuted by, the Court. This Court sees no reason to readinto Prem Nath Kaul case [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] an interpretation which results in it being in conflictwith the subsequent judgments of this Court, particularly when an ordinaryinterpretation.” reading of the judgment does not result in such an
C. Submissions
- Mr Kapil Sibal, Dr Gopal Subramanium, Mr Zafar A Shah, Dr Rajeev Dhavan, Mr Dushyant Dave, Mr Shekar Naphade, Mr Dinesh Dwivedi, Mr CU Singh, Mr Sanjay Parikh, Mr PC Sen, Ms Nitya Ramakrishnan, Dr Menaka Guruswamy, Mr Muzaffar H Baig, and Mr Gopal Sankaranarayanan appeared for the petitioners. Mr Manish Tiwari, and Mr Warisha Farasat also appeared for the petitioners. Mr Irfan Hafeez Lone and Dr Zahoor Ahmad Bhat were the parties in person.
- Mr R Venkataramani, Attorney General, Mr Tushar Mehta, Solicitor General; Mr. Harish Salve, Mr Rakesh Dwivedi and Mr V Giri, Mr Mahesh Jethmalani, Mr Gurukrishna Kumar, Mr Ravindra Kumar Raizada, Mr Bimal Jod senior counsel; Mr KM Nataraj and Vikramjit Banerjee, Additional Solicitor Generals appeared on behalf of the respondents. Mr. Kanu Agrawal, Ms Archana Pathak Dave, Mr VK Biju, Mr Vikram Sharma, Dr Aniruddha Rajput, Mr DV Raina, Mr Rahul Tanwani, Mr Eklavya Dwivedi, Mr Rajesh Bhushan, and Dr Charu Mathur also appeared for the respondents.
PART C
President were all political stratagems to achieve outcomes that are unconstitutional.^14
- The President’s Proclamation under Article 356 dated 19th December 2018 is void ab initio for the following reasons: a. After the Proclamation under Section 92, the Proclamation under Article 356 was issued by the President. This was also without basis as the report of the Governor showing the failure of constitutional machinery was not placed before Parliament^15. The debates in the Lok Sabha and the Rajya Sabha show that the motion approving the Proclamation was passed without debate and without the Governor’s report^16 ; and
b. A unilateral exercise of the powers under Article 356 sets a dangerous precedent and raises the apprehension that such a treatment can be extended to any other state of the country in the exercise of emergency powers under the Constitution. It renders the federal structure susceptible to the whims of the political party in power. It can also be used to undermine the special provisions under the Constitution designated for the special interests of the North-Eastern States of India.^17
(^1415) Rejoinder on behalf of Mr. Kapil Sibal Sr. Advocate.Written Submissions of Mr. Dushyant Dave, Senior Advocate; S.R. Bommai vs Union of India (1994) 3 SCC 1. (^1617) Submissions By Dr. Rajeev Dhavan, Senior Advocate.Written Submissions on behalf of Impleader by Manish Tewari & Mr. Abhimanyu Tewari, Advocate.
PART C
- The impugned actions taken when the Proclamation issued under Article 356 was in force are void. There are limits on the exercise of power by the President after the issuance of a Proclamation for the following reasons: a. Once the Legislative Assembly of the State is dissolved, as was the case in the state, after the Proclamation of Governor’s rule, there was no occasion for the President to exercise the power under Article 356. This renders the Proclamation dated 19 December 2018 and all consequential actions – the impugned COs and suspension of the second proviso to Article 3 applicable to the State of Jammu and Kashmir void ab initio^18 ; b. The purpose of Article 356 is to restore governance in the State.^19 Article 356 is housed in Part XVIII of the Constitution of India- which deals with ‘Emergency provisions’. The President must be satisfied that the government cannot be carried out in accordance with “this Constitution”. The emphasis on “this” indicates the nature of the power. The object of the exercise is to ensure that constitutional government is possible in the state^20 ; c. Article 357(2) stipulates that the laws made by the President or the Parliament, in the exercise of the power of the state legislature, shall continue, after the Proclamation has ceased to operate, until altered or
(^18) Petitioners, Mr Shekhar Naphade, Senior Advocate; Written Submissions By Sh. Sanjay Parikh, Senior Advocate; (^) Thiru K.N. Rajagopal v. Thiru M. Karunanidhi, (1972) 4 SCC 733 [5 Judges], Submissions on Behalf of The Written Submissions of Gopal Sankaranarayanan, Senior Advocate on Behalf of the Petitioner; Rejoinder on behalfof Mr. Kapil Sibal Sr. Advocate. (^1920) SR Bommai (Paras 108,113, 288, 289),Outline of Submissions on Behalf of the Petitioners by Raju Ramachandran, Senior Advocate.
