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 which bifurcated the State into two Union territories.
Situation before Article 370 Scrapping
The State government in Jammu and Kashmir was formed by an alliance of the Peoples’ Democratic Party with the Bharatiya Janata Party in 2015. The Chief Minister of the State, Ms Mehbooba Mufti, belonging to the PDP, resigned on 19 June 2018 after the Bharatiya Janata Party withdrew support. The next day, the Governor issued a Proclamation under Section 92 of the Constitution of Jammu and Kashmir, which entrusts power to the Governor to assume all the powers and functions of the Government of the State in the event of a failure of the constitutional machinery in the State.
A Proclamation under Section 92 requires the concurrence of the President of India under clause (5). Under clause (3) of Section 92, the Proclamation ceases to exist after six months. The promulgation of Governor’s rule in the State was made with the concurrence of the President. On 21 November 2018, the Governor dissolved the Legislative Assembly of the State under Section 53(2) of the Constitution of Jammu and Kashmir.
President Rule in Jammu and Kashmir
On 28 November 2018, the Governor submitted a report to the President recommending the invocation of Article 356 of the Constitution since six months since the issuance of the Proclamation under Section 92(3) was to end. On 19 December 2018, the President issued a Proclamation under Article 356 promulgating President’s rule in the State upon considering the report from the Governor of Jammu and Kashmir and other information. The Proclamation, inter alia, contained the following declarations:
a. The functions of the Government of the State and the powers vested in or exercisable by the Governor of that State under the Constitution of India and the State Constitution are assumed by the President;
b. The powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; and
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.
Scrapping of Article 370
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
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 be issued by the President of India under Article 370 (3):
‘In exercise of the powers conferred by Clause (3) of article 370 read with clause (1) of article 370 of the Constitution of India, the President, on the recommendation of the Parliament, is pleased to declare that, as from [*date*], all clauses of the said article 370 shall cease to be operative except clause (1) thereof which shall read 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 in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, bye-law, rule, regulation; notification, custom or usage having the force of law in the 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 which was sent to the House under the proviso to Article 3, in the following terms:
“That the President of India has referred the Jammu and Kashmir Reorganisation Bill, 2019 to this House under the proviso to article 3 of the Constitution of India for its views as this House is vested with the powers of the State Legislature of Jammu and Kashmir, as per proclamation of the President of India dated 19 December, 2018. This House resolves to express the view to accept the Jammu and Kashmir Reorganisation Bill, 2019.”
c. Simultaneously, the Lok Sabha also accepted the Jammu and Kashmir Reorganisation Bill 2019 in terms of the following resolution:
“That the President of India has referred the Jammu and Kashmir Reorganisation Bill, 2019 to this House under the proviso to article 3 of the Constitution of India for its views as this House is vested with the powers of the State Legislature of Jammu and Kashmir, as per proclamation of the President of India dated 19 December, 2018. This House resolves to express the view to accept the Jammu and Kashmir Reorganisation Bill 2019”
d. The Rajya Sabha passed the Jammu and Kashmir Reorganisation Act 2019.
On 6 August 2019, Parliament discharged its functions as the legislature of the State of Jammu and Kashmir and proceeded with the following legislative business:
a. The Lok Sabha recommended to the President under Article 370 (3) that the special provision in Article 370 shall cease to be operative and the provision would instead apply all the provisions of the Constitution to the State of Jammu and Kashmir without any modifications and exceptions:
“That this House recommends the following public notification to be issued by the President of India under Article 370(3):
Declaration under Article 370(3) of the Constitution. In exercise of the powers conferred by Clause (3) of article 370 read with clause(1) of article 370 of the Constitution of India, the President, on the recommendation of the Parliament, is pleased to declare that, as from the date on which the President of India signs the Declaration and published in the official Gazette, all clauses of the said article 370 shall cease to be operative except clause (1) thereof which shall read 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 in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, bye-law, rule, regulation; notification, custom or usage having the force of law in the 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 3) 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.
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.
Petitions to Supreme Court
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[1]. 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[2], a Constitution Bench had held that Article 370 was temporary in nature. According to counsel, subsequently in Sampat Prakash v. State of Jammu & Kashmir,[3] another Constitution Bench held (without considering the earlier decision in Prem Nath Kaul (supra)) that Article 370 is not a temporary provision because:
a. Neither the Constituent Assembly of Jammu and Kashmir nor the President had ever made a declaration that Article 370 ceased to be operative; and
b. In view of the proviso to Article 368 as it applied to Jammu and Kashmir, the President is required to exercise powers from time to time under Article 370 to bring into effect constitutional amendments made under Article 368 in the State of Jammu and Kashmir.
A reference to a larger Bench was also sought on the ground that the subsequent decision of the Constitution Bench in Mohd Maqbool Damnoo v. State of Jammu and Kashmir[4] ignored the interpretation of Article 370 in Prem Nath Kaul (supra) and, in any event, the judgment does not decide whether Article 370 can continue to operate after the Constitution of Jammu and Kashmir was adopted. The Constitution Bench in Dr Shah Faesal (supra) framed three questions:
“(i) When can a matter be referred to a larger Bench? .
(ii) Whether there is a requirement to refer the present matter to a larger Bench in view of the alleged contradictory views of this Court in Prem Nath Kaul case [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] and Sampat Prakash case [Sampat Prakash v. State of J&K, AIR 1970 SC 1118] ?
(iii) Whether Sampat Prakash case [Sampat Prakash v. State of J&K, AIR 1970 SC 1118] is per incuriam for not taking into consideration the decision of the Court in Prem Nath Kaul case [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] ?”
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 interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning. The Court in Prem Nath Kaul case [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] had to determine the legislative competence of the Yuvaraj, in passing a particular enactment.
The enactment was passed during the interregnum period, before the formulation of the Constitution of State of Jammu and Kashmir, but after coming into force of the Constitution of India. The observations made by the Constitution Bench in this case, regarding the importance given to the decision of the Constituent Assembly of the State of Jammu and Kashmir needs to be read in the light of these facts”
43. Second, the framework of Article 370(2) of the Indian Constitution was such that any decision taken by the State Government, which was not an elected body but the Maharaja of the State acting on the advice of the Council of Ministers which was in office by virtue of the Maharaja’s proclamation dated 5-3-1948, prior to the sitting of the Constituent 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 of the constitutional relationship between the Union of India and the State of Jammu and Kashmir, on which the State Government as defined under Article 370 might have already taken some decisions, before the convening of the Constituent Assembly, which the Constituent Assembly in its wisdom, might ultimately not agree with.
Hence, the Court in Prem Nath Kaul [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] indicated that the Constituent Assembly’s decision under Article 370(2) was final. This finality has to be read as being limited to those decisions taken by the State Government under Article 370 prior to the convening of the Constituent Assembly of the State, in line with the language of Article 370(2).
Third, the Constitution Bench in Prem Nath Kaul case [Prem Nath 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 Constitution after the dissolution of the Constituent Assembly of the State. This was not an issue in question before the Court, unlike in Sampat Prakash case [Sampat Prakash v. State of J&K, AIR 1970 SC 1118] where the contention was specifically made before, and refuted by, the Court. This Court sees no reason to read into Prem Nath Kaul case [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] an interpretation which results in it being in conflict with the subsequent judgments of this Court, particularly when an ordinary reading of the judgment does not result in such an interpretation.”
Current Status
On 11 Dec 2023, the Supreme Court of India upheld the decision of Article 370 abrogation.
Reference
Re: article 370 of the constitution, 2023
[1] Writ Petition (c) No. 1099 of 2019
[2] 1959 Suppl (2) SCR 270
[3] (1969) 2 SCR 365
[4] (1972) 1 SCC 536