IN RE: ARTICLE 370 OF THE CONSTITUTION versus .

Citation: [2023] 16 S.C.R. 1 · Decided: 11-12-2023 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

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Judgment (excerpt)

[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.
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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 a valid exercise of power.
Federalism – Asymmetric federalism – Constitutional integration 
of Indian States – Accession of Jammu and Kashmir – Article 370 of 
the Constitution of Indi

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