IN RE: ARTICLE 370 OF THE CONSTITUTION versus .

IN RE: ARTICLE 370 OF THE CONSTITUTION versus .

Article 370 was a temporary provision of asymmetric federalism; paragraph 2 of C.O.272 insofar as it sought to amend Article 370 by inserting clause (4) into Article 367 is ultra vires Article 370(1)(d) and thus invalid, but C.O.272 validly applied the provisions of the Constitution of India to Jammu & Kashmir and C.O.273 issued under Article 370(3) declaring Article 370 inoperative is valid; the Jammu and Kashmir Reorganisation Act, 2019 is constitutional as enacted while President’s Rule was subsisting and Parliament was exercising the State legislature’s functions, and elections to restore statehood must be held by 30 September 2024

Parties
Applicants: Petitioners; Respondent: Union of India
Jurisdiction
India
Judgment Date
11 December 2023
Procedural Posture
Writ Petition / Constitution Bench Judgment
Outcome
Constitution Bench (5-judge) judgment: paragraph 2 of C.O.272 insofar as it amended Article 370 via Article 367 is ultra vires; C.O.272 otherwise valid to apply the Constitution in its entirety to Jammu & Kashmir; C.O.273 valid; Jammu and Kashmir Reorganisation Act, 2019 valid; Article 370 declared inoperative and...
Legal Topics
Article 370, Article 356, Article 3, Presidential Constitutional Orders, Jammu and Kashmir Reorganisation Act 2019, Constituent Assembly, State Sovereignty, Reorganisation of States
Constitutional Law Federalism Emergency Powers Administrative Law Human Rights Jammu and Kashmir Law Article 370 Article 356 +6 more

Case Brief

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Parties

Petitioners

Applicants

Union of India

Respondent

Procedural Posture

Writ Petition / Constitution Bench Judgment

Legal Issues

  1. 1 Whether Article 370 was temporary or permanent
  2. 2 Whether Article 370(1)(d) could be used to amend Article 370 or Article 367
  3. 3 Whether the President could abrogate Article 370 under Article 370(3) absent a Constituent Assembly recommendation

Ratio Decidendi

Article 370 was a temporary provision of asymmetric federalism; paragraph 2 of C.O.272 insofar as it sought to amend Article 370 by inserting clause (4) into Article 367 is ultra vires Article 370(1)(d) and thus invalid, but C.O.272 validly applied the provisions of the Constitution of India to Jammu & Kashmir and C.O.273 issued under Article 370(3) declaring Article 370 inoperative is valid; the Jammu and Kashmir Reorganisation Act, 2019 is constitutional as enacted while President’s Rule was subsisting and Parliament was exercising the State legislature’s functions, and elections to restore statehood must be held by 30 September 2024

Court Disposition

Constitution Bench (5-judge) judgment: paragraph 2 of C.O.272 insofar as it amended Article 370 via Article 367 is ultra vires; C.O.272 otherwise valid to apply the Constitution in its entirety to Jammu & Kashmir; C.O.273 valid; Jammu and Kashmir Reorganisation Act, 2019 valid; Article 370 declared inoperative and...

Orders

  • Paragraph 2 of C.O.272 insofar as it amended Article 370 by modifying Article 367 is declared ultra vires and struck down
  • The remainder of C.O.272 (application of all provisions of the Constitution to Jammu & Kashmir) is declared valid