# 2023 INSC 1058

- **Citation:** 2023 INSC 1058
- **Court:** Supreme Court of India
- **Decided:** 2023-12-11
- **Bench:** Dr. Dhananjaya Y Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2023-insc-1058-37166
- **Pages:** 376

## Headnote

Issues for consideration: 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) which orders had
the eff ect of applying the entire Constitution of India to the State of Jammu
and Kashmir and abrogating Article 370. Contemporaneously, the Parliament
enacted the Jammu and Kashmir Reorganisation Act 2019 which bifurcated
the State into two Union territories, namely, the Union Territory of Jammu
and Kashmir and the Union Territory of Ladakh. The petitioners challenged
the constitutionality of these actions. CO 272 was issued under Article
370(1)(d) and sought to amend clause (3) of Article 370. The petitioners
challenged CO 272 as being ultra vires Article 370(1)(d) on the grounds
that: a. It modifi ed Article 370, which could only be done on exercise of
power under Article 370(3); and b. Only the State Government may accord
"concurrence" to the President under the second proviso to Article 370(1)(d).
Further, the exercise of power under Article 370(3) in issuing CO 273 was
challenged. The questions for determination were:
a. Whether the provisions of Article 370 of the Constitution were
temporary in nature or whether they acquired a status of permanence in
the Constitution;
b. Whether the amendment to Article 367 of the Constitution in exercise
of the power under Article 370(1)(d) so as to substitute the reference to the
"Constituent Assembly of the State referred to in clause (3) of Article 370
by the words "Legislative Assembly of the State" was constitutionally valid;
Ed. Note: Hon'ble Dr. Dhananjaya Y Chandrachud, CJI pronounced the judgment of the
Bench comprising His Lordship, Hon'ble Mr. Justice B R Gavai and Hon'ble Mr Justice
Surya Kant, while Hon'ble Mr Justice Sanjay Kishan Kaul and Hon'ble Mr Justice Sanjiv
Khanna pronounced their separate judgments.
1
SUPREME COURT REPORTS
[2023] 16 S.C.R.
2
c. Whether the entire Constitution of India could have been applied to the
State of Jammu and Kashmir in exercise of the power under Article 370(1)(d);
d. Whether the abrogation of Article 370 by the President in exercise
of the power under Article 370(3) was constitutionally invalid in the absence
of a recommendation of the Constituent Assembly of the State of Jammu
and Kashmir as mandated by the proviso to clause (3);
e. Whether the proclamation of the Governor dated 20 June 2018 in
exercise of power conferred by Section 92 of the Constitution of Jammu
and Kashmir and the subsequent exercise of power on 21 November 2018,
under Section 53(2) of the Constitution of Jammu and Kashmir to dissolve
the Legislative Assembly were constitutionally valid;
f. Whether the Proclamation which was issued by the President under
Article 356 of the Constitution on 19 December 2018 and the subsequent
extensions were constitutionally valid;
g. Whether the Jammu and Kashmir Reorganisation Act 2019 by which
the State of Jammu and Kashmir was bifurcated into two Union Territories
(Union Territory of Jammu and Kashmir and Union Territory of Ladakh)
was constitutionally valid bearing in mind: (i) The fi rst proviso to Article 3
which requires that a Bill aff ecting the area, boundaries or name of a State
has to be referred to the legislature of the State for its views; and (ii.) The
second proviso to Article 3 which requires the consent of the State legislature
for increasing or diminishing the area of the State of Jammu and Kashmir
or altering the name of boundary of the State before the introduction of the
Bill in Parliament;
h. Whether during the tenure of a Proclamation under Article 356,
and when the Legislative Assembly of the State is either dissolved or is
in suspended animation the status of the State of Jammu and Kashmir as
a State under Article 1(3)(a) of the Constitution and its conversion into a
Union Territory under Article 1(3)(b) constitutes

## Text

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[2023] 16 S.C.R. 1 : 2023 INSC 1058
CASE DETAILS
IN RE: ARTICLE 370 OF THE CONSTITUTION
(Writ Petition (Civil) No. 1099 of 2019)
DECEMBER 11, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,
SANJAY KISHAN KAUL, SANJIV KHANNA,
B. R. GAVAI AND SURYA KANT, JJ.]
HEADNOTES
Issues for consideration: 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) which orders had
the eff ect of applying the entire Constitution of India to the State of Jammu
and Kashmir and abrogating Article 370. Contemporaneously, the Parliament
enacted the Jammu and Kashmir Reorganisation Act 2019 which bifurcated
the State into two Union territories, namely, the Union Territory of Jammu
and Kashmir and the Union Territory of Ladakh. The petitioners challenged
the constitutionality of these actions. CO 272 was issued under Article
370(1)(d) and sought to amend clause (3) of Article 370. The petitioners
challenged CO 272 as being ultra vires Article 370(1)(d) on the grounds
that: a. It modifi ed Article 370, which could only be done on exercise of
power under Article 370(3); and b. Only the State Government may accord
"concurrence" to the President under the second proviso to Article 370(1)(d).
Further, the exercise of power under Article 370(3) in issuing CO 273 was
challenged. The questions for determination were:
a. Whether the provisions of Article 370 of the Constitution were
temporary in nature or whether they acquired a status of permanence in
the Constitution;
b. Whether the amendment to Article 367 of the Constitution in exercise
of the power under Article 370(1)(d) so as to substitute the reference to the
"Constituent Assembly of the State referred to in clause (3) of Article 370
by the words "Legislative Assembly of the State" was constitutionally valid;
Ed. Note: Hon'ble Dr. Dhananjaya Y Chandrachud, CJI pronounced the judgment of the
Bench comprising His Lordship, Hon'ble Mr. Justice B R Gavai and Hon'ble Mr Justice
Surya Kant, while Hon'ble Mr Justice Sanjay Kishan Kaul and Hon'ble Mr Justice Sanjiv
Khanna pronounced their separate judgments.
1
SUPREME COURT REPORTS
[2023] 16 S.C.R.
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c. Whether the entire Constitution of India could have been applied to the
State of Jammu and Kashmir in exercise of the power under Article 370(1)(d);
d. Whether the abrogation of Article 370 by the President in exercise
of the power under Article 370(3) was constitutionally invalid in the absence
of a recommendation of the Constituent Assembly of the State of Jammu
and Kashmir as mandated by the proviso to clause (3);
e. Whether the proclamation of the Governor dated 20 June 2018 in
exercise of power conferred by Section 92 of the Constitution of Jammu
and Kashmir and the subsequent exercise of power on 21 November 2018,
under Section 53(2) of the Constitution of Jammu and Kashmir to dissolve
the Legislative Assembly were constitutionally valid;
f. Whether the Proclamation which was issued by the President under
Article 356 of the Constitution on 19 December 2018 and the subsequent
extensions were constitutionally valid;
g. Whether the Jammu and Kashmir Reorganisation Act 2019 by which
the State of Jammu and Kashmir was bifurcated into two Union Territories
(Union Territory of Jammu and Kashmir and Union Territory of Ladakh)
was constitutionally valid bearing in mind: (i) The fi rst proviso to Article 3
which requires that a Bill aff ecting the area, boundaries or name of a State
has to be referred to the legislature of the State for its views; and (ii.) The
second proviso to Article 3 which requires the consent of the State legislature
for increasing or diminishing the area of the State of Jammu and Kashmir
or altering the name of boundary of the State before the introduction of the
Bill in Parliament;
h. Whether during the tenure of a Proclamation under Article 356,
and when the Legislative Assembly of the State is either dissolved or is
in suspended animation the status of the State of Jammu and Kashmir as
a State under Article 1(3)(a) of the Constitution and its conversion into a
Union Territory under Article 1(3)(b) constitutes a valid exercise of power.
Federalism - Asymmetric federalism - Constitutional integration
of Indian States - Accession of Jammu and Kashmir - Article 370 of
the Constitution of India incorporated special arrangements for the
governance of the State of Jammu and Kashmir - Whether the State of
Jammu and Kashmir possessed sovereignty - Meaning of sovereignty.
3
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): The State of Jammu and Kashmir does not retain any
element of sovereignty after the execution of the Instrument of Accession
(IoA) and the issuance of the Proclamation dated 25 November 1949 by
which the Constitution of India was adopted - The State of Jammu and
Kashmir does not have 'internal sovereignty' which is distinguishable from
the powers and privileges enjoyed by other States in the country - Article
370 was a feature of asymmetric federalism and not sovereignty. [Para 514]
- Held (per Sanjay Kishan Kaul, J.): In light of the Supreme Court's prior
fi nding in Prem Nath Kaul case, the State of Jammu and Kashmir retained
an element of internal sovereignty despite Maharaja Hari Singh signing
the IoA with the Dominion - Art.370 of the Constitution recognized this
internal sovereignty by recognizing the Constituent Assembly of the State.
[Para 112] - Held (per Sanjiv Khanna, J.): The abrogation of Article
370 does not negate the federal structure, as the citizens living in Jammu
and Kashmir do and will enjoy same status and rights as given to citizens
residing in other parts of the country. [Para 2]
Constitution of India - Art. 356 - Constitution of Jammu and
Kashmir - s.92 - Proclamations issued under Article 356 of the
Constitution of India and s.92 of the Constitution of Jammu and
Kashmir - Constitutional validity of.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): The petitioners did not challenge the issuance of the
Proclamations under Section 92 of the Jammu and Kashmir Constitution
and Article 356 of the Indian Constitution until the special status of Jammu
and Kashmir was abrogated - The challenge to the Proclamations does not
merit adjudication because the principal challenge is to the actions which
were taken after the Proclamation was issued. [Para 514]
Constitution of India - Art. 356 - Presidential Proclamation
- Exercise of power by President or Parliament under Article 356 -
Limitations on, if any - Standard to assess actions taken under Article
356 after issuance of Proclamation.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): The exercise of power by the President after the
Proclamation under Article 356 is issued is subject to judicial review - The
IN RE: ARTICLE 370 OF THE CONSTITUTION
SUPREME COURT REPORTS
[2023] 16 S.C.R.
4
exercise of power by the President must have a reasonable nexus with the
object of the Proclamation - The person challenging the exercise of power
must prima facie establish that it is a mala fi de or extraneous exercise of
power - Once a prima facie case is made, the onus shifts to the Union to
justify the exercise of such power - The power of Parliament under Article
356(1)(b) to exercise the powers of the Legislature of the State cannot be
restricted to law-making power thereby excluding non-law making power
of the Legislature of the State - Such an interpretation would amount
to reading in a limitation into the provision contrary to the text of the
Article. [Para 514] - Held (per Sanjay Kishan Kaul, J.) (Concurring
with Dr. D.Y. Chandrachud, CJI): President's rule can be imposed after
the dissolution of the State Assembly since the Presidential emergency
was predicated on the failure of the constitutional machinery, which took
place prior to the Governor's rule and the dissolution of the Assembly by
the Governor of Jammu & Kashmir was only a subsequent consequence -
Once the Presidential proclamation has been approved by both Houses of
Parliament, so as to refl ect the will of the people, the President has the power
under Article 356 to make irreversible changes, including the dissolution
of the State Assembly - The imposition of an emergency highlights an
extraordinary situation and in the absence of the State Government and
State Legislature, the power of these elected organs must lie with any other
competent authority - Article 357 does not bar the President from exercising
the non-legislative powers of the State Legislature, and Article 356(1)(b)
allows the Union Parliament to exercise all powers of the State Legislature
without distinguishing between legislative and non-legislative powers of
the State Legislature - Therefore, the President is permitted to exercise both
legislative and non-legislative functions of the State Legislature - However, a
proclamation of emergency is bound by judicial and constitutional scrutiny to
ensure the exercise of emergency powers is not unfettered and absolute. [Para
112] - Sanjiv Khanna, J. concurring with Dr. D.Y. Chandrachud, CJI.
Constitution of India - Art. 370 - Scope and interpretation of -
Art.370 incorporating special arrangements for governance of the State
of Jammu and Kashmir, if a temporary provision - Historical context
to the Article - Placement of Art.370 in Part XXI of the Constitution
- Eff ect of.
5
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): It can be garnered from the historical context for
the inclusion of Article 370 and the placement of Article 370 in Part XXI
of the Constitution that it is a temporary provision. [Para 514] - Held (per
Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y. Chandrachud,
CJI): A combination of factors, such as Article 370's historical context,
its text, and its subsequent practice, indicate that Article 370 was intended
to be a temporary provision. [Para 112] - Held (per Sanjiv Khanna, J.)
(Concurring with both Dr. D.Y. Chandrachud, CJI and Sanjay Kishan
Kaul, J.): Article 370 was enacted as a transitional provision and did not
have permanent character. [Para 2]
Constitution of India - Art. 370 - Eff ect of dissolution of the
Constituent Assembly of Jammu and Kashmir on the scope of powers
under Art.370(3).
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai and
Surya Kant, JJ.): The power under Article 370(3) did not cease to exist
upon the dissolution of the Constituent Assembly of Jammu and Kashmir
- When the Constituent Assembly was dissolved, only the transitional
power recognised in the proviso to Article 370(3) which empowered the
Constituent Assembly to make its recommendations ceased to exist - It
did not aff ect the power held by the President under Article 370(3). [Para
514] - Held (per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y.
Chandrachud, CJI): Article 370(3) contained the mechanism to bring the
temporary arrangement to an end, and in turn, to de-recognize the internal
sovereignty of the State and apply the Constitution of India in toto - Since
Article 370 is meant to be a temporary arrangement, it cannot be said that the
mechanism under Article 370(3) came to an end after the State Constituent
Assembly was dissolved - The power of the President under Article 370(3)
was unaff ected by the dissolution of the Constituent Assembly of Jammu
and Kashmir - The President could exercise their power anytime after the
dissolution of the Constituent Assembly of Jammu and Kashmir, in line
with the aim of full integration of the State. [Para 112] - Sanjiv Khanna,
J. concurring with Sanjay Kishan Kaul, J.
Constitution of India - Art. 370 - Amendment of Art. 370 through
Art. 370(1)(d) - Application of the Constitution of India to the State
IN RE: ARTICLE 370 OF THE CONSTITUTION
SUPREME COURT REPORTS
[2023] 16 S.C.R.
6
of Jammu and Kashmir through exercise of power under Art. 370(1)
(d) - Amendment to Article 367 of the Constitution in exercise of
the power under Article 370(1)(d) so as to substitute the reference
to the "Constituent Assembly of the State referred to in clause (3) of
Article 370 by the words "Legislative Assembly of the State" - Validity
of modifi cation of Art. 367 - The President issued Constitutional
Orders 272 and 273 during the subsistence of a Proclamation under
Article 356(1)(b) - These orders had the eff ect of applying the entire
Constitution of India to the State of Jammu and Kashmir and
abrogating Art.370 - Challenge to the Constitutional Orders 272 and
273 (C.Os 272 and 273).
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): Article 370 cannot be amended by exercise of power
under Article 370(1)(d) - Recourse must have been taken to the procedure
contemplated by Article 370(3) if Article 370 is to cease to operate or is to be
amended or modifi ed in its application to the State of Jammu and Kashmir -
Paragraph 2 of CO 272 by which Article 370 was amended through Article
367 is ultra vires Article 370(1)(d) because it modifi es Article 370, in eff ect,
without following the procedure prescribed to modify Article 370 - An
interpretation clause cannot be used to bypass the procedure laid down for
amendment - However, the exercise of power by the President under Article
370(1)(d) to issue CO 272 is not mala fi de - The President in exercise of
power under Article 370(3) can unilaterally issue a notifi cation that Article
370 ceases to exist - The President did not have to secure the concurrence
of the Government of the State or Union Government acting on behalf of
the State Government under the second proviso to Article 370(1)(d) while
applying all the provisions of the Constitution to Jammu and Kashmir
because such an exercise of power has the same eff ect as an exercise of
power under Article 370(3) for which the concurrence or collaboration with
the State Government was not required - Paragraph 2 of CO 272 issued by
the President in exercise of power under Article 370(1)(d) applying all the
provisions of the Constitution of India to the State of Jammu and Kashmir
is valid - Such an exercise of power is not mala fi de merely because all
the provisions were applied together without following a piece-meal
approach - The President had the power to issue a notifi cation declaring
7
that Article 370(3) ceases to operate without the recommendation of the
Constituent Assembly - The continuous exercise of power under Article
370(1) by the President indicates that the gradual process of constitutional
integration was ongoing - The declaration issued by the President under
Article 370(3) is a culmination of the process of integration and as such
is a valid exercise of power - Thus, CO 273 is valid - The Constitution
of India is a complete code for constitutional governance - Following the
application of the Constitution of India in its entirety to the State of Jammu
and Kashmir by CO 273, the Constitution of the State of Jammu and Kashmir
is inoperative and is declared to have become redundant. [Para 514] - Held
(per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y. Chandrachud,
CJI): The power of the President under Article 370(3) was unaff ected by
the dissolution of the Constituent Assembly of Jammu and Kashmir - The
President could exercise their power anytime after the dissolution of the
Constituent Assembly of Jammu and Kashmir, in line with the aim of full
integration of the State - Hence, C.O. 273, which declares that Article 370
shall cease to operate except as provided, and was issued under Article
370(3), is valid - The power to issue C.O. 272 without the concurrence of
the Government of the State is valid, as the power of the President is not
limited by the concurrence of the Government of the State in this case - The
power under Article 370(1)(d) read with Article 367 cannot be used to do
indirectly, what cannot be done directly - The power to make modifi cations
under Article 370(1)(d) cannot be used to amend Article 370 and Article 367,
which is an interpretation clause, cannot be used to alter the character of a
provision - Therefore, Paragraph 2 of C.O. 272, which amends Article 367(4)
is ultra vires Article 370 - However, the President had the power to apply all
provisions of the Constitution of India to Jammu and Kashmir under Article
370(1)(d), which is similar to the power under Article 370(3) - Therefore,
the remainder of Paragraph 2 of C.O. 272 is valid. [Para 112] - Held (per
Sanjiv Khanna, J.) (Concurring with both Dr. D.Y. Chandrachud, CJI
and Sanjay Kishan Kaul, J.): Paragraph (2) of C.O. 272 by which Article
370 was amended by taking recourse to Article 367 is ultra vires and bad
in law, albeit can be sustained in view of the corresponding power under
Article 370(1)(d) - Most importantly, Article 370 has been made inoperative
in terms of clause (3) to Article 370 - Lastly, C.O. 273 is valid. [Para 2]
IN RE: ARTICLE 370 OF THE CONSTITUTION
SUPREME COURT REPORTS
[2023] 16 S.C.R.
8
Jammu and Kashmir Reorganisation Act 2019 - s.14 - Parliament
enacted the Jammu and Kashmir Reorganisation Act 2019 which
bifurcated the State of Jammu and Kashmir into two Union territories,
Union Territory of Jammu and Kashmir and Union Territory of Ladakh
- Challenge to the Reorganisation Act on substantive grounds and
on procedural grounds - Contours of the power under Art. 3 of the
Constitution of India - Parliament's exercise of power under the fi rst
proviso to Art.3 - Suspension of the second proviso to Art.3 as applicable
to Jammu and Kashmir - Constitution of India - Art.3.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): The views of the Legislature of the State under the
fi rst proviso to Article 3 are recommendatory - Thus, Parliament's exercise
of power under the fi rst proviso to Article 3 under the Proclamation was
valid and not mala fi de - The Solicitor General stated that the statehood
of Jammu and Kashmir will be restored (except for the carving out of the
Union Territory of Ladakh) - In view of the statement, it is not necessary
to determine whether the reorganisation of the State of Jammu and Kashmir
into two Union Territories of Ladakh and Jammu and Kashmir is permissible
under Article 3 - However, the validity of the decision to carve out the Union
Territory of Ladakh is upheld in view of Article 3(a) read with Explanation
I which permits forming a Union Territory by separation of a territory from
any State - Steps to be taken by the Election Commission of India to conduct
elections to the Legislative Assembly of Jammu and Kashmir constituted
under s.14 of the Reorganisation Act by 30 September 2024 - Restoration
of Statehood shall take place at the earliest and as soon as possible. [Para
514] - Held (per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y.
Chandrachud, CJI): The challenge to Section 4 of the Jammu and Kashmir
Reorganization Act on the touchstone of Article 3 is not required to be
debated on account of the assurance on behalf of the Government of India
that the Statehood of Jammu & Kashmir would be restored on elections being
held - It is imperative to ascertain the 'views' of the State Legislature under
the fi rst proviso to Article 3 if the proposed Bill aff ects the area, boundaries
or name of the State - However, in the instant case since the State of Jammu
& Kashmir was under President's Rule and the State Legislature was already
dissolved, the functions of the State Legislature were performed by the Union
Parliament - Hence, it was not possible to ascertain the views of the State
9
Legislature - It follows that Section 3 of the Reorganization Act is valid.
[Para 112] - Held (per Sanjiv Khanna, J.) (Concurring with Dr. D.Y.
Chandrachud, CJI): Union Territories are normally geographically small
territories, or may be created for aberrant reasons or causes - Conversion
of a State into Union Territory has grave consequences, amongst others, it
denies the citizens of the State an elected state government and impinges on
federalism - Conversion/creation of a Union Territory from a State has to
be justifi ed by giving very strong and cogent grounds - It must be in strict
compliance with Article 3 of the Constitution of India. [Para 6]
Human Rights - Jammu and Kashmir - Held Per Sanjay Kishan
Kaul, J, Recommendation made by for setting up of an impartial truth and
reconciliation Commission to investigate and report on violation of human
rights both by State and non-State actors in Jammu & Kashmir at least since
the 1980s and recommend measures for reconciliation. [Para 120]
LIST OF CITATIONS AND OTHER REFERENCES
In the judgment of Dr. D.Y. Chandrachud, CJI
S.R. Bommai v. Union of India (1994) 3 SCC 1 : [1994] 2 SCR 644 and
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha (2007) 3 SCC 184 : [2007]
1 SCR 317 - relied on.
Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1 : [2017] 5
SCR 160; Sampat Prakash v. State of Jammu & Kashmir [1969] 2 SCR
365; Madhav Rao Jivaji Rao Scindia v. Union of India (1971) 1 SCC 85 :
[1971] 3 SCR 9 and Raghunathrao Ganpatrao v. Union of India (1994) 1
Supp SCC 191 : [1993] 1 SCR 480 - explained.
Dr Shah Faesal v. Union of India (2020) 4 SCC 1 : [2020] 3 SCR
1115; Prem Nath Kaul v. State of Jammu & Kashmir [1959] Suppl 2 SCR
270; Mohd Maqbool Damnoo v. State of Jammu and Kashmir (1972) 1 SCC
536 : [1972] 2 SCR 1014; Thiru K.N. Rajagopal v. Thiru M. Karunanidhi,
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SCC 1 : [1976] 2 SCR 347; State (NCT of Delhi) v. Union of India (2018) 8
IN RE: ARTICLE 370 OF THE CONSTITUTION
SUPREME COURT REPORTS
[2023] 16 S.C.R.
10
SCC 501 : [2018] 7 SCR 1; State (NCT of Delhi) v. Union of India (2023) 9
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v. State of Rajasthan (1990) Supp SCC 742 : [1990] 2 SCR 142; Feroze N.
Dotivala v. P.M. Wadhwani (2003) 1 SCC 433 : [2002] 4 Suppl. SCR 416;
CIT v. Sundaram Spinning Mills (2000) 1 SCC 466 : [1999] 5 Suppl. SCR
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Suppl. SCR 1; Kuldip Nayar v. Union of India (2006) 7 SCC 1 : [2006]
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Swaraj Abhiyan (V) v. Union of India (2018) 12 SCC 170; Kuldip Nayar
v. Union of India (2006) 7 SCC 1; State of Himachal Pradesh v. Union of
11
India (2011) 13 SCC 344 : [2011] 11 SCR 527 and Babulal Parate v. State
of Bombay AIR 1960 SC 51 : [1960] 1 SCR 605 - referred to.
Balraj Kunwar v. Jagatpal Singh, ILR 26 All 392 and Emperor v.
Sadashiv AIR 1947 PC 82 - referred to.
Dicey, Law of the Constitution (8th ed. 1915); Austin, Jurisprudence
(4th ed. 1873); John Dickinson, A Working Theory Of Sovereignty I,
Political Science Quarterly, Volume 42, Issue 4, December 1927, Pages
524-548; Lester B Orfi eld, The Amending of the Federal Constitution
(2012); Max Planck Encyclopedia of Public International Law, 'Sovereignty'
Oxford Public International Law and Shiva Rao, The Framing of India's
Constitution, IV, pp. 3-4; Constituent Assembly Debates on November 17,
1948, Speech by Mr. KT Shah, Book 2, Pgs. 437-438; 25 October 1956,
and 7 November 1956, Debates of the Constituent Assembly of Jammu
and Kashmir; "Looking Back" by Shri Mehr Chand Mahajan, Har-Anand
Publications Private Limited reprint 2023; "The Story of the Integration of
the Indian States" by VP Menon, Orient Longmans (1961); B. Shiva Rao,
The Framing of India's Constitution; Justice G P Singh's "Principles of
Statutory Interpretation" - referred to.
In the judgment of Sanjay Kishan Kaul, J.
Prem Nath Kaul v. State of J&K [1969] Supp 2 SCR 270; State of West
Bengal v. Union of India [1964] 1 SCR 371 and Babulal Parate v. State of
Bombay [1960] 1 SCR 605 - relied on.
S.R. Bommai v. Union of India (1994) 3 SCC 1 : [1994] 2 SCR 644
- explained.
R.C. Poudyal v. Union of India (1994) 1 Supp SCC 324; Sampat
Prakash v. State of J & K [1969] 2 SCR 365; Kesavananda Bharati v.
State of Kerala (1973) 4 SCC 225 : [1973] Suppl. SCR 1; Dr. Shah Faesal
and Ors. v. Union of India and Anr. (2020) 4 SCC 1 : [2020] 3 SCR 1115;
Promod Chandra Deb v. State of Orissa [1962] Supp 1 SCR 405; Madhav
Rao Jivaji Rao Scindia v. Union of India (1971) 1 SCC 85 : [1971] 3 SCR
9; State Bank of India v. Santosh Gupta (2017) 2 SCC 538 : [2016] 9 SCR
985; Delhi Laws Act, In Re. (1951) SCC 568 : [1951] SCR 747; Puranlal
Lakhanpal v. President of India [1962] 1 SCR 688; Krishna Kumar Singh
v. State of Bihar, (2017) 3 SCC 1 : [2017] 5 SCR 160; K.N. Rajgopal v. M.
IN RE: ARTICLE 370 OF THE CONSTITUTION
SUPREME COURT REPORTS
[2023] 16 S.C.R.
12
Karunanidhi (1972) 4 SCC 733; Raghunathrao Ganpatrao v. Union of India
(1994) 1 Supp SCC 191 : [1993] 1 SCR 480; Mohd. Maqbool Damnoo v.
State of Jammu & Kashmir (1972) 1 SCC 536 : [1972] 2 SCR 1014; Haji
Abdul Ghani Khan v. Union of India 2023 SCC OnLine SC 138; Raja Ram
Pal v. Hon'ble Speaker, Lok Sabha (2007) 3 SCC 184 : [2007] 1 SCR 317;
Puranlal Lakhanpal v. Union of India [1955] 2 SCR 1101; Thiru K.N.
Rajgopal v. Thiru M. Karunanidhi & Others (1972) 4 SCC 733; Rameshwar
Prasad v. Union of India (2006) 2 SCC 1 : [2006] 1 SCR 562 and Vishaka
and Others v State of Rajasthan (1997) 6 SCC 241 : [1997] 3 Suppl. SCR
404 - referred to.
Manohar Lal v. Union of India AIR 1970 Del 178 - referred to.
Miller v. Queen (2019) UKSC 41 and Velasquez Rodriguez v Honduras
(Ser. C) No. 4 (IACHR) 1988 - referred to.
Rajatarangini (The River of Kings) of Kalhana and Nilamatpurana,
believed to be composed by Candra Deva; P.N.K Bamzai, Culture and
Political History of Kashmir: Ancient Kashmir, vol. 1 (M.D. Publications
Pvt. Ltd., New Delhi 1994) 16; A.R. Nazki, 'In Search of Roots' in S.S.
Toshkhani & K. Warikwoo (eds.), Cultural Heritage of Kashmiri Pandits
(Pentagon Press 2009) 145; Iqbal Chand Malhotra & Maroof Raza,
Kashmir's Untold Story, (Bloomsbury India 2019) 1-2, 46, 80, 98, 100,
102-103; Walter R. Lawrence, The Valley of Kashmir (Oxford University
Press 1895) 284, 296, 300, 302; Ramachandra Guha, India After Gandhi:
The History of the World's Largest Democracy (Picador 2008) 44, 60, 63,
69, 248; Bipin Chandra, Mridula Mukherjee & Aditya Mukherjee, India After
Independence 1947-2000 (Penguin Books 2007) 92, 93-94, 418-419; Rekha
Chowdhary, 'Kashmir in the Indian Project of Nationalism' in Nyla Ali Khan
(ed.), The Parchment of Kashmir: History, Society and Polity (Palgrave
Macmillan 2012) 154, 171-172; A.G. Noorani, The Kashmir Dispute 19472012, vol. 2 (Tulika Books 2013) 44, 77-80, 401, 543; A.G. Noorani, Article
370: A Constitutional History of Jammu and Kashmir (Oxford University
Press, India 2014) 16-17, 48, 49, 50-78, 95, 111-113, 117-120, 217-223; V.P.
Menon, The Story of the Integration of the Indian States (Orient Longmans
Pvt. Ltd. 1956) 391; Durgaprasad (ed.), The Rajatarangini of Kalhana,
vol. 2 (1894) 408; Monier-Williams, Modern India and the Indians (3rd
edn., Trübner and Co. 1879) 151; A.R. Nazki, 'In Search of Roots' in S.S.
13
Toshkhani & K. Warikwoo (eds.), Cultural Heritage of Kashmiri Pandits
(Pentagon Press 2009)2; Anita Medhekar & Farooq Haq, 'Promoting
Kashmir as an Abode of Peace Tourism Destination by India and Pakistan' in
Alexandru-Mircea Nedelea & Marilena-Oana Nedelea, Marketing Peace for
Social Transformation and Global Prosperity (IGI Global 2019) 34; Justice
A.S. Anand, The Constitution of Jammu & Kashmir: Its Development &
Comments (3rd edn., Universal Law Publishing Co. Pvt. Ltd. 1998) 41, 42,
44, 50, 51; David E. Lockwood, 'Kashmir: Sheikh Abdullah's Reinstatement'
(1975) 31(6) The World Today, 250; Surinder Mohan, 'Democracy in Jammu
and Kashmir 1947-2008' 2012 16(3) World Aff airs, 112-113, 104; P.N.K
Bamzai, Culture and Political History of Kashmir: Modern Kashmir, vol. 3
(M.D. Publications Pvt. Ltd., New Delhi 1994) 852; Black's Law Dictionary,
(VI Edition, 1990); Constituent Assembly Debates, Vol. VII, Pg 34 and M.
Klinkner and H. Davis, The Right to the Truth in International Law: Victim's
Rights in Human Rights and International Criminal Law; A.Sachs, Strange
Alchemy of Life and Law, 155 (OUP, 2009) and 4 RG Tietel, Transitional
Justice and Transformation of Constitutionalism in Globalizing Transitional
Justice, (OUP, 2014) - referred to.
In the judgment of Sanjiv Khanna, J.
S.R. Bommai and Others v. Union of India and Others. (1994) 3 SCC
1 : [1994] 2 SCR 644 and Rameshwar Prasad and Others (VI) v. Union of
India and Another (2006) 2 SCC 1 : [2006] 1 SCR 562 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
ORIGINAL WRIT/APPELLATE JURISDICTION: Writ Petition
(Civil) No. 1099 of 2019.
Under Article 32 of The Constitution of India
In Re: Article 370 of The Constitution
With
Writ Petition (C) Nos. 871 of 2015, 722 of 2014, SLP (C) No. 19618
of 2017, Writ Petition (C) Nos.1013, 1082, 1068, 1037, 1062, 1070, 1104,
1165, 1210, 1222 of 2019, 396, 756 of 2017, 398, 924, 1092, 1162 of 2018,
1048, 1268 and 1368 of 2019.
IN RE: ARTICLE 370 OF THE CONSTITUTION
SUPREME COURT REPORTS
[2023] 16 S.C.R.
14
Appearances:
R Venkataramani, Attorney General for India, Tushar Mehta, Solicitor
General, K M Nataraj, Vikramjit Banerjee, A.S.Gs., D.C. Raina, Advocate
General/Sr. Adv., Shailesh Madiyal, A.A.G., Muzaff ar. H. Baig, Ms. Nitya
Ramakrishnan, Gopal Sankaranarayanan, Kapil Sibal, C U Singh, Shekhar
Naphade, Prashanto Chandra Sen, Gopal Subramanium, Dr. Rajeev Dhavan,
Dushyant Dave, Ravindra Kumar Raizada, Rakesh Dwivedi, Dr. Menaka
Guruswamy, Zafar A. Shah, Harish Salve, V. Giri, Mahesh Jethmalani, S
Guru Krishna Kumar, Bimal Roy Jad, Vikram Sharma, Pranav Kohli, Dinesh
Dwivedi, Ms. Nitya Ramakrishnan, P.V. Surendarnath, Sr. Advs., Aftab Ali
Khan, Murtaza. A. Khan, Ms. Safi na Baig, M. Z. Chaudhary, Ali Safeer
Farooqi, S. Mansoori, Aakarsh Kamra, N. Sai Vinod, Prasanna S, Ms.
Malavika Prasad, Shadan Farasat, Ms. Rupali Samuel, Archit Krishna,
Vibhor Jain, M. V. Mukunda, Ms. Swati Arya, Yuvraj Singh Rathore, Dr.
Aniruddha Rajput, Anirudh Sharma, Sridhar Potaraju, Pattabhiram,
Nachiketa Joshi, Praneet Pranav, Yashraj Singh Bundela, Barun Kumar
Sinha, Mrs. Pratibha Sinha, Rakesh Mudgal, Pankaj Kumar Shukla, Niraj
Kumar, Sneh Vardhan, Rameshwar Prasad Goyal, Anil Kumar Jha, Binay
Kumar Das, Vijayendra Misra, Ms. Y. K. S. Chauhan, Ms. Vijayalakshmi
Jha, Ms. Priyanka Das, Ms. Jyothi Pathak Jha, Ms. Neha Das, Ravi Shankar
Ravi, Sanjay Kumar Lal Das, Navin Jha, M. C. Dhingra, Vikrant Yadav,
Gaurav Dhingra, Ankur Prakash, Manish Vashishtha, Syed Imtiyaz Ali, Mrs.
Kamakshi Mehlwal, Ashok Kumar, Mohnish Nirwan, Ms. Aparna Singh,
Ms. Shivani Vij, Ms. Tanya Srivastava, Ms. Aditi Gupta, Ms. Trisha
Chandran, Ms. Jhanvi Dubey, Ms. Ishita Chowdhury, Satyajit Sarna,
Shrutanjaya Bhardwaj, Vikramaditya, Vishal Sinha, Ms. Charu Ambwani,
Soayib Qureshi, D. Mahesh Babu, Shishir Pinaki, Muzaff ar Iqbal Khan,
Dhanaeswar Gudapalli, Ms. Aparajita Jamwal, Nizam Pasha, Rishabh
Parikh, Desam Sudhakara Reddy, Ms. Mallika Das, D. Siva Rami Reddy,
K. Venkateshwara Prasad, Medi Yadaiah, Dr. Saif Mahmood, D. Abhinav
Rao, Mayank Mikhail Mukherjee, Amjid Maqbool, Ms. Bidya Mohanty,
Arjun Krishnan, Ankur Singh, Pratik Patnaik, Kaustav Som, Ms. Aishwarya
Dash, Dr. Prashant Pratap, Ms. Farah Hashmi, Ms. Somya Yadava, Ms.
Shruthi Parasa, Ms. Akshita Chhabra, Ms. Khyati Jain, Ranvir Singh, Gautam
Bhatia, Ms. Malavika Prasad, Ms. Ujwala Uppaluri, Jayavardhan Singh,
Ms. Hima Lawrence, Pawan Bhushan, Lakshay Laroiya, Ms. Pritha
15
Srikumar, Sulabh Rewari, Aditya Chatterjee, Ms. Mansi Binjrajka, Binit
Agrawal, P. V. Dinesh, Jaimon Andrews, Ms. Anna Oommen A, Prashant
Bhushan, Ms. Ayushi, Akshat Malpani, Mohd. Irshad Hanif, Ms. Jyotika
Kalra, Dr. Charu Wali Khanna, Joydeep Mukherjee, Ms. Annwesha Deb,
Tripurari Ray, Balwant Singh Billowria, Anirudh Ray, Vivekanand Singh,
Nithyananda Murthy P, Mrs. Bhanu Prabha, N Suresha, Dr. Nisha Kant
Ojha, Rajinder Singh, Suresh Kumar Sharma, Atul Wadera, Ms. Shilpa
Singh, Dileep Kumar Dubey, Rajeev Pandey, Surjeet Singh, Adarsh
Upadhyaya, Sarthak Raizada, Pankaj Jamthani, Mukesh Kumar Verma,
Anant Sangal, Shivam Singhania, Ms. Divya Roy, Pallav Mongia, Vishnu
Shankar Jain, Ashwini Kumar Upadhyay, Ashwani Kumar Dubey, Chandra
Shekhar, Ajit Kumar Pathak, Eklavya Dwivedi, Utkarsh Pratap, Lavkesh
Bhambhani, Harshwardhan Thakur, Vidur Dwivedi, Akashdeep Panday,
Sazid Sr Shah, Amod Kumar Bhidurdi, Saquib Siddiqui, Mehmood Umar
Faruqui, Shahbaaz Jameel, Ali Muzaff ar, Ms. Sarika Verma, Kausar Raza
Faridi, Dharmendra Kumar Sinha, J. N. Shaheen, M. A. Ronga, Bashir
Sadiq, Onkar Prasad, Sunil Prakash Sharma, Ajay Amitraj, Dr. Ritu
Bhardwaj, Raju Sonkar, Ms. Baby Bonia, Abhimanue Shrestha, Kanu
Agrawal, Rajat Nair, Ankur Talwar, Ms. Shraddha Deshmukh, Madhav
Sinhal, Anandh Venkataramani, Mrs. Vijayalakshmi Venkataramani, Vinayak
Mehrotra, Ms. Mansi Sood, Chitvan Singhal, Ms. Sonali Jain, Abhishek
Kumar Pandey, Raman Yadav, Kartikey Aggarwal, Pranatap Singh, Gaurang
Bhushan, Aman Mehta, Arvind Kumar Sharma, Sanjay Kumar Tyagi, Ajit
Yadav, Surjeet Singh, Sarthak Raizada, Alabhya Dhamija, Mithun Shashank,
Sudipto Sircar, Ms. Divya Roy, Rahul G. Tanwani, Anantha Narayana M.G.,
Manan Sanghai, Ms. Suveni Bhagat, Harshad Sundar, Ms. Vishwaja Rao,
Rahul Narang, Prashant Singh, V.C. Shukla, Shubendu Anand, Ayush Anand,
Ritvik Banot, Anant Sangal, Deepak Goel, Ms. Rao Vishwaja, Anantha
Narayan, Vipin Kumar Sexana, Chaman Rana, Ms. Alka Goyal, Ms. Urvashi
Sharma, Kumar Kartikay, Mukesh Verma, Vipin Kumar, Vibhu Shanker
Mishra, Ms. Samta Pushkarna Mishra, Mani Shanker Mishra, Kamal Kumar
Pandey, Jitendra Bharti, Ms. Baby Devi Bonia, Anil Kaushik, Ravi Sharma,
Ms. Mugdha Pandey, Ajay Awasthi, Mrs. Aditi Tripathi, Ms. Kanika Singhal,
Himadri Haksar, Santosh Kumar, Sayooj Mohandas M., Bhaskar Gautham,
Vishal Arun, Ms. Serena Jethmalani, Yash Raj Singh Bundela, Amit Sharma,
Rajan Kumar Chourasia, Vishnu Kant, Rajeev Ranjan, Pavan Kumar, Aviral
IN RE: ARTICLE 370 OF THE CONSTITUTION
SUPREME COURT REPORTS
[2023] 16 S.C.R.
16
Saxena, Ms. Kavitha K T, Ashwin K, Gopal Jha, Tadimalla Bhaskar
Gowtham, Siddharth Sinha, Rajesh K. Singh, Shyamal Kumar, Bitu Kumar
Singh, Sunil Kumar Tomar, Ajay Kumar Pandey, Sandeep Singh, Dr. Brij
Bhushan K. Jauhari, Ms. Riddhi Jad, O.P. Singh, Suresh Kumar Bhan, Kumar
Ji Bhat, AK Kaul, N B Vishen, Harsh Mahan, Deepak Jyoti Ghildiyal, Ms.
Purnima Jauhari, Ms. Archana Pathak Dave, Ms. Aditi Tripathi, Ms. Sindoora
Vnl, Kumar Prashant, Parmod Kumar Vishnoi, Avnish Dave, Vaibhav
Dwivedi, Ms. Riya Sethi, Aadhar Saha, V. K. Biju, Mrs. Ria Sachthey,
Chetanya Singh, Abhay Pratap Singh, Aniruddha Purushotham, Shaji
George, Mayank Pandey, Ms. Shalaka Srivastava, Dr. Ranjeet Bharti, Dr.
Vivek Sharma, Mrs. Rubeena Jawed, Ms. Vijay Lakshmi, Mrs. Deepa Joseph,
Vineet Kumar Singh, Sahil Tagotra, Prem Sadotra, Ms. Abhivyakti Banerjee,
Pashupathi Nath Razdan, Parth Awasthi, Ms. Maitreyee Jagat Joshi, Astik
Gupta, Akshay Kumar, Vaibhav Sabharwal, Ms. Akanksha Tomar, Ritik
Sharma, Eklavya Dwivedi, Ashwani Kumar Dubey, Rajesh Bhushan, Nitin
Sangra, Ms. Shweta Singh Parihar, Dr. Charu Mathur, Siddharth Praveen
Acharya, Ujjwal Mishra, Ms. Anisha Agarwal, Ravi Kant Purohit,
Dharmendra Kumar Sinha, Onkar Prasad, Sunil Prakash Sharma, Ajay
Amitraj, Dr. Ritu Bhardwaj, Raju Sonkar, J. N. Shaheen, M. A. Ronga,
Bashir Sadiq, K. K. Mohan, Prateek Dwivedi, Nishant Singh, Prasanna S.,
Ms. Malavika Prasad, Archit Krishna, Vibhor Jain, Ms. Rupali Samuel, Syed
Iqbal Tahir, Ms. Swati Arya, Yuvraj Singh Rathore, Shaunak Dutta, Utkarsh
Pratap, Lavkesh Bhambhani, Harshwardhan Thakur, Yash Tiwari, Shakti
Kanta Pattanaik, Ms. Warisha Farasat, Shadan Farasat, Harshit Anand, Aman
Naqvi, Prasana S, Ms. Hrishika Jain, Ms. Natasha Maheshwari, Ms.
Mreganka Kukreja, Satyajeet Kumar, Ms. Taruna Ardhendumauli Prasad,
Ms. Adeeba Mujahid, Shailesh Madiyal, Mustafa Sajad, Siddharth Thakur,
Mahesh Thakur, Ms. Keerti Jaya, Ranvijay Singh Chandel, Mrs. Geetanjali
Bedi, Shivamm Sharrma, Ms. Anusha R., Ms. Sanjivani Aggarwal, Ms.
Jyoti Aggarwal, Pradeep Shekhavat, Ms. Filza Moonis, Ninad Dogra, Ashok
Mathur, Anupam Raina, Sunando Raha, Nishant Kumar, Osheen Bhat,
Abhimanyu Tewari, Apoorv Shukla, B. K. Satija, Prashant Rawat, P. S.
Sudheer, Rishi Maheshwari, Bharat Sood, Ms. Anne Mathew, Ms. Miranda
Solaman, K. V. Muthu Kumar, Talha Abdul Rahman, Ms. Manju Jetley,
Omprakash Ajitsingh Parihar, Satya Mitra, Charanjeet Singh Chanderpal,
Anil Kumar, Manoj K. Mishra, Ms. Rajshree Rai, Vinay Rai, J.K. Mishra,
17
Amrendra Kumar Singh, Umesh Dubey, Vaibhav Tiwari, Piyush Singh,
Vishal, Ms. Madhulika, Harvinder Chowdhury, G. Sivabalamurugan,
Vasantha Kumar A, Sanchit Vashisthe, Ms. Nidhi Vashistha, Purnendu
Bajpai, Mudit Chaudhry, Himanshu Nagarwal, Gaurav Kumar, Rohit Nagar,
Deepak Chauhan, Ms. Ankita Goutham, Abinav Upadhyaya, Vikram Kumar
Singh, Ms. Satamita Ghosh, Raghav Sabharwal, Ms. Tanvi Dubey, Anukrit
Gupta, Sanjay Kumar Dubey, Varun Byreddy, Mekala Ganesh Kumar Reddy,
Riju Raj Singh Jamwal, Ms. Madhusmita Bora, Ms. Resmitha R. Chandran,
Subhash Chandran K.R., Mukesh Kumar Pandey, Vipin Kumar Mishra,
Sawan Kumar Shukla, K. Krishna Kumar, Soayib Qureshi, Ms. Disha Singh,
Shivendu Gaur, Mrs. Nidhi Sharma, Mohit, R.K Kashyap, Sumit R. Sharma,
Irshad Ahmad, Mohit Chaudhary, Advs. for the appearing parties.
Petitioner-in-person
Applicant-in-person
Intervenor-in-person.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
DR DHANANJAYA Y CHANDRACHUD, CJI
Table of Contents*
A. Background .............................................................................. 8
B. Reference ................................................................................ 14
C. Submissions ............................................................................ 17
i.