2023 INSC 1058 Reportable IN THE SUPREME COURT OF INDIA

2023 INSC 1058

Reportable

IN THE SUPREME COURT OF INDIA

ORIGINAL WRIT / APPELLATE JURISDICTION

Writ Petition (Civil) No. 1099 of 2019

IN RE: ARTICLE 370 OF THE CONSTITUTION

With

Writ Petition (C) No. 871 of 2015

With

Writ Petition (C) No. 722 of 2014

With

SLP (C) No. 19618 of 2017

With

Writ Petition (C) No. 1013 of 2019

With

Writ Petition (C) No. 1082 of 2019

With

Writ Petition (C) No. 1068 of 2019

Digitally signed by

CHETAN KUMAR

Date: 2023.12.11

14:18:35 IST

Reason:

Signature Not Verified

With

Writ Petition (C) No. 1037 of 2019

With

Writ Petition (C) No. 1062 of 2019

With

Writ Petition (C) No. 1070 of 2019

With

Writ Petition (C) No. 1104 of 2019

With

Writ Petition (C) No. 1165 of 2019

With

Writ Petition (C) No. 1210 of 2019

With

Writ Petition (C) No. 1222 of 2019

With

Writ Petition (C) No. 396 of 2017

With

Writ Petition (C) No. 756 of 2017

With

Writ Petition (C) No. 398 pf 2018

With

Writ Petition (C) No. 924 of 2018

With

Writ Petition (C) No. 1092 of 2018

With

Writ Petition (C) No. 1162 of 2018

With

Writ Petition (C) No. 1048 of 2019

With

Writ Petition (C) No. 1268 of 2019

And With

Writ Petition (C) No. 1368 of 2019

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

a) Internal Constitutions of States .................................................... 176

b) Procedure for Indian States to ratify the Constitution ................... 183

III. Debates in the Constituent Assembly on Article 370 ....................... 187

IV. Inference .......................................................................................... 194

b. Scope of provisions in Article 370 ....................................................... 198

I. Placement in Part XXI of the Constitution and Marginal Note to Article

370 198

II. Interpretation of Article 370 .............................................................. 214

III. Inference .......................................................................................... 224

v. The effect of dissolution of the Constituent Assembly of Jammu and

Kashmir on the scope of powers under Article 370(3) ............................. 226

a. The judgment in Sampath Prakash ..................................................... 228

b. The limited power of the Constituent Assembly under Article 370 ...... 233

I. The structure of Article 370(1) and 370(2) ....................................... 234

II. The structure of Article 370(3) ......................................................... 241

c. Inference ............................................................................................. 242

vi. The Challenge to CO 272 ...................................................................... 251

a. Amendment of Article 370 through Article 370(1)(d) ........................... 251

I. The application of the Constitution to the State of Jammu and Kashmir

251

II. Paragraph 2 of CO 272 .................................................................... 256

III. The substance or effect of a provision is more important than its form

258

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

1. 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

2. 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. The petitioners have challenged the constitutionality of these

actions.

3. 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,

“Reorganisation Act”

“PDP”

PART A

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.

4. 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

PART A

c. The first proviso and second provisos to Article 3 of the Constitution

stand suspended.

5. 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.

6. 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.

7. 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.”

8. 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 :

“Reorganisation Bill”

PART A

“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

9. 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

“Reorganisation Act”

PART A

(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.

10. 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.

11. 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

12. 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

13. 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.

14. 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,

a Constitution Bench had held that Article 370 was

temporary in nature. According to counsel, subsequently in Sampat Prakash

v. State of Jammu & Kashmir,

another Constitution Bench held (without

Writ Petition (c) No. 1099 of 2019

1959 Suppl (2) SCR 270

(1969) 2 SCR 365

PART B

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.

15. 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

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

(1972) 1 SCC 536

PART B

consideration the decision of the Court in Prem Nath Kaul

case [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] ?”

16. 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

the convening of the Constituent Assembly of the State, in line with the

language of Article 370(2).

44. 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

PART C

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.”

C. Submissions

17. 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.

18. 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

i. Submissions of the petitioners

19. The Governor’s Proclamation under Section 92 of the Constitution of Jammu

and Kashmir dated 20 June 2018 is challenged as being void. The mandatory

pre-condition of the satisfaction of the Governor that the State government

cannot be carried out in accordance with the provisions of the Constitution,

was not fulfilled.

It was a political act, in violation of the Constitution, brought

about with the intention to ultimately abrogate Article 370.

Governor’s rule

was imposed on 20 June 2018, a day after the Bharatiya Janata Party

withdrew from the coalition on 19 June 2019. No opportunity was afforded to

the other parties to demonstrate strength in the house. Other parties – the

Congress, the PDP and the National Conference – had, in a fax to the

Governor expressed willingness to form a coalition.

It was incumbent upon

the Governor to reach out to the parties and explore the possibilities of

forming a government.

20. Section 92 of the Jammu and Kashmir Constitution envisages a mandatory

maximum period of six months of Governor’s rule, which cannot be extended

any further. Successive imposition of the President’s rule after Governor’s rule

defeats the scheme of Section 92 and amounts to a fraud on the Jammu and

Kashmir Constitution and the Indian Constitution.

The manner in which the

Union Government has acted and the decisions of the Governor and the

Written Submissions on Behalf of Mr. Kapil Sibal, Senior Advocate.

Written Submissions of Dr. Rajeev Dhavan, Senior Advocate.

Written Submissions on behalf of Mr. Kapil Sibal, Senior Advocate.

Submissions By Dr. Rajeev Dhavan, Senior Advocate.; Rejoinder on behalf Of Mr. Kapil Sibal Sr. Advocate.

PART C

President were all political stratagems to achieve outcomes that are

unconstitutional.

21. 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

. 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

; 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.

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.

Submissions By Dr. Rajeev Dhavan, Senior Advocate.

Written Submissions on behalf of Impleader by Manish Tewari & Mr. Abhimanyu Tewari, Advocate.

PART C

22. 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

;

b. The purpose of Article 356 is to restore governance in the State.

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

;

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

Thiru K.N. Rajagopal v. Thiru M. Karunanidhi, (1972) 4 SCC 733 [5 Judges], Submissions on Behalf of The

Petitioners, Mr Shekhar Naphade, Senior Advocate; Written Submissions By Sh. Sanjay Parikh, Senior Advocate;

Written Submissions of Gopal Sankaranarayanan, Senior Advocate on Behalf of the Petitioner; Rejoinder on behalf

of Mr. Kapil Sibal Sr. Advocate.

SR Bommai (Paras 108,113, 288, 289),

Outline of Submissions on Behalf of the Petitioners by Raju Ramachandran, Senior Advocate.

PART C

repealed or amended “by a competent Legislature or other authority.”

These words presume the power of the restored legislature to alter or

undo the changes made by the Union in respect of the State’s affairs.

Article 357(2) allows the subsequent State Legislature to alter or repeal

any laws made by the Parliament in the exercise of such powers. Thus,

the Parliament cannot make irreversible changes in the exercise of this

temporary power during the Proclamation under Article 356.

Dr. BR

Ambedkar clarified that the purpose of the power under Articles 356 and

357 was to ensure that the “form of constitution” was maintained

;

d. Article 250(2) states that laws shall cease to have effect after six months

from the date when the Proclamation ceases to operate

. Considering

the restorative purpose and the temporary nature of the power, the

President could not have, in the exercise of this power effected a

permanent change to the Constitution by way of the impugned actions;

e. In accordance with Article 356(1), the power of the Legislature and the

Executive of the State are transferred to the Parliament and the

President respectively. However, Article 356 does not envisage a

transfer of the constituent power to the President or to Parliament.

Constituent power cannot be transferred unless the Constitution of

Jammu and Kashmir specifically provides for it. The President does not

Written Submissions of Dr. Rajeev Dhavan, Senior Counsel; Written Submissions of Mr. Gopal Subramanium,

Senior Advocate on behalf of the Petitioner; Written Submissions on Behalf of The Intervenor By Dr. Menaka

Guruswamy, Senior Advocate; Written Submissions of Ms. Nitya Ramakrishnan, Senior Advocate on behalf of

Intervenors;

Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner.

Outline of Submissions on Behalf of the Petitioners by Raju Ramachandran, Senior Advocate.

PART C

acquire the power of the State Government under Article 370(1)(d), to

give concurrence, and Parliament does not acquire the constituent

powers of the Legislative Assembly to recommend a Presidential

notification under Article 370(3)

;

f. This Court in Krishna Kumar Singh v. State of Bihar

has held that

the President’s ordinance-making power cannot be treated as a

constitutional equivalent of ordinary legislative power, notwithstanding a

deeming provision which confers the same force and effect on it.

Similarly, the functions of the Union executive or legislature cannot be

treated as constitutional equivalents of the powers of the state executive

or legislature, due to a “democratic deficit”

; and

g. Articles 75 and 164 of the Constitution stipulate that the Council of

Ministers is collectively responsible to the Legislature. The State

Legislature is vested with certain non-legislative functions such as

questions and debates. Such non-legislative functions vested in the

State Legislature cannot be exercised by Parliament during President’s

rule

23. The will of the people finds no expression in the purported concurrence of the

State Government, essentially the Governor, since there was no Council of

Outline of Submissions on Behalf of the Petitioners by Raju Ramachandran, Senior Advocate; Synopsis and

Written Submissions/ Arguments.

(2017) 3 SCC 1

Written Submissions by Mr Gopal Subramanium, Senior Advocate.

Written Submissions of Dr. Rajeev Dhavan, Senior Advocate.

PART C

Ministers in place. Thus, the COs are undemocratic for want of public will and

public reason.

24. Article 370 must be interpreted keeping in mind the following principles:

a. Article 370 envisages three modes of cooperation between the Union

and the State of Jammu and Kashmir: the lowest degree is under the

first proviso to Article 370(1)(d) where only consultation with the State

Government is required; the second degree is under Article 370(1)(b)(ii)

and the second proviso to Article 370(1)(d), where consent of the

Government of the State is required; and the highest degree is under

Article 370(3) where the recommendation of the Constituent Assembly

of Jammu and Kashmir is required

;

b. Article 370 must be interpreted in the context of three pillars namely-

asymmetric federalism

, autonomy, and consent.

Asymmetrical

federalism, that is differential rights to certain federal sub-units is a part

of the Indian federal scheme. It is a part of the basic structure, as is

federalism

;

c. Article 370 reflects the agreement between two contracting parties

namely the acceding State of Jammu and Kashmir and the Dominion of

Outline of Submissions on Behalf of The Petitioners by Muzaffar H. Baig, Senior Advocate; Rejoinder on behalf

of Mr. Kapil Sibal Sr. Advocate.

Written Submissions on Behalf of Mr. Kapil Sibal.

Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade.

Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner.

Submissions on behalf of the petitioners by Senior Advocate Prashanto Chandra Sen.

PART C

India, under which the Constituent Assembly of Jammu and Kashmir

was given the power to finally determine the state’s affiliation to the

Union and its limits. Once this relationship was crystallised by the

Constitution of the State, there was no scope of change, since the

Constituent Assembly, solely empowered to change the relationship,

ceased to exist

; and

d. Article 370 recognized the constituent power of the people of the State

of Jammu and Kashmir articulated through the Constituent Assembly of

Jammu and Kashmir or otherwise, to make or remake the Constitution

of the state, subject to Article 1 of the Constitution of India.

25. The marginal note to Article 370 and the placement of the provision in Part

XXI of the Constitution cannot be used to hold that the provision is temporary

for the following reasons:

a. Since the Maharaja or his successors did not sign a merger agreement

with the Union of India, the State retained residual sovereignty and

Article 370 was incorporated in the Indian Constitution as a recognition

of the same.

The reason for placing Article 370 in Part XXI of the

Constitution of India was that the Constituent Assembly of India

assumed that as and when the Constituent Assembly of the State will

be established, it would recommend the abrogation of Article 370, and

Outline Of Submissions on Behalf Of The Petitioners By Muzaffar H. Baig, Senior Advocate.

Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner.

Submissions by Mr Zaffar Shah, Senior Advocate.

PART C

thereby fully integrate the state into the Union. It cannot be said that by

reason of being placed in Chapter XXI of the Constitution of India,

Article 370 could have been abrogated at any time by the President.

This is apparent also from the fact that the provision was kept out of the

purview of Article 368 of the Constitution, and a mechanism for its

abrogation was provided in Article 370(3).

Thus, it was temporary only

insofar as the Constituent Assembly was not in place at the time of its

incorporation into the Indian Constitution. It was a permanent provision

of the Indian Constitution notwithstanding its placement in Chapter XXI

of the Constitution and the state was to be governed by two

Constitutions

; and

b. The word ‘temporary’ in the marginal note, does not refer to the limited

duration of time, after which the Article would cease to exist. It implies

that unless the specific conditions of its repeal, that is, convening of the

Constituent Assembly of the State of Jammu and Kashmir cannot be

secured, the Article will continue to operate irrespective of the duration

of time.

26. Upon the enactment of the Constitution of Jammu and Kashmir, the

Constituent Assembly became functus officio and as such, Article 370

became permanent. Absent the recommendation of the Constituent

Submissions by Mr Zaffar Shah, Senior Advocate.

PART C

Assembly, Article 370 could not be amended and the Legislative Assembly

could not substitute the Constituent Assembly.

27. Article 370 could only have been repealed by the Constituent Assembly

between 1950 and1957. After that, that is after the Constituent Assembly of

the State ceased to exist, it can only be amended by way of the procedure

specified under Article 368, followed by its extension to the State of Jammu

and Kashmir by Article 370(1)(d). After the enactment of the Constitution of

Jammu and Kashmir and the consequent cessation of the Constituent

Assembly of the State, Article 370(1) alone survives since the only

mechanism of its repeal i.e. Article 370(3) could not be resorted to, without

the recommendation of the Constituent Assembly. As such, the dual

constitutional arrangement between the State and the Union attained

finality.

28. Contrary to the position taken by the senior counsel for certain Petitioners that

Articles 370(1) and 370 (3) are permanent facets of the Constitution of India,

after the dissolution of the Constituent Assembly, Mr Dinesh Dwivedi, senior

counsel argues that Article 370 was a temporary provision. The interim

arrangement in the form of Article 370 ceased to operate after the Constitution

of Jammu and Kashmir was enacted. Article 370 ceased to be a source of

power for the President, as was originally intended.

Mr Dinesh Dwivedi

disagreed with the proposition that since the Constituent Assembly chose to

Written Submissions on Behalf of Mr. Kapil Sibal.

Written Submissions Of Dr. Rajeev Dhavan, Senior Counsel.

Written Submissions By Shri Dinesh Dwivedi, Senior Advocate.

PART C

not recommend the abrogation of Article 370, Article 370(3) would continue

to operate after the dissolution of the Constituent Assembly.

He challenges

the impugned actions on the ground that any power under Article 370 could

no longer be exercised. A temporary provision could not be made a

permanent source of power to bring about the impugned Constitutional

Orders or the Reorganisation Act. After January 1957, no provisions of the

Constitution of India could be applied to the State of Jammu and Kashmir and

the Constitution of Jammu and Kashmir could not be repealed, being entirely

independent from the Constitution of India.

29. Unlike the other States, the State of Jammu and Kashmir retained a part of

the sovereignty even while acceding to the Dominion of India:

a. There was no merger agreement between the Dominion of India and

the State of Jammu and Kashmir, unlike other states. The terms of their

relationship were defined in the Instrument of Accession

whereby

though certain matters were acceded to the Union; residual sovereignty

was retained by the Maharaja in accordance with Clause 8 of the

Instrument. This position – that the residual sovereignty vested with the

Maharaja was affirmed by this Court as well

;

b. The very recognition of a separate Constituent Assembly for a state by

Written Submissions By Shri Dinesh Dwivedi, Senior Advocate.

“IoA”

Zaffar Shah; Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner;

Written Submissions of Mr. Dushyant Dave, Senior Advocate; Written Submissions By Shri Dinesh Dwivedi, Senior

Advocate.

PART C

the Constitution of India indicates that the Constitution of Jammu and

Kashmir which was the creation of a sovereign body, represented the

sovereignty of the state of Jammu and Kashmir. Once the Constituent

Assembly ceased to exist, the sovereignty was transferred to the

Constitution. This sovereignty is recognised by Article 370(3)

;

c. The sovereignty of the Constituent Assembly of Jammu and Kashmir is

clear also from Article 370(2) which effectively states that if any

proposal for conferring additional powers to the Union Parliament is

mooted once the Constituent Assembly comes into existence, it should

be placed before the Constituent Assembly and not before the State

government.

Once the Constituent Assembly ceased to exist, the

Constitution of Jammu and Kashmir assumed sovereignty. The

Constitution of the state and the Legislative Assembly of the State

created by the Constitution, are permanent.

The Constitution of

Jammu and Kashmir is an independent, perpetual document. Since it

was not created by the Constituent Assembly, it was neither

subordinate to the Constitution of India, nor to Article 370. It cannot be

substituted or repealed by an act of the Union Government

;

d. This Court has recognised that internal sovereignty may be divided by

a distribution of legislative powers, which is an essential feature of

Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade, Senior Advocate.

Submissions on behalf of the Petitioners, Mr Shekhar Naphade, Senior Advocate.

Written Submissions By Shri Dinesh Dwivedi, Senior Advocate.

PART C

federalism

; and

e. The sovereignty of the Ruler was recognised in the 1939 Constitution

of Jammu and Kashmir, and contrary to the Respondents’ argument

(that the Ruler’s sovereignty ended after he executed the IoA), the

sovereignty continued even after the IoA or the 1949 Declaration.

Read with other proclamations and the IoA, the Declaration did not take

away the Ruler’s sovereignty

. The power of the Union flowed from the

IoA with respect to the three subjects therein. It was later extended to

cover all the entries in List I by the Ruler in 1991. In 1991, Section 5 of

the Jammu and Kashmir Constitution was modified to end the

sovereignty of the Ruler and to adopt the principle of collective

sovereignty of the legislature. However, this 1991 Amendment should

be viewed in light of the Parliament’s limited power until the enactment

of the Constitution of Jammu and Kashmir.

30. CO 272 issued under Article 370(1)(d) is unconstitutional for the following

reasons:

a. Article 370(1)(d) refers to the modification of the Constitutional

provisions and their application to India. However, CO 272 goes beyond

mere modification of the provisions of Article 367 and their application

SR Bommai vs Union of India; para 97 Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade, Senior

Advocate.

Rejoinder by Mr. Dinesh Dwivedi, Senior Advocate.

PART C

to the State of Jammu and Kashmir. It vests the power of a certain kind,

meant to be exercised by a certain body, in a completely different body.

This is tantamount to changing the fundamental basis of Article 370(3)

which could have only been done through an amendment of Article

370(3). The expression “Constituent Assembly” cannot be substituted

with “Legislative assembly” in view of Article 370(2) which ascribes a

specific meaning to the former term.

The expression ‘Constituent

Assembly’ is not ambiguous and no other meaning can be ascribed to

. The Constituent Assembly is completely different from the

Legislative Assembly. The latter is neither a substitute nor the

successor of the former.

CO 272 is thus a colourable exercise of the

President’s power

;

b. Article 367 is an interpretation clause. The CO does not merely change

the manner of interpretation but substitutes the provision by conferring

constituent power of the Constituent Assembly on the Legislative

Assembly. This amounts to an amendment of Article 370(3)

;

c. The Legislative Assembly had no power under the Constitution of

Jammu and Kashmir to amend any provision of the Constitution of

Submissions by Mr Zaffar Shah, Senior Advocate; Written Submissions of Mr. Gopal Subramanium, Senior

Advocate on behalf of the Petitioner; Written Submissions of Gopal Sankaranarayanan Senior Advocate on Behalf

of the Petitioner; Written Submissions On Behalf Of The Intervenor By Dr. Menaka Guruswamy, Senior Advocate.

Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade, Senior Advocate; Written Submissions of

Gopal Sankaranarayanan Senior Advocate on Behalf of the Petitioner.

Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade, Senior Advocate.

Written Submissions On Behalf Of The Intervenor By Dr. Menaka Guruswamy, Senior Advocate.

Submissions by Mr. Zaffar Shah, Senior Advocate; Submissions On Behalf Of The Petitioners, Mr Shekhar

Naphade, Senior Advocate.

PART C

India, according to Section 147 of the Constitution of Jammu and

Kashmir. Consequently, neither the Legislative Assembly nor the

Governor could have given consent to CO 272. CO 272 is invalid

because it vests in the Legislative Assembly a power that the

Constitution of Jammu and Kashmir expressly bars

;

d. Article 370 recognizes the unique constitutional status of the state of

Jammu and Kashmir. As such, the provision contains a provision for its

own amendment in Article 370(3). When such a specific provision

exists, the amendment cannot be done in any other manner

;

e. Article 370(1)(d) is for application of provisions “other” than Articles 1

and 370 to the state of Jammu and Kashmir. Since CO 272 pertains to

Article 370, any amendment to the provision can only be done through

Article 370(3) and not through Article 370(1)(d);

f. Article 370 was previously amended through the exercise of power

under Article 370(3). COs 48 and 72 were issued under Article

370(1)(d), and they added and amended sub-clause 4 to Article 367.

However, unlike CO 272, COs 48 and 72 did not contain any references

to Article 370. They were purely clarificatory orders. They did not make

any substantive changes to Article 370.

However, CO 272 makes

Written Submissions by Sh. Sanjay Parikh, Senior Advocate.

Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner.

Mohd Maqbool Damnoo vs State of Jammu and Kashmir, (1972) 1 SCC 536; Written Submissions of Mr. Gopal

Subramanium, Senior Advocate on behalf of the Petitioner.

PART C

amendments to Article 370, through the backdoor

;

g. The Respondents’ argument that the proviso to Article 370(3) and the

requirement of a recommendation of the Constituent Assembly ceased

to exist after the dissolution of the Constituent Assembly is incorrect.

While the powers under Article 370(1)(b) are in the nature of amending

powers, the power under Article 370(3) is a constituent power.

Considering the limitations placed on both, to accept the Respondents’

argument would lead to an inconsistent conclusion that the amending

provision would be more onerous than abolishing it under Article 370(3).

Thus, Article 370(3) could only be abrogated by a Constituent body and

no less

;

h. Article 370 could have been amended only by resorting to Article

370(3), subject to the proviso thereto. This was reiterated by this Court

in Prem Nath Kaul v. State of J&K

, which was decided after the

Constituent Assembly of Jammu and Kashmir had ceased to exist;

i. In the alternative, Article 367 does not apply to Article 370(3) because

the latter starts with a non-obstante clause. Impliedly, Article 367 cannot

Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner.

Rejoinder on behalf of Mr. Kapil Sibal Sr. Advocate pg 18-19 para 41; Brief Written Submissions in Rejoinder on

Behalf of Ms. Warisha Farasat, Advocate for the Intervenor.

1959 Supp (2) SCR 270.

PART C

be used to make any changes to Article 370(3)

;

j. The Constitution cannot be amended by an executive order. Only

Parliament in exercise of its constituent power can amend the

Constitution of India. The CO, which effectively amends the

Constitution, could not be affected by an executive order

;

k. CO 272 made CO 1954 inapplicable. It was issued with the due

concurrence of the Constituent Assembly of the state, which was in

existence at the time. As such, the Governor had no jurisdiction to

concur to make such a CO, issued with the concurrence of the

Constituent Assembly non-applicable

;

l. The wholesale application of the Constitution of India suffers from a lack

of application of mind – which was a mandatory pre-condition. Article

370(1)(d) contemplates a situation where, based on the exigencies of

the situation, and upon due application of mind, certain specific

provisions of the Constitution are extended to the State of Jammu and

Kashmir in order to address the said exigencies. CO 272 applies the

provisions of the entire Constitution of India to the state. No

deliberations took place to decide the suitability of those provisions for

the state. Such wholesale application of the whole Constitution, in one

Written Submissions On Behalf Of Mr. Kapil Sibal, Sr. Adv;

Submissions by Mr. Zaffar A Shah, Senior Advocate Rejoinder.

Written Submissions Of Dr. Rajeev Dhavan, Senior Counsel.

Submissions by Mr Zaffar Shah, Senior Advocate.

PART C

go, is apparently without any deliberation

;

m. The Respondents have erroneously relied on Mohd. Maqbool

Damnoo v. The State of Jammu and Kashmir

to argue that the

Constituent Assembly and the Legislative Assemblies are

interchangeable. In the said case, the Court had held that the Governor,

being the successor to Sadr-i-Riyasat, can exercise the same powers

as the latter. The reliance on this case is misplaced

; and

n. The IoA was meant to accede to the Union. The State retained

sovereignty on matters except those stipulated in the IoA. The

Constituent Assembly of Jammu and Kashmir was the fulfilment of the

promise to the people of the State that the issue of accession would be

referred to them for ratification. Therefore, treating the Legislative

Assembly as a substitute for Constituent Assembly of the State, would

violate the terms of the IoA as well as the very integration of the state

into the Union on its own terms.

31. CO 272 is unconstitutional because the President could not have secured his

own concurrence to fulfil the second proviso to Article 370(1)(d):

a. CO 272 has been issued purportedly with the concurrence of the State

Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner.

(1972) 1 SCC 536

Rejoinder on behalf of Mr. Kapil Sibal Sr. Advocate.

Written Submissions of Ms. Nitya Ramakrishnan, Senior Advocate.

PART C

Government. However, since the Legislative Assembly of the State of

Jammu and Kashmir was dissolved by the Governor when CO 272 was

issued, the Council of Ministers was not in place and no such

concurrence could have been sought. The Governor was not acting on

the aid and advice of the Council of Ministers. This is not only against

the mandate of the Governor’s powers under the Constitution of India,

but also, does not fulfil the concurrence requirement under the second

proviso to Article 370(1)(d);

b. The President usurped the power of the State Government. The

provisos to Article 370(1)(d) distinguish between matters specified and

not specified in the IoA. Article 370(1) begins with a non-obstante

clause. Therefore, notwithstanding any other provisions of the

Constitution of India, including Article 356, the President has the power

to extend the application of certain provisions to the State of Jammu

and Kashmir. This power is subject to the second proviso. Notably,

Article 356 does not contain any non-obstante clause. Impliedly,

considering the importance of non-obstante clauses, the concurrence

can only be given by the State Government and not the President. The

State Government was not in existence at the time CO 272 was issued.

Absent such concurrence as required by the second proviso, CO 272

could not have been issued

; and

Written Submissions of Gopal Sankaranarayanan Senior Advocate on Behalf of the Petitioner; State Bank of

India vs Santosh Gupta (2017) 2 SCC 538, Written Submissions On Behalf Of The Intervenor By Dr. Menaka

PART C

c. Without prejudice to the above, even if the State Government’s

functions could be validly exercised by the President according to

Article 356, Article 356(1)(a) permits the President to exercise the

“functions” and not the “privileges” of the State Government. To concur

with the President in accordance with Article 370(1)(d) is a privilege and

not a function and thus could not have been exercised by the President,

even under Article 356.

32. CO 273 dated 6 August 2019 is unconstitutional for the following reasons:

a. CO 273 states that the President, on the recommendations of the

Parliament, had declared that all the clauses of Article 370 have ceased

to be operative, except a clause that effectively applies the Constitution

of India mutatis mutandis to the State of Jammu and Kashmir

;

b. Consequent to the invalidity of CO 272, CO 273 is void ab initio for the

same reasons as stated above in respect of CO 272

;

c. CO 273 was issued in exercise of power under Article 370(3). However,

there was no “recommendation” from a representative body competent

to issue such a recommendation under the proviso to Article 370(3).

Since the recommendation of the Constituent Assembly is mandatory

under the proviso to Article 370(3), and no such recommendation could

Guruswamy, Senior Advocate; Written Submission On Behalf Of Impleader By Manish Tewari & Mr. Abhimanyu

Tewari.

Written Submissions of Gopal Sankaranarayanan Senior Advocate on Behalf of the Petitioner.

Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner.

Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner; Written

Submissions On Behalf Of The Intervenor By Dr. Menaka Guruswamy, Senior Advocate.

PART C

have been obtained in view of the non-existence of the Constituent

Assembly at the relevant time, CO 273 is ultra vires Article 370(3).

The

proviso to Article 370(3) was included to give power to the people of the

State to decide whether they wanted to integrate with India

;

d. The Constituent Assembly of Jammu and Kashmir was the sole authority

to determine whether Article 370 ought to continue to exist. After its

dissolution, no such determination could have been made. The

Constituent Assembly had already expressed its desire to not abrogate

the special status of Jammu and Kashmir. Therefore, the President had

no power to act contrary to the desire of the Constituent Assembly.

The

intention was to make it a temporary power exercisable only by the

Constituent Assembly, and (without prejudice), by the people of the

State to abrogate Article 370

;

e. Even assuming CO 272 was valid to the extent that it substituted the

Constituent Assembly with the Legislative Assembly, even then the

requirement of recommendation was not satisfied since CO 273 was

issued at a time when the Proclamation under Article 356 was in force

and the Legislative Assembly was not in existence

;

Outline of Submissions on Behalf of the Petitioners by Raju Ramachandran, Senior Advocate.

Written Submissions on Behalf of Mr. Kapil Sibal.

Sampat Prakash Vs State of Jammu and Kashmir 1969 2 SCR 365, “This clause clearly envisages that the article

will continue to be operative and can cease to be operative only if, on the recommendation of the Constituent

Assembly of the State, the President makes a direction to that effect…. “This makes it very clear that the Constituent

Assembly of the State did not desire that this article should cease to be operative and, in fact, expressed its

agreement to the continued operation of this article by making a recommendation that it should be operative with

this modification only.” Written Submissions of Mr. Dushyant Dave, Senior Advocate.

Rejoinder on behalf Of Mr. Kapil Sibal Sr. Advocate.

Outline of Submissions on Behalf of the Petitioners by Raju Ramachandran, Senior Advocate.

PART C

f. Unlike other states which acceded to the Constitution of India, the State

of Jammu and Kashmir had a separate Constitution and had not merged

with the Union. It had acceded to India only on the terms agreed to by

way of the IoA. CO 273 has invalidated the IoA

;

g. CO 273 (along with CO 272) amounts to the destruction of the basis of

Article 370 by a unilaterally reneging by the Union of India, of the

compact made with the people of Jammu and Kashmir

; and

h. The Respondents argue that since the Constituent Assembly was

dissolved, recourse to the proviso to Article 370(3) was not possible and

the maxim lex non cogit ad impossibilia (that is, law does not compel the

doing of impossibilities) justifies the impugned actions without

recommendations from the Constituent Assembly. This is not tenable in

view of the above arguments based on Article 370(2) and the difference

between the Constituent and Legislative Assembly.

33. The Reorganization Act is unconstitutional for the following reasons:

a. The Presidential Proclamation issued under Article 356 suspended the

first proviso to Article 3 of the Constitution to the extent that it relates to

the reference by the President to the Legislature of the state for its views

and the whole of the Second proviso to Article 3 as it applies to the

State of Jammu and Kashmir by which a Bill under Article 3 could be

Submissions by Mr Zaffar Shah, Senior Advocate.

Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner; Rejoinder on

behalf Of Mr. Kapil Sibal Sr. Advocate.

Rejoinder on behalf Of Mr. Kapil Sibal Sr. Advocate.

PART C

initiated only with the consent of the Legislature of the State. A law

which brings permanent changes cannot be brought into force by

temporarily suspending the provisos to Article 3. Since the

Proclamation under Article 356 itself was void (for reasons mentioned

above), the suspension of Article 3 was similarly void. Even otherwise,

the suspension of the provisos to Article 3 was neither an incidental nor

consequential exercise of powers under Article 356(1). It was beyond

the President’s power conferred under Article 356(1)(c), which cannot

be to abrogate the State itself. The Reorganisation Act is not a law

which the Parliament would be competent to make under Article 357(1)

and Article 356

;

b. The suspension of the proviso to Article 3 prescribing a mandatory

reference to the State Legislature by the President had the effect of

suspending the will of the people, protected under the proviso. The

purpose of the proviso is the mandatory ascertainment of the will of the

people, before changing the boundary, name or area of the state. The

President was thus required to ensure that their “wishes have been

consulted”, and that, only at the instance of the state legislature, such

a change could be effected

;

c. In any case, even if the second proviso to Article 3 was validly

suspended, it was merely an acknowledgment of the territorial integrity

Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade, Senior Advocate.

Written Submissions on Behalf of Mr. Kapil Sibal, Senior Advocate.

PART C

of the State of Jammu and Kashmir and not the source of it. The

territorial integrity of the state of Jammu and Kashmir and its continued

existence is dehors the second proviso to Article 3. The territorial

integrity of the State of Jammu and Kashmir stems from the Constitution

of Jammu and Kashmir, and was permanent, sovereign, and

recognized by the Constitution of India. The proviso to Article 3 was

merely a formal recognition of the territorial integrity

;

d. The Reorganisation Act has bypassed the mandatory procedures and

safeguards under Article 368 by resorting to Article 3. When there is a

particular course of action under particular provisions, it cannot be

bypassed by recourse to a general provision that does not directly deal

with the subject matter. Article 4 states that the laws referred to in

Articles 2 or 3 shall contain provisions for amending the first and the

fourth schedule, as may be necessary to give effect to the provisions of

the law and may contain supplemental, incidental or consequential

provisions, as the Parliament may deem fit. However, Article 4(2) states

that no such law shall be deemed to be an amendment of the

Constitution for the purpose of Article 368. Article 4(2) implies that

Article 3 cannot be used to supplant Article 368, which is a specific

provision in respect of constitutional amendments

. The

Reorganisation Act violates Article 3;

Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade, Senior Advocate.

Written Submissions of Mr. Chander Uday Singh, Senior Counsel.

PART C

e. The text and the structure of Article 3 do not support the degradation of

a state into a Union Territory. There is no categorical power to degrade

a state into an Union Territory and consistent state practice indicates

movement in the direction of greater federal self-governance, rather

than less. Sub-clauses (b) to (e) of Article 3 deal with areas, boundaries,

and names; sub-clause (a) read with Explanation 2 sets out the broader

power to form a new state or Union Territory. There are a number of

ways in which this is permissible and none of them entail the

degradation of a state into a Union Territory.

Article 3 has to be read

in a manner that is consistent with the principles of federalism. It cannot

be invoked in order to fulfil the political objectives of the party in power

at the Centre

;

f. The 2019 Act is unrelated to the nature of powers prescribed by Article

3 of the Constitution. Article 3 does not deal with the reorganization of

a State into a Union Territory. Unlike the other elements of Article 3

(clauses a-e), the reorganization of a state into Union Territories

involves a drastic transfer of legislative and executive power. The

Constituent Assembly would have not intended that such a transfer be

affected by Parliamentary legislation

;

g. The Reorganisation Act has the effect of bringing the following changes:

Written Submissions of Mr. Chander Uday Singh, Senior Counsel; Submissions On Behalf Of The Petitioners,

Mr Shekhar Naphade, Senior Advocate.

D.C. Wadhwa Vs State of Bihar (1987) 1 SCC 378. Written Submissions Of Mr. Dushyant Dave, Senior Advocate.

Written Submissions of Mr. Chander Uday Singh, Senior Counsel.

PART C

Article 73 of the Constitution of India on the State, erasing the executive

powers under Article 162; depriving the entire territory of Ladakh of its

rights under Article 54 and 55, altering the representation of the territory

in the Council of States; excluding the territory from the electoral college

of the Rajya Sabha – all of these changes fall squarely under the

clauses (a) to (e) of the proviso to Article 368 (2). Thus, these changes

could have been affected only by recourse to Article 368(2), subject to

procedural safeguards such as ratification by states.

A law that, inter

alia, denudes the state of its legislative assembly such as the impugned

Act cannot be brought under Article 3

;

h. There is a qualitative difference between the reduction of a state into a

Union Territory as opposed to the situations envisaged in Article 3 –

each of the sub-clauses of Article 3 refers to a situation where as a

result of a law, citizens may find themselves living in an existing or a

new state. The federal representative democracy enjoyed by the

citizens under these provisions is either constant or enhanced. As

opposed to this, the degradation of a State into a Union Territory causes

a diminishment or a loss of representative democracy

;

i. The purpose of Article 3 must be read in accordance with the State

Reorganisation Report 1955. The Report suggested that the

Written Submissions of Mr. Chander Uday Singh, Senior Counsel.

PART C

demarcation of Indian States into Part A, B, C and D states was not

feasible. Thus, the Constitution (Seventh Amendment) Act 1956

removed these distinctions and introduced the concept of Union

Territories. From 1955 onwards, through various legislations under

Article 3 the present states of Goa, Himachal Pradesh, Manipur etc.

were converted from Union Territories to States

;

j. There were historical and cultural reasons to designate certain

territories as Union Territories and not full-fledged states

. In certain

cases, it was not deemed reasonable to create a full-fledged state for a

small area, and the cultural differences of the people in these territories

meant that they could not be subsumed in the neighbouring states.

Such territories were considered fit to be centrally administered.

However, in due course of time, these territories came to be designated

as states – which was a progressive step towards federalism. However,

in the history of Independent India, an existing state has never been

retrograded into a Union Territory. This leads to a diminishment of

representative democracy and federalism. The Indian understanding of

federalism is not to treat states as mere administrative units. The adage

that India is an “indestructible union of destructible states” only means

that the states can be reorganized by the Parliament; but they cannot

be extinguished or retrograded into the Union Territories, in violation of

“Seventh Constitution Amendment”

Written Submissions of Mr. Chander Uday Singh, Senior Counsel.

Written Submissions on Behalf of Mr. Kapil Sibal.

PART C

the federal structure

; and

k. Article 1(1) states that India, that is Bharat, shall be a Union of States.

The power under Article 3 cannot be used by Parliament to create a

‘Union of Union Territories’. The issue is not whether Parliament would

in fact do that. The power of the Union under Article 3 thus clashes with

the principle of federalism.

34. The Reorganisation Act did not represent the people of Jammu and Kashmir

because:

a. Any alteration to the existing units, their territories, boundaries, and

names should come not from the Centre but from the people familiar

with the unit concerned. The people affected by the alteration should

desire such an alteration. The Centre which is not aware of the local

conditions and relevant considerations for such a course, should leave

the alteration of such boundaries to the competent bodies such as the

Boundary Commission

;

b. The Rajya Sabha expressed its views in support of the Reorganisation

Bill. Only 4 out of the 240 members of the Rajya Sabha were from

Jammu and Kashmir. Therefore, the Rajya Sabha cannot be said to be

Written Submissions of Mr. Chander Uday Singh, Senior Counsel; Written Submissions on Behalf of Mr. Kapil

Sibal.

Written Submissions of Mr. Chander Uday Singh, Senior Counsel.

(Constituent Assembly Debates on November 17, 1948, Speech by Mr. KT Shah, Book 2, Pgs. 437-438);

Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade, Senior Advocate.

PART C

representative of the will of the people of the State. The will of the

people could have been expressed only through the Legislative

Assembly of the State. The Assembly was dissolved and elections to

the Assembly were deliberately not held only with a view to enact the

impugned Act

100

; and

c. The people of the state of Jammu and Kashmir must initiate change

rather than the Parliament, which is not the true representative of the

people of the state. If the people do not feel the need to abrogate or

modify Article 370, they would have done so through their

representatives. Just as Parliament cannot decide the members of the

Rajya Sabha on behalf of the states, it cannot decide on behalf of the

people of the state. Bicameralism and shared sovereignty would

prohibit this unilateral non-democratic process wherein the people of

the State are excluded.

101

ii. Submissions of the Union of India

102

35. The process of constitutional integration of Jammu and Kashmir bears all the

resemblance with the process of constitutional integration of various

territories of India, namely democratization combined with merger of small

states, formation of union of states, the idea of having constituent assemblies

for framing constitutions, etc. There was no distinct or special compact

100

Submissions On Behalf of The Petitioners, Mr Shekhar Naphade, Senior Advocate.

101

Written Submissions of Ms. Nitya Ramakrishnan, Senior Advocate, Rejoinder.

102

Mr R Venkataramani, the Attorney General for India made prefatory submissions which are recorded in the initial six

paragraphs below. Thereafter the substantive submissions were made by Mr Tushar Mehta which are encapsulated after

the submissions of the Attorney General.

PART C

between Union of India and Jammu and Kashmir as far as the constitutional

integration process was concerned.

103

36. It was open to the President to take a final stock of the exercise of the authority

under Article 370(1)(d), and to decide as to whether there is a need of

updating exercise at all, or there is a need for any other invocation of Article

370(1)(d). This power of the President is not limited or conditioned by any

practice in relation to Article 370 in the past.

104

37. Article 370 was conceived and designed to aid the constitutional integration

process on the same lines as it happened with other states. Its continued

exercise over a period cannot be seen as a cloud over or distortion of its

original purpose.

105

38. Border states are a distinct class of territories and their reorganisation under

Article 3 ought to receive distinct consideration.

106

39. Neither asymmetrical federalism nor any other federal features have been

infringed.

107

40. No rights in relation to representative democracy have been taken away.

108

41. Article 370 is the only provision in the Constitution which the Constitution itself

declares to be “temporary”. This understanding that it is temporary is furthered

from the drafting history of the article, debates in the Constituent Assembly,

103

Written Submissions of Mr. R. Venkataramani, Attorney General for India

104

Written Submissions of Mr. R. Venkataramani, Attorney General for India

105

Written Submissions of Mr. R. Venkataramani, Attorney General for India

106

Written Submissions of Mr. R. Venkataramani, Attorney General for India

107

Written Submissions of Mr. R. Venkataramani, Attorney General for India

108

Written Submissions of Mr. R. Venkataramani, Attorney General for India

PART C

Parliamentary debates, the gradual issuance of constitution orders. The other

provisions of the Part XXI are named either “special provisions” or “transitory

provisions”.

109

42. The effect of Article 370(1) was to permit two organs under the Constitution

of India, by way of an Executive Order, to create, amend or destroy, any

part/provision of the Constitution of India [except Article 1] at their free will and

apply such tailored constitutional provisions to the State of Jammu and

Kashmir. The expansive width of this power shows it could not have been

intended to be a permanent provision – either by efflux of time or in any other

manner.

110

43. The impact of Article 370 was to be deprive the residents of Jammu, Kashmir

and Ladakh from being treated at par with their fellow citizens in the rest of

India. Article 370 deprived them of several fundamental and statutory rights

without any legislative or parliamentary process. Such a consequence would

obviously be known to the framers of the Constitution and therefore, the

framers could have never intended for it to be a permanent provision.

111

44. The abrogation of Article 370 brings the residents of Jammu and Kashmir at

par with the citizens residing in the rest of the country, confers them with all

rights flowing from the entire Constitution as well as hundreds of beneficial

109

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

110

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

111

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

PART C

legislations. Therefore, applying the Constitution of India to the State can

never be an “arbitrary act”.

112

45. This is the only provision in the Constitution where the application of (i) the

provisions of the Indian Constitution; and (ii) the application of beneficial

legislations to the residents of Jammu and Kashmir, is made dependent upon

the Government of the day agreeing to the application. Such an arrangement

could never have been conceived by the framers of the Constitution.

113

46. Article 370 is the only provision which provides for a mechanism (by way of

Article 370(3)) by which it would cease to be in existence. A provision

intended to be permanent would not have such an “inbuilt extinguishing

clause”.

114

47. The proviso to Article 370(3) was to remain in operation only during

subsistence of the Constituent Assembly of Jammu and Kashmir because:

115

a. When the Jammu and Kashmir Constituent Assembly was formed,

Article 370 of the Constitution of India was already in existence. Being

aware of Article 370(3) the Constituent Assembly of Jammu and Kashmir

could have, at the time of its dissolution –

i. Recommended to the President not to exercise his powers under

Article 370(3);

112

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

113

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

114

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

115

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

PART C

ii. Recommended some exceptions and modification with which

Article 370 could have remained in force;

iii. Recommended the deletion of sub-clause (3) and consequently

sub-clause (2), making Article 370(1) permanent;

iv. It could have changed the marginal note substituting the word

“temporary” with “permanent” and “Constituent Assembly” with

“Legislative Assembly” in Article 370(3);

v. Recommended the deletion of Article 370(1)(d), freezing the

relationship between the State and the Union as it existed when the

Constitution [Application to Jammu and Kashmir] Order, 1954 was

passed by CO 48 by the President of India; and

vi. Despite these powers of recommendation being available and

despite being conscious of the availability of the power, the

Constituent Assembly chose not to do any of this and was

dissolved.

b. Once the State Constituent Assembly ceased to exist, the proviso to

Article 370(3) itself ceases to exist and the President becomes the sole

repository of powers under Article 370(3). He has a duty to exercise this

power in the interests of the residents of the State even in the absence

of a recommendation.

48. The petitioners’ assertion that the decision to abrogate Article 370 was taken

purely by executive feat is incorrect. The process followed clearly reflects the

PART C

participation of the entire nation through their chosen representatives both in

the Lok Sabha and the Rajya Sabha.

116

49. If the President cannot exercise the powers under Article 370(3), it would

mean that the existence and exercise of power of the President of India

provided for in the Indian Constitution is dependent upon a decision or a lack

of it by a body outside the Constitution of India.

117

50. If the mere absence of the Constituent Assembly mentioned in the proviso to

clause 3 of Article 370 is treated as rendering the power of the President of

India nugatory and redundant, it would mean that under Article 370(1)(b) and

370(1)(d), any provision of the Constitution of India can be amended and

applied to the State of Jammu and Kashmir. Even the provisions which are

part of the basic structure of the Constitution can be modified and applied to

Jammu and Kashmir or even stultified and eradicated in its application to

Jammu and Kashmir – as has happened in the past. This interpretation would

amount to placing Article 370 above even the basic structure of the

Constitution of India.

51. Even if the State Constituent Assembly was currently in existence, the limited

role envisaged for it was to merely make a “recommendation”. Such a

recommendation was not binding upon the President.

118

52. Considering the limited role that the State Constituent Assembly was to play,

its replacement with the “Legislative Assembly” and the recommendation by

116

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

117

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

118

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

PART C

Parliament in place of the State Legislative Assembly passes muster.

Parliament is not an undemocratic body and along with the Council of States,

it represents federal aspirations.

119

53. Parliament is the repository of the democratic will of the entire nation and in

a situation which concerns the relationship of one federal unit with other

federal units, the apt constitutional authority to exercise democratic powers

as per the Constitution would be Parliament. The question concerns all States

in the federal setup and not merely Jammu and Kashmir.

120

54. The power of the President under sub-clause (3) of Article 370 is unfettered

because (a) Article 370 begins with a non-obstante clause “notwithstanding

anything contained in the Constitution of India”; and (b) Sub-clause (3) of

Article 370 begins with a non-obstante clause “notwithstanding anything in

the foregoing provisions of this Article”. The exercise of powers by the

President is, thus, not controlled either by any constitutional provisions

including the provisions of Article 370.

121

55. The replacement of the term “Constituent Assembly” with “Legislative

Assembly” was necessary to democratize the decision-making process of the

President.

122

119

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

120

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

121

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

122

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

PART C

56. Parliament had to exercise the powers of the Legislative Assembly

because:

123

a. Of the Emergency under Article 356(1)(b);

b. Considering the strategic significance of the State from the point of view

of the sovereignty and integrity of nation, it is desirable that every federal

unit should, through its representatives, both at the Lok Sabha and at

the Rajya Sabha, participate in the decision-making process; and

c. The Constituent Assembly of India was exercising constituent power

while the Constituent Assembly of Jammu and Kashmir was exercising

“legislative” power.

57. Clause (3) of Article 370 is an extraordinary, unique and unprecedented

clause. A provision in the nature of Article 370(3) is not present in any

constitutional document or any provision of the Indian Constitution. It is not

possible to classify the power under clause (3) under a specific nomenclature.

The power under clause (3) of Article 370 is a plenary Presidential power,

specially designed for a “temporary” provision.

124

58. The position as far as the State of Jammu and Kashmir is concerned, even

prior to the coming in to force of Article 1 and the Constitution of India, was:

125

a. By the IoA, the ruler surrendered his authority; and

123

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

124

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

125

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

PART C

b. By the proclamation dated 25 November 1949, the ruler surrendered his

absolute power in regard to the affairs of the State.

59. The Constituent Assembly of Jammu and Kashmir was formed by a ruler who

himself had surrendered his sovereignty. The document called the

Constitution of Jammu and Kashmir and the body framed for its creation

cannot claim any equivalence with the Constitution of India and the

Constituent Assembly of India. This is because the Constituent Assembly of

Jammu and Kashmir and the resultant Constitution of Jammu and Kashmir:

126

a. Were formed in 1951 by the Proclamation of the Maharaja who had

already acceded to India;

b. Were formed after the Constitution of India already included the State of

Jammu and Kashmir under the Schedule to Article 1 thereby making it a

part of India, devoid of any sovereignty;

c. Were not framed in their classical sense as documents for a new nation

or for providing an independent model of governance. It was only a

legislative enactment for the internal governance of the State and

subject to the Constitution of India; and

d. Had a limited mandate and could not have overridden the provisions of

the Indian Constitution qua Jammu and Kashmir.

126

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

PART C

60. The State Constitution does not establish a republican form of government in

its entirety as it was dependent on the real sovereign document i.e., the

Constitution of India.

127

61. The Indian Constitution clearly establishes the Union of India as a sovereign

democratic republic. The State Constitution neither establishes sovereignty

nor does it claim to do so. The Preamble is indicative of this fact.

128

62. To become a fundamental document, a Constitution must necessarily include

several facets of undisputed sovereignty including the power to acquire new

territory [which, in itself include power to “cede” its own territory]. This is

absent in the State Constitution as it was already a part of the Indian

Constitution under Article 1.

129

63. The power of President under Article 370(3) necessarily pre-supposes the

repeal of every document which is required to be repealed to ensure that the

entire Constitution of India is made applicable to Jammu and Kashmir without

any hinderance or legal hurdle. This power necessarily inheres in the

President of India under Article 370(3).

130

64. There can only be one supreme document known as the Constitution flowing

from the power conferred by the people of India. All other enactments

[whether known as a constitution or otherwise] are subordinate to the

127

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

128

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

129

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

130

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

PART C

Constitution of India and the body creating such other documents is also

subordinate to the Constitution of India.

131

65. Article 367 has previously been utilised to modify Article 370. This is a

legitimate route to modify Article 370.

132

66. When the Reorganisation Act was enacted, the second proviso to Article 3

(which applied to the State of Jammu and Kashmir alone) was not in force.

This is because CO 272 issued by the President made the entire Constitution

applicable to the State in supersession of any previous Constitutional Orders.

As a result, all the ‘modifications’ of the Constitution were superseded and

only the first proviso was in force. Hence, there was no requirement to comply

with the second proviso.

133

67. The power of Parliament under Article 3 is a plenary power which may be

exercised during the subsistence of a proclamation under Article 356. States

have previously been reorganised during the subsistence of a State

Emergency.

134

68. Under Article 3, Parliament has the power to convert a State into two Union

territories.

135

131

SBI v. Santosh Gupta, (2017) 2 SCC 538; Written Submissions of Mr. Tushar Mehta, Solicitor General of India;

Written Submissions of Mr. V K Biju, Advocate

132

List of Dates by Mr. Tushar Mehta, Solicitor General of India

133

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

134

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

135

Written Submissions of Mr. Tushar Mehta, Solicitor General of India; Written Submissions of Ms. Divya Roy,

Advocate

PART C

69. The sufficiency of the material which necessitated a decision under Article 3

lies beyond the realm of judicial review.

136

70. The petitioners did not challenge the dissolution of the Legislative Assembly

and the issuance of the Proclamation declaring an Emergency under Article

356. They only challenged the actions taken during the subsistence of the

Proclamation.

137

71. It is impermissible for this Court to read in limitations on the powers under

Article 356(1)(b).

138

72. The President has previously exercised powers under Article 370 even when

Governor’s rule or President’s rule was in force.

139

73. The term “modification” used in Article 370(1) cannot be interpreted in a

narrow manner. It gives the President the power to amend the Constitution in

its application to the State of Jammu and Kashmir. Therefore, the addition of

clause (4) to Article 367 by CO 272 is valid.

140

74. The continuity of constituent power having been exercised by the legislative

assembly of the State of Jammu and Kashmir by virtue of Section 147 of the

State Constitution, the legislative assembly is equally competent to provide

the requisite recommendation under Article 370(3).

141

136

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

137

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

138

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

139

Written Submissions of Mr. Tushar Mehta, Solicitor General of India

140

Written Submissions of Mr. Vikramjeet Banerjee, Additional Solicitor General of India

141

Written Submissions of Mr. Vikramjeet Banerjee, Additional Solicitor General of India

PART C

75. The erstwhile States ceased to be independent with the advent of the

Constitution. In fact, every vestige of their sovereignty was abandoned with

the execution of the Instruments of Accession and the States stood fully

assimilated and integrated with the Dominion of India.

142

76. Article 370(3) contains a non-obstante clause, overriding Article 370(1) and

(2), providing for the cessation of Article 370 itself when the conditions are

right.

143

77. Article 35-A, introduced through CO 48 of 1954, seeks to provide special

rights to permanent residents of Jammu and Kashmir. It affects several

fundamental rights, impacting the basic structure of the Constitution.

However, it goes beyond the scope of "exceptions and modifications" under

Article 370(1)(d).

144

78. The constitutional scheme under Section 6 of the Constitution of J & K is in

flagrant violation of the constitutional scheme under Articles 14 and 15(1) of

the Constitution of India.

145

79. The non-obstante clause under Article 370 must give way to the non- obstante

clause of Article 368 of the Constitution.

146

142

Written Submissions of Mr. Rakesh Dwivedi, Senior Advocate

143

Written Submissions of Mr. Rakesh Dwivedi, Senior Advocate

144

Written Submissions of Mr. Rakesh Dwivedi, Senior Advocate

145

Written Submissions of Ravindra Raizada, Senior Advocate with Divya Roy, Advocate

146

Written Submissions of Ravindra Raizada, Senior Advocate with Divya Roy, Advocate

PART C

80. The provisions of the Jammu and Kashmir Constitution create a number of

problems, particularly in regard to the right to hold property, right to

citizenship, and right to settlement.

147

81. The actions of the Union of India are in conformity with the intention of the

framers of the Constitution and the understanding of Article 370 as expressed

by the representatives from the State of Jammu and Kashmir.

148

82. The views of the Legislative Assembly of the State are required to be obtained

only when a new State is formulated and not in case of formation of new Union

Territories.

149

83. All the powers of the Constituent Assembly of the State of Jammu and

Kashmir were being exercised by legislature of State. Therefore, by

necessary implication, the word ‘Constituent Assembly’ in Article 370(3)

should have been construed as ‘Legislative Assembly.’ This interpretation

was given statutory form by virtue of CO 272.

150

84. Article 370 is not a part of the basic structure of the Constitution of India.

151

85. Article 35A is in violation of fundamental rights of the citizens of other parts of

the country.

152

147

Written Submissions of Mr. Bimal Roy Jad, Senior Advocate

148

Written Submissions of Mr. Aniruddha Rajput, Advocate

149

Written Submissions of Mr. Apoorv Shukla, Advocate

150

Written Submissions of Ms. Archana Pathak Dave, Advocate

151

Written Submissions of Mr. Rahul Tanwani, Advocate

152

Written Submissions of Ms. Madhusmita Bora

PART D

D. Issues

86. The reference before the Constitution Bench raises the following questions

for determination:

a. Whether the provisions of Article 370 were temporary in nature or

whether they acquired a status of permanence in the Constitution;

b. Whether the amendment to Article 367 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” is constitutionally valid;

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) is 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 are constitutionally valid;

PART D

f. Whether the Proclamation which was issued by the President under

Article 356 of the Constitution on 19 December 2018 and the subsequent

extensions are 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)

is constitutionally valid bearing in mind:

i. The first proviso to Article 3 which requires that a Bill affecting

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.

PART E

E. Analysis

i. The State of Jammu and Kashmir did not possess sovereignty

87. Some petitioners urged that the State of Jammu and Kashmir retained an

element of sovereignty when it joined the Indian Union. They argued that the

IoA ceded ‘external sovereignty’ to the Union of India by ceding control over

the subjects of defence, foreign affairs, and telecommunication but the State

retained ‘internal sovereignty’ because of:

a. The history of the relationship between Jammu and Kashmir and India;

b. The formation of the Constituent Assembly of Jammu and Kashmir;

c. The adoption of the Constitution of Jammu and Kashmir; and

d. The power to enact laws on all subjects except defence, foreign affairs,

and telecommunication.

They urged that Article 370 subsumed the sovereignty retained by the State.

In response, the Union of India advanced the argument that any sovereignty

which vested with the State was ceded with the signing of the IoA. The Union

argued that the constitutional scheme (of both the Indian Constitution and the

Constitution of Jammu and Kashmir) does not indicate that any element of

sovereignty was retained by the State. The question of whether the State

retained any element of sovereignty is a primary issue which will bear upon

the other issues before this Court.

PART E

a. The meaning of sovereignty

88. Sovereignty has different connotations in political theory, law and philosophy.

Even within these fields, there is no definitive meaning about its content.

European philosophers, from Hobbes to Locke to Rousseau deliberated upon

sovereignty, and its meaning has evolved over centuries. While it was initially

considered as residing within a person (generally, the monarch), it is now

thought to rest within a body or group.

89. Despite the absence of agreement on its precise content, there is broad

agreement that legal sovereignty exists when a body has unlimited or

unrestricted legislative power or authority and when none other is superior to

it.

153

This indicates that a sovereign authority has the supreme power to make

laws and is not subordinate to another entity. In Law of the Constitution, Dicey

stated:

“It should, however, be carefully noted that the term ‘sovereignty,’

as long as it is accurately employed in the sense in which Austin

sometimes uses it, is a merely legal conception, and means simply

the power of law-making unrestricted by any legal limit”

154

The emphasis on the unlimited nature of the power available to a body has

diminished with the development of international law and other modern limits

on the exercise of power.

155

While the expression ‘sovereignty’ was previously

understood to mean that the sovereign could enact any type or form of law in

exercise of sovereign power, modern legal systems limit the nature of the laws

153

See, for instance, Dicey, Law of the Constitution (8

ed. 1915); Austin, Jurisprudence (4

ed. 1873); John

Dickinson, A Working Theory Of Sovereignty I, Political Science Quarterly, Volume 42, Issue 4, December 1927,

Pages 524–548;

154

Dicey, Law of the Constitution (8

ed. 1915) at 70

155

Union of India v. Sukumar Sengupta, 1990 Supp SCC 545

PART E

that can be enacted by constitutional or other interdicts. Hence, the aspect of

sovereignty which requires no subordination to another body is of greater

significance as compared to the traditional aspect that requires power to be

unlimited.

90. The meaning of sovereignty elucidated in the preceding paragraph is

descriptive not of external sovereignty but internal sovereignty. The former is

commonly understand to mean the independence of a nation in relation to

other nations whereas the latter is the relationship of the “sovereign within the

state to the individuals and associations within the state.”

156

External and

internal sovereignty are not entirely distinct concepts but are different facets.

They have gradually come to be regarded as two sides of the same coin.

157

Dicey’s comment (extracted above) is evidently with reference to internal

sovereignty because the unrestricted power to make laws concerns

individuals and associations within a state, as opposed to the relationship

between two nations.

91. Orfield undertook a study of the literature on the subject of sovereignty. The

study listed five leading characteristics of internal sovereignty:

a. It exists as a matter of fact or as a matter of fact and law. Though the

law of a state need not necessarily recognize, it may recognize the

sovereign;

156

Lester B Orfield, The Amending of the Federal Constitution (2012)

157

Max Planck Encyclopedia of Public International Law, ‘Sovereignty’ Oxford Public International Law

<https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1472>

PART E

b. Sovereign power is absolute in that a law may be passed on any subject;

c. It is indivisible;

d. The law passed by the sovereign need not be enforced in particular

cases; and

e. The legal sovereign is determinate. It may be a single person or a group

of persons.

92. In India, sovereignty vests in the people of India.

158

The Preamble to the

Constitution of India states that “We, the people … hereby adopt, enact and

give to ourselves this Constitution.” The Constitution was not adopted by an

external authority such as a colonial power or its monarch. The Constitution

does not owe its existence to an internal authority such as the rulers of the

Princely States.

93. The voice of the people echoed in the Constituent Assembly though it was

not formed by an election based on adult suffrage. On 16 May 1946, the

Cabinet Mission Plan stated that though the “most satisfactory method” of

constituting the Constituent Assembly would be through adult suffrage, it

would lead to a “wholly unacceptable delay”. Thus, the Plan stipulated that

the most “practicable course” is to “utilize the recently elected Provincial

Legislative Assemblies as the electing bodies.” The Cabinet Mission

proposed the following plan for the constitution of the Assembly:

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PART E

a. To allot to each Province a total number of seats proportional to its

population, roughly in the ratio of one to a million, as the nearest

substitute for representation by adult suffrage;

b. To divide its provincial allocation of seats between the main communities

in each Province in proportion to their population; and

c. To provide that the representatives allotted to each community in a

Province shall be elected by the members of that community in its

Legislative Assembly.

Muslims, Sikhs, and ‘General’ (all persons who were not Muslims or Sikhs)

were recognised as the three main communities. However, since the interests

of smaller minorities would not be adequately represented through this

method, it was proposed that the Advisory Committee on the rights of citizens,

minorities, and tribal and excluded groups should “contain full representation

of the interests affected, and their function will be to report to the Union

Constituent Assembly upon the list of Fundamental Rights, the clauses for the

protection of minorities, and a scheme for the administration of the tribal and

excluded areas, and to advise whether these rights should be incorporated in

the Provincial, Group or Union Constitution."

94. Even after the Constituent Assembly was elected, the general public were

engaged in the process of the drafting of the Constitution. In February 1948,

the Draft Constitution of India 1948 prepared by the Drafting Committee was

published and widely disseminated. Copies of the Draft Constitution were sold

PART E

for one rupee, inviting comments from a wide range of civic bodies including

the public.

159

Thus, the people of India – as a whole – exercised their

sovereign political power to adopt, enact, and give to themselves the

Constitution through the Constituent Assembly. Consequent on the adoption

of the Constitution, the people exercise the power of sovereignty through their

elected representatives.

160

95. The question which is being considered by this Court when it adjudicates

whether Jammu and Kashmir retained sovereignty is two-fold: first, did the

State of Jammu and Kashmir retain sovereignty as distinct from its people? If

not, is the exercise of sovereign power by the people of Jammu and Kashmir

different from the exercise of sovereign power by the citizens of India who

reside in different states? The answer to these and related issues will have

be understood in the context of historical events which have shaped our past

and continue to have an impact on the present.

b. The history of the Union of India and Jammu and Kashmir

96. In 1834, Zorawar Singh, the General commanding the army of Gulab Singh,

the Maharaja of Jammu invaded Ladakh. Ladakh came under Dogra rule and

was incorporated into the State of Jammu and Kashmir in 1846. In the course

of the Sino-Sikh War in 1841-42, the Qing empire invaded Ladakh but the

Sino Tibetan army was defeated. On 9 March 1846, the Treaty of Lahore was

executed between the Maharaja of Lahore and the British Government,

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State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501

PART E

resulting in the transfer of certain territories to the East India Company. At

Partition in 1947, Ladakh was a part of Jammu and Kashmir and was

administered from Srinagar.

97. Following the Treaty of Lahore, the British Government executed the Treaty

of Amritsar on 16 March 1846 in terms of which the hilly mountainous country

with its dependencies situated to the east of the river Indus and west of the

Ravi, including Chamba, and excluding Lahaul were transferred by the British

Government to Maharaja Gulab Singh of Jammu. Maharaja Gulab Singh died

on 30 June 1857 and was succeeded by his son Maharaja Ranbir Singh.

Initially, the State was ruled as a monarchy and as a consequence,

sovereignty vested in the monarch.

98. Following the passage of the Government of India Act 1858 on 2 August 1858,

territories formally in the possession or under the control of the East India

Company were vested in the British Monarch in whose name India was to be

governed. Maharaja Ranbir Singh died in 1885 and was succeeded by

Maharaja Pratap Singh.

99. On 30 August 1889, the British Parliament enacted the Interpretation Act

1889. Section 18(4) defined the expression British India to comprise of :

“all territories and places withing Her Majesty’s dominions which are

for the time being governed by Her Majesty through the Governor-

General of India…”

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100. The term “India” was defined in Section 18(5) as comprising of :

“British India together with any territories of native prince or chief

under the suzerainty of Her Majesty exercised through the

Governor-General of India…”

The suzerainty of the colonising British over the territory of Jammu and

Kashmir was such that external sovereignty rested with the Crown.

101. Maharaja Pratap Singh was succeeded in 1925 by Maharaja Hari Singh, the

last Ruler of the Princely State of Jammu and Kashmir. On 20 April 1927, the

expression “State Subject” was defined in a notification issued by Maharaja

in terms of which ‘State Subjects’ were classified into four categories which

were subsequently to become the basis of the definition of the expression

“Permanent Residents” of Jammu and Kashmir under Article 35A of the

Constitution of India as it applied to the State of Jammu and Kashmir.

102. Maharaja Hari Singh enacted Regulation No 1 of Samvat 1991 on 22 April

1934 which established a Legislative Assembly called the ‘Praja Sabha’ for

the State of Jammu and Kashmir. While delegating certain legislative

functions to the Praja Sabha, Maharaja Hari Singh retained supremacy over

all legislative, executive and judicial matters. This was indicative of internal

sovereignty, in terms of its meaning discussed in the preceding section.

103. By the Government of India Act, 1935 which was enacted by the British

Parliament on 2 August 1935, India was established as a federation

comprising of the Governors’ Provinces, Chief Commissioners’ Provinces and

the Indian States which had or would accede to the Federation of India. Part

II was titled the ‘Federation of India’ and Chapter I of the Part provided for

PART E

‘Establishment of Federation and Accession of Indian States’. Section 5

provided for the Proclamation of the Federation of India.

161

Section 6 enabled

the Ruler of an Indian/Princely State to execute an IoA declaring that he

acceded to the Federation of India subject to the terms of the Instrument. The

State of Jammu and Kashmir was not a part of British India. Hence, the

provisions of the Government of India Act 1935 would apply to it only upon

the execution of an IoA by the Maharaja in accordance with Section 6.

104. The Jammu and Kashmir Constitution Act 1939 was promulgated on 7

September 1939. While Maharaja Hari Singh retained sovereignty and

supremacy over all legislative, executive and judicial functions, Section 23 of

the Act empowered the Praja Sabha to make laws for the entire State of

Jammu and Kashmir or any part of it subject to the conditions specified in

Section 24. The Act vested executive functions with a Council consisting of a

Prime Minister and other Ministers appointed by the ruler. The Act provided

for the High Court (which had been established in 1928) to be a Court of

Record with jurisdiction over civil suits and civil, criminal and revenue appeals.

105. In May 1946, the British Cabinet Mission issued a Memorandum titled ‘State’s

Treaties and Paramountcy’ which affirmed that upon the establishment of an

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Section 5 – Proclamation of Federation of India

(1) It shall be lawful for His Majesty, if an address in that behalf has been presented to him by each House of

Parliament and if the condition hereinafter mentioned is satisfied, to declare by Proclamation that as from

the day therein appointed there - shall be united in a Federation under the Crown, by the name of the

Federation of India-

(a) the Provinces hereinafter called Governors' Provinces ; and

(b) the Indian States which have acceded or may thereafter accede to the Federation; and in the Federation

so established there shall be included the Provinces hereinafter called Chief Commissioners' Provinces.

(2) The condition referred to is that States-

(a) the Rulers whereof will, in accordance with the provisions contained in Part II of the First Schedule to this

Act, be entitled to choose not less than fifty-two members of the Council of State; and

(b) the aggregate population whereof, as ascertained in accordance with the said provisions, amounts to at

least one-half of the total population of the States as so ascertained, have acceded to the Federation.

PART E

independent government in India, the paramountcy of the British monarch

over Indian States would lapse and paramount power over their respective

territories would return to the respective Princely States. It envisaged that the

States could enter into a federal relationship with the successor government.

On 16 May 1946, a Statement was issued by the Cabinet Mission. According

to paragraphs 15(1) and 15(4) of the Statement, the Cabinet Mission Plan

recommended a Union of India where the Union would have control over

defence, foreign affairs and communications while the States would retain

jurisdiction over all other subjects which were not ceded to the Union.

106. Meanwhile, the Constituent Assembly was elected and came together to

deliberate upon the form of governance for the country and frame a

Constitution for it. The Constituent Assembly comprised of a broad-based

representation from across the country in which the representatives of the

Princely States continued to join. In terms of the Cabinet Mission Plan, the

Constituent Assembly of India met for its first session on 9 December 1946.

107. On 22 January 1947, the Constituent Assembly unanimously adopted the

Objectives Resolution which declared the “firm and solemn resolve to

proclaim India as an Independent Sovereign Republic.” Paragraphs 2, 3, 4

and 7 declared that:

“(2) WHEREIN the territories that now comprise British India, the

territories that now form the Indian States, and such other parts of

India as are outside British India and the States, as well as such

other territories as are willing to be constituted into the

Independent Sovereign India, shall be a Union of them all; and

(3) WHEREIN the said territories whether with their present

boundaries or with such others as may be determined by the

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Constituent Assembly and thereafter according to the law of the

Constitution, shall possess and retain the status of autonomous

units, together with residuary powers, and exercise all powers and

functions of government and administration, save and except such

powers and functions as are vested in or assigned to the Union or

as are inherent or implied in the Union or resulting therefrom; and

(4) WHEREIN all power and authority of the Sovereign

Independent India, its constituent parts and organs of

government, are derived from the people; and

…

(7) WHEREIN there shall be maintained the integrity of the territory

of the Republic and its sovereign rights on land, sea, and air

according to justice and the law of civilized nations;

…”

(emphasis supplied)

108. The Objectives Resolution is significant to the discussion of whether Jammu

and Kashmir retained an element of sovereignty because it reflects the

understanding of the framers of the Constitution as to the consequences of

acceding to India. Undoubtedly, the rulers of the Princely States, had a

contemporaneous and parallel understanding of the consequences of

accession – the loss of sovereignty. Indeed, this was one of the factors (if not

the main factor) which caused some of the Princely States (such as

Hyderabad) to hesitate in acceding to India. The following portions of the

Objectives Resolution are of particular significance:

a. Paragraph 2 indicated that the territories which acceded would be

acceding to the sovereign country of India;

PART E

b. Paragraph 3 indicated that the acceding territories would retain some

level of autonomy (which is different from sovereignty);

c. Paragraph 4 indicated that the sovereignty of India was derived from its

people as a whole. This included the people of the acceding territories;

and

d. Paragraph 7 reinforced that the centrality of sovereignty vests with the

people of the country as a whole.

109. On 20 February 1947, Clement Attlee, the Prime Minister of United Kingdom

announced that:

a. The British Government would grant full self-government to British India

by 30 June 1948; and

b. The future of the Princely States would be decided after the date of final

transfer was determined.

110. On 3 June 1947, representatives of the Indian National Congress, the Muslim

League and the Sikh Community came to an agreement with Lord

Mountbatten, the agreement being known as the ‘Mountbatten Plan’. The

Mountbatten Plan inter alia envisaged:

a. The partition of British India;

b. Grant of Dominion status to successor governments;

c. Autonomy and sovereignty to India and Pakistan;

d. Adoption of Constitutions by both the nations; and

PART E

e. An option to Princely States to either join India or Pakistan.

111. On 13 June 1947, a meeting was convened by Lord Mountbatten with

Jawaharlal Nehru, Sardar Patel, Acharya Kripalani, Muhammad Ali Jinnah,

Liaquat Ali Khan, Sardar Abdul Nishtar and Sardar Baldev Singh, at which the

creation of a States’ Department was envisaged. It was envisaged that:

“That it would be advantageous if the Government of India were to

set up a new Department, possibly called the "States Department",

to deal with matter of common concern with the States; that, if this

were done, the new Department should be divided into two sections,

ready for the partition of the country and that the existing Political

Department and the Political Adviser should give all possible

assistance and advice in the formation of this new Department"

112. On 15 June 1947, the Congress Working Committee on States repudiated the

British perspective that the lapse of paramountcy would result in the creation

of independent states. It stated that :

“The committee does not agree with the theory of paramountcy as

enunciated and interpreted by the British Government; but even if

that is accepted, the consequences that flow from the lapse of

paramountcy are limited in extent. The privileges and obligations as

well as the subsisting rights as between the States and the

Government of India cannot be adversely affected by the lapse of

paramountcy. These rights and obligations have to be considered

separately and renewed or changed by mutual agreement. The

relationship between the Government of India and the States would

not be exhausted by lapse of Paramountcy. The lapse does not lead

to the independence of the States.”

The British Government and Indian bodies evidently disagreed on whether

paramountcy would lapse.

113. On 25 June 1947, the Interim Cabinet of India issued a press communique

on 27 June 1947 for the setting up of a States’ Department chaired by Sardar

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Vallabhai Patel to deal with matters arising between the central Government

and Indian states. The communique stated that :

"In order that the successor Government will each have an

organisation to conduct its relations with the Indian States when the

Political Department is wound up, His Excellency the Viceroy, in

consultation with the Cabinet, has decided to create a new

Department called the States Department to deal with matters

arising between the Central Government and the Indian States. This

Department will be in charge of Sardar Patel, who will work in

consultation with Sardar Abdur Rab Nishtar. The new Department

will be organised in such a way and its work so distributed that at

the appropriate time it can be divided up between the two successor

Governments without any dislocation.”

114. On 3 July 1947, Sardar Patel wrote to Maharaja Hari Singh stating that “the

interests of Kashmir lie in joining the Indian Union and its Constituent

Assembly without any delay” and that “its past history and tradition demand

it, and India looks up to you and expects you to take this decision”.

115. The States Department was a part of the Ministry of Home Affairs headed by

Sardar Patel. On 5 July 1947, Sardar Patel issued the following statement:

“I have a few words to say to the rulers of Indian States among

whom I am happy to count many as my personal friends. It is the

lesson of history that it was owing to her political fragmented

condition and our inability to make a united stand that India

succumbed to successive waves of invaders. Our mutual conflicts,

and internecine quarrels and jealousies have in the past been the

cause of our downfall and our falling victims to foreign domination a

number of times. We cannot afford to fall into those errors or traps

again. We are on the threshold of independence.

…

But there can be no question that despite this separation a

fundamental homogeneous culture and sentiment reinforced by the

compulsive logic of mutual interests would continue to govern us.

Much more would this be the case with that vast majority of States

which owing to their geographical contiguity and indissoluble ties,

economic, cultural and political, must continue to maintain relations

PART E

of mutual friendship and co-operation with the rest of India. The

safety and preservation of these States as well as of India demand

unity and mutual co-operation between its different parts.

…

I do not think it can be their desire to utilise this freedom from

domination in a manner which is injurious to the common interests

of India or which militates against the ultimate paramountcy of

popular interests and welfare or which might result in the

abandonment of that mutually useful relationship that has developed

between British India and Indian States during the last century. This

has been amply demonstrated by the fact that a great majority of

Indian States have already come into the Constituent Assembly. To

those who have not done so, I appeal that they should join now. The

States have already accepted the basic principle that for Defence,

Foreign Affairs and Communications they would come into the

Indian Union. We expect (sic) more of them than accession on these

three subjects in which the common interests of the country are

involved.

…

Nor would it be my policy to conduct the relations of the new

Department with the States in any manner which savours of the

domination of one over the other; if there would be any domination,

it would be that of our mutual interests and welfare.

…

Let not the future generations curse us for having had the

opportunity but failed to turn it to our mutual advantage. Instead, let

it be our proud privilege to leave a legacy of mutually beneficial

relationships which would raise this Sacred Land to its proper place

amongst the nations of the world and turn it into an abode of peace

and prosperity.”

116. On 10 July 1947, during the second reading of the Indian Independence Bill,

Prime Minister Attlee made the following statement:

“A feature running through all our relations with the states has been

that the Crown has conducted their foreign relations. They have

received no international recognition independent of India as a

whole. With the ending of the treaties and agreements, the states

regain their independence. But they are part of geographical

India, and their rulers and peoples are imbued with a patriotism

PART E

no less great than that of their fellow Indians in British India. It

would, I think, be unfortunate if, owing to the formal severance

of their paramountcy relations with the Crown, they were to

become islands cut off from the rest of India. The termination

of their existing relationship with the Crown need have no such

consequence.

…

It is the hope of His Majesty’s Government that all states will, in due

course, and their appropriate place within one or other of the new

dominions within the British Commonwealth, but until the

constitutions of the Dominions have been framed in such a way as

to include the states as willing partners, there must necessarily be a

less organic form of relationship between them, and there must be

a period before a comprehensive system can be worked out.”

(emphasis supplied)

Even within the British Government, there was uncertainty as to the precise

practical effects of the lapse of paramountcy.

117. On 18 July 1947, the British Parliament enacted the Indian Independence Act

1947. In terms of Section 1(1), two independent Dominions – India and

Pakistan - were to be established from 15 August 1947. Section 7(1)(b)

stipulated that following independence, the sovereignty of the British monarch

over Indian States would lapse and return to the rulers of those States.

Consequently, as sovereign States, 562 Princely States had the choice to

remain independent or to accede to either of the two Dominions established

by this Act. Section 8 enunciated that as a transitional measure, the provisions

of the Government of India Act 1935 would continue to apply to the two

Dominions subject to conditions. In pursuance of the provisions of Section 9,

the Governor-General of India issued the India (Provisional Constitution)

Order 1947 which made certain provisions of the Government of India Act

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1935 applicable to India until other provisions were made applicable by the

Constituent Assembly. Section 6 dealt with the accession of Princely States

to India through the execution of an IoA. Section 6 provided as follows:

“Section 6. Accession of Indian States:-

(1) An Indian State shall be deemed to have acceded to the

Dominion if the Governor-General has signified his acceptance of

an Instrument of Accession executed by the Ruler thereof whereby

the Ruler on behalf of the State:-

(a) declares that he accedes to the Dominion with the intent that the

Governor-General, the Dominion Legislature, the Federal Court and

any other Dominion authority established for the purposes of the

Dominion shall, by virtue of his Instrument of Accession, but subject

always to the terms thereof, and for the purposes only of the

Dominion, exercise in relation to the State such functions as may be

vested in them by order under this Act; and

(b) assumes the obligation of ensuring that the effect is given within

the State to the provisions of this Act so far as they are applicable

therein by virtue of the Instrument of Accession.

(2) An Instrument of Accession shall specify the matters which the

Ruler accepts as matters with respect to which the Dominion

Legislature may make laws for the State, and the limitations, if any,

to which the power of the Dominion Legislature to make laws for the

State, and the exercise of the executive authority of the Dominion in

the State, are respectively to be subject.

(3) A Ruler may, by a supplementary Instrument executed by him

and accepted by the Governor-General vary the Instrument of

Accession of his State by extending the functions which by virtue of

that Instrument are exercisable by any Dominion authority in relation

to his State.”

A Draft Common IoA and Standstill Agreements were drawn up by the

Department of States.

118. India obtained independence on 15 August 1947. Partition resulted in the

establishment of the two Dominions of India and Pakistan. British

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paramountcy lapsed. Those of the Princely States which had not executed an

IoA with either Dominion became independent States. These were Junagarh,

Hyderabad and Jammu and Kashmir. Once again, the sovereignty of Jammu

and Kashmir rested in the ruler, Maharaja Hari Singh.

119. The Government of Jammu and Kashmir signed a Standstill Agreement with

Pakistan. On 27 September 1947, Nehru addressed a letter to Sardar Patel

underlining that “the Pakistani strategy is to infiltrate Kashmir now and to take

some big action as soon as Kashmir is more or less isolated because of

coming winter.”

120. Shortly thereafter, on 26 October 1947, Maharaja Hari Singh addressed a

communication to Lord Mountbatten requesting the immediate assistance of

his government. The letter noted that the Maharaja wanted time to decide to

which Dominion he should accede or whether it would be in the best interest

of both the Dominions as well as Jammu and Kashmir for the State to “stand

independent.” The Maharaja noted the grave danger to Jammu and Kashmir

from Pakistan in spite of the Standstill Agreement.

121. Adverting to the conditions in the State and the “great emergency of the

situation as it exists,” the Maharaja stated that he had no option but to ask for

help from the Indian Dominion, accepting at the same time that India could

not send the help asked for by him without Jammu and Kashmir acceding to

the Dominion of India. The Maharaja decided to accede to the Union of India.

The offer of accession noted that if the State of Jammu and Kashmir “has to

be saved immediate assistance must be available at Srinagar.”

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122. Maharaja Hari Singh signed the IoA on 26 October 1947. The Maharaja stated

that he was doing so in terms of the provisions of the Government of India Act

1935 enabling any Indian State to accede to the Dominion of India by the

execution of an IoA by the Ruler. The Maharaja acceded to the Dominion of

India “in the exercise of my sovereignty in and over my said State.” As a

consequence, the independence attained by the State when British

paramountcy lapsed was ceded to the Union of India. The IoA contains the

following declaration in paragraph 1:

“I hereby declare that I accede to the Dominion of India with the

intent that the Governor General of India, the Dominion Legislature,

the Federal Court and any other Dominion authority established for

the purposes of the Dominion shall by virtue of this my Instrument

of Accession but subject always to the terms thereof, and for the

purposes only of the Dominion, exercise in relation to the State of

Jammu & Kashmir … such functions as may be vested in them by

or under the Government of India Act, 1935, as in force in the

Dominion of India, on the 15th day of August 1947…”

123. In terms of Paragraph 3, the Maharaja accepted matters specified in the

Schedule “as the matters with respect to which the Dominion Legislature may

make laws for the State.” Paragraph 5 stipulated that the terms of the IoA

shall not be varied by any amendment “of the Government of India Act 1935

or the Indian Independence Act 1947 unless such an amendment is accepted

by the Maharaja by an Instrument supplementary to the Instrument.”

Paragraph 7 provided that:

“7. Nothing in this Instrument shall be deemed to commit in any way

to acceptance of any future constitution of India or to fetter my

discretion to enter into agreement with the Government of India

under any such future constitution.”

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124. Paragraph 8 provided that nothing in the IoA would affect the continuance of

the sovereignty of the Maharaja in and over the State, the exercise of any

powers, authority and rights enjoyed by him as Ruler save as otherwise

provided by the Instrument and the validity of any law which was in force.

125. The IoA was accepted by the Governor-General on 27 October 1947. The

Governor-General stated that in response to the Maharaja’s appeal for

military aid, action has been taken to send the troops of the Indian Army to

Kashmir “to help your own forces to defend your territory and to protect the

lives, property and honour of your people.”

126. On 5 March 1948, Maharaja Hari Singh issued a Proclamation establishing

an Interim Government for the State of Jammu and Kashmir pending the

framing of a Constitution for the State.

127. Before the Constitution of India came into force, the process of integrating

Princely States with the Dominion of India was progressively being achieved.

Many Princely States executed IoA and Standstill Agreements.

128. The White Paper on States (1951) contains an illuminating discussion on

territorial integration:

“224. One of the important consequences of the adoption of the new

Constitution is the completion of the process of the territorial

integration of States. The States geographically contiguous to the

Dominion of India, as they existed before the Constitution of India

became operative, could be divided into two main categories:

(i) the acceding States, and

(ii) the non-acceding States.

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There were only two non-acceding States, namely, Hyderabad and

Junagadh. The acceding States could be sub-divided into the

following groups:-

(a) States which were not affected by the process of integration and

continued as separate units. i.e. Mysore and Jammu and Kashmir;

(b) Unions of States;

(d) Provincially-merged States; and

(e) Khasi Hill States Federation.

Under the new Constitution, all the constituent units, both Provinces

and States-the latter term includes non-acceding States-have been

classified into three classes, viz:

(1) Part A States which correspond to the former Governors'

Provinces,

(2) Part B States which comprise the Unions of States and the

States of Hyderabad, Mysore and Jammu and Kashmir and

(3) Part C States which correspond to the former Chief

Commissioners' Provinces.

The new Constitution effects the territorial integration of States by

means of a of a two-fold process. Firstly, Article 1 of the Constitution

defines the territories of India to include the territories of all the

States specified in the First Schedule, including Part B States. This

is an important departure from the scheme embodied in the Act of

1935 in that, while section 311(1) of that Act defined India to include

British India together with all territories of Indian Rulers, the Act did

not define the territories of the Indian Federation. Secondly, with the

inauguration of the new Constitution, the merged States have lost

all vestiges of existence as separate entities. This will be clear from

the position set out in the paragraphs which follow.”

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129. As regards the State of Jammu and Kashmir, Para 221 of the White Paper

provides:

“Special provisions regarding the State of Jammu and Kashmir

221. The State of Jammu and Kashmir acceded to India on October

26, 1947. The form of the Instrument of Accession executed by the

Rule of the State is the same as that of the other Instruments

executed by the Rulers of other acceding States. Legally and

constitutionally therefore the position of this State is the same

as that of the other acceding States. The Government of India,

no doubt, stand committed to the position that the accession

of this State is subject to confirmation by the people of the

State. This, however, does not, detract from the legal fact of

accession. The State has therefore been included in Part B States.”

(emphasis supplied)

130. The White Paper notes Jammu and Kashmir was incorporated as a Part B

State. Moreover, with the inauguration of the Constitution, all the merged

entities “have lost all vestiges of existence as separate entities”. The White

Paper noted that in view of the special problems which were arising in the

State of Jammu and Kashmir and bearing in mind the assurance of the

Government of India that its people would themselves finally determine their

political future, the provisions of Article 370 were introduced. However, the

legal fact of accession had resulted in the transfer of sovereignty from the

Maharaja to India. The White Paper states:

“The effect of this provision is that the State of Jammu and Kashmir,

continues to be a part of India. It is a unit of the Indian Union and

the Union Parliament will have jurisdiction to make laws for this State

on matters specified either in the Instrument of Accession or by after

additions with the concurrence of the Government of the State. An

order has been issued under Article 370 specifying (1) the matters

in respect of which the Parliament may make laws for the Jammu

and Kashmir State and (2) the provisions, other than Article 1 and

Article 370, which shall apply to that State (Appendix LVl). Steps will

be taken for the purpose of convening a Constituent Assembly

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which will go into these matters in detail and when it comes to a

decision on them, it will make a recommendation to the President

who will either abrogate Article 370 or direct that it shall apply with

such modifications and exceptions as he may specify.”

131. In June 1949, Maharaja Hari Singh issued a Proclamation delegating his

power and authority to Yuvraj Karan Singh who would function as the ruler of

the State. Following his appointment as the ruler, Yuvraj Karan Singh

nominated four representatives from Jammu and Kashmir to the Constituent

Assembly of India. On 16 June 1949, Sheikh Abdullah joined the Constituent

Assembly together with three other representatives from the State of Kashmir

namely Mirza Mohammed Afzal Baig, Maulana Mohammed Sayeed Masoodi

and Moti Ram Bagda.

132. At this time, several Princely States entered into covenants to form single

units. The Princely States of Bhavnagar, Porbandar, Junagadh and others

formed the United State of Saurashtra. Gwalior, Indore and eighteen other

Princely States formed the United State of Gwalior, Indore and Malwa

(Madhya Bharat). Similar covenants led to the formation of the Patiala and

East Punjab States Union (PEPSU), the United State of Rajasthan and the

United State of Travancore and Cochin.

133. In July 1949, a note prepared by the Ministry of States regarding the Indian

States specifically noted that Jammu and Kashmir would be treated as a part

of Indian Territory:

“The Government of India have considered the matter in its various

aspects and are of the opinion that in view of the present peculiar

situation in respect of Jammu and Kashmir State it is desirable that

the accession of the State should be continued on the existing basis

till the State could be brought to the level of other States. A

PART E

special provision has therefore to be made in respect of this

State on the basis suggested above as a transitional

arrangement.”

(emphasis supplied)

This note expressly clarifies the position that the accession of Jammu and

Kashmir was to continue on the then-existing basis till the State could be

brought to the level of other States; the State would be treated as a part of

Indian Territory until Parliament made all the provisions of the Constitution

(which were applicable to the States specified in Part III of Schedule I to the

Constitution) applicable to Jammu and Kashmir. The power of Parliament to

make laws for the State would be limited to those matters specified in the IoA

reflecting the power of the Dominion of India to legislate. The special provision

for Jammu and Kashmir was not, therefore, indicative of the fact that it

retained an element of sovereignty. Rather, it was necessitated by the

conditions in the State at the time and was intended to continue until the State

could be brought on par with other States.

134. On 14 October 1949, Jammu and Kashmir was included among Part III States

under Article 1 with a territory comprising of the corresponding Indian States

immediately before the commencement of the Constitution. The Part III States

were:

“1. Hyderabad

2. Jammu and Kashmir

3. Madhya Bharat

4. Mysore

PART E

5. Patiala & East Punjab States Union

6. Rajasthan

7. Saurashtra

8. Travancore-Cochin

9. Vindhya Pradesh”

There were nine Part III States including Jammu and Kashmir.

135. On 15 October 1949, four seats were allocated in the Constituent Assembly

to Kashmir. The re-allocation of seats in the Constituent Assembly to various

States was necessitated because between December 1946 and November

1949:

a. Many of the smaller States merged with the provinces;

b. Many other States were united to form Unions of States; and

c. Some States came to be directly administered as Chief Commissioners’

Provinces.

136. These changes required a re-adjustment of the representation of the States.

The modalities which were followed were thus:

a. For States which were merged in Provinces, the Speaker of the

Legislative Assembly was authorised to hold elections and to notify the

persons elected or nominated to the Constituent Assembly;

b. Where the States were united to form a Union of States and for

Hyderabad, Mysore and Jammu and Kashmir, the Rajpramukh or Ruler

was entrusted with this function; and

PART E

c. In the case of States which were constituted into Chief Commissioners’

Provinces, the function was entrusted to the Chief Commissioner.

137. On 17 October 1949, four seats were allotted to the State of Jammu and

Kashmir, among other States, in the Council of States. The allocation of seats

of all states was as follows:

“REPRESENTATIVES OF STATES FOR THE TIME

BEING

SPECIFIED IN PART III OF THE FIRST SCHEDULE

States/ Total Seats

1 Hyderabad 11

2 Jammu & Kashmir 4

3 Madhya Bharat 6

4 Mysore 6

5 Patiala & East Punjab States Union 3

6 Rajasthan 9

7 Saurashtra 4

8 Travancore-Cochin 6

9 Vindhya Pradesh 4

Total: 53

TOTAL OF ALL SEATS. 205”

PART E

138. Draft Article 306A, which later became Article 370 on the adoption of the

Constitution, was debated in the Constituent Assembly on 17 October 1949.

Gopalaswami Ayyangar, while participating in the debate, furnished the

rationale for Article 370. Ayyangar’s speech has been read and re-read

numerous times in the course of submissions. Ayyangar stated that:

“Sir, this matter, the matter of this particular motion, relates to the

Jammu and Kashmir state. The house is fully aware of the fact that

that State has acceded to the Dominion of India. The history of this

accession is also well known. The accession took place on the 26

October, 1947. Since then, the State has had a chequered history.

Conditions are not yet normal in the state. The meaning of this

accession is that at present that state is a unit of a federal state

namely, the Dominion of India. This Dominion is getting transformed

into a Republic, which will be inaugurated on the 26th January,

1950. The Jammu and Kashmir State, therefore, has to become

a unit of the new Republic of India. As the House is aware,

accession to the Dominion always took place by means of an

instrument which had to be signed by the Ruler of the State and

which had to be accepted by the Governor-General of India.

That has taken place in this case as the House is also aware,

instruments of accession will be a thing of the past in the new

Constitution. The States have been integrated with the Federal

Republic in such a manner that they do not have to accede or

execute a document of accession for the purpose of becoming

units of the Republic, but they are mentioned in the

Constitution itself; and, in the case of practically all States other

than the State of Jammu and Kashmir, their constitutions also have

been embodied in the Constitution for the whole of India. All those

other states have agreed to integrate themselves in that way and

accept the constitution provided.”

(emphasis supplied)

139. On 25 November 1949, a Proclamation was issued for the State of Jammu

and Kashmir by Yuvraj Karan Singh. The Preamble to the Proclamation notes

that the Constituent Assembly which was drafting the Constitution of India

included representatives of the State of Jammu and Kashmir. The Preamble

states that:

PART E

“Whereas with the inauguration of the new Constitution for the whole

of India now being framed by the Constituent Assembly of India, the

Government of India Act, 1935 which now governs the constitutional

relationship between this State and the Dominion of India will stand

repealed;

And Whereas, in the best interests of this State, which is closely

linked with the rest of India by a community of interests in the

economic political and other fields, it is desirable that the

constitutional relationship established between this State and the

Dominion of India, should be continued as between this State and

the contemplated Union of India; and the Constitution of India as

drafted by the Constituent Assembly of India, which included duly

appointed representatives of this State, provides a suitable basis for

doing so;

…”

140. The Proclamation stated that the provisions of the Constitution shall govern

the constitutional relationship between the State and Union of India, and that

it shall supersede all other constitutional provisions which are inconsistent

with the provisions of the Constitution:

“I now hereby declare and direct-

That the Constitution of India shortly to be adopted by the

Constituent Assembly of India shall in so far as it is applicable to the

State of Jammu and Kashmir, govern the constitutional relationship

between this State and the contemplated Union of India and shall

be enforced in this State by me, my heirs and successors in

accordance with the tenor of its provisions

That the provisions of the said Constitution shall, as from the

date of its commencement, supersede and abrogate all other

constitutional provisions inconsistent therewith which are at

present in force in this State.”

(emphasis supplied)

PART E

141. The Proclamation by the ruler made it abundantly clear that:

a. The constitutional relationship between the State of Jammu and

Kashmir and the Union of India would be governed by the Constitution

of India upon its adoption by the Constituent Assembly;

b. The Constitution would be enforced in the State of Jammu and Kashmir

in accordance with its provisions; and

c. The Constitution would upon its commencement supersede and

abrogate all other constitutional provisions of the State which were

inconsistent with it.

The Proclamation is of particular significance in addressing the argument of

the petitioners that Jammu and Kashmir retained sovereignty because it did

not enter into an agreement of merger with the Union of India. The

declaration that the Constitution of India would not only supersede all other

constitutional provisions in the State which were inconsistent with it but also

abrogate them achieves what would have been attained by an agreement of

merger. We may recall that paragraph 7 of the IoA provided that nothing in

the Instrument shall be deemed to commit to acceptance of any future

constitution of India. The Proclamation accepted the Constitution of India in

no uncertain terms. Paragraph 7 of the IoA therefore ceased to have legal

import. The acceptance of the Constitution was not a conditional, temporary

or reversible act. Paragraph 8 of the IoA provided that nothing in it would

affect the continuance of the sovereignty of the Maharaja in and over the

State, the exercise of any powers, authority and rights enjoyed by him as

Ruler save as otherwise provided by the Instrument and the validity of any

PART E

law which was in force. With the issuance of the Proclamation, paragraph 8

ceased to be of legal consequence. The Proclamation reflects the full and

final surrender of sovereignty by Jammu and Kashmir, through its sovereign

ruler, to India – to her people who are sovereign.

142. The Constitution of India was adopted by the Constituent Assembly on 26

November 1949 and came into force on 26 January 1950, repealing the Indian

Independence Act 1947 and the Government of India Act 1935.

143. On 1 May 1951, a Proclamation was issued by Yuvraj Karan Singh directing

the establishment of an elected Constituent Assembly to draft a Constitution

for the State of Jammu and Kashmir. The Constituent Assembly of Jammu

and Kashmir was convened on 31 October 1951. In his statement before the

Constituent Assembly, Sheikh Abdullah adverted to the circumstances

leading up to the signing of the IoA by the Maharaja, categorically adverting

to the invasion from the side of Pakistan which would have otherwise led to

the occupation of the whole state by Pakistani troops and tribesmen:

“The overwhelming pressure of this invasion brought about a total

collapse of the armed force of the State as well as its administrative

machinery leaving the completely defenseless people at the mercy

of invaders. It was not an ordinary type of invasion, inasmuch as no

canons of warfare were observed. The tribesmen, who attacked the

State in thousands, killed, burned, looted and destroyed whatever

came their way and in this savagery no section of the people could

escape. Even the nuns and nurses of a Catholic Mission were either

killed, or brutally maltreated. As these raiders advanced towards

Srinagar, the last vestige of authority, which lay in the person of the

Maharaja, suddenly disappeared from the Capital. This created a

strange vacuum, and would have certainly led the occupation of the

whole state by Pakistani troops and tribesmen, if, at this supreme

hour of crises, the entire people of Kashmir has not risen like a solid

barrier against the aggressor. They halted his onrush, but could not

stop him entirely as the defenders, had not enough experience

training to fight back effectively. There is no doubt that some of them

PART E

rose to great heights of heroism during these fateful days. Who can

help being moved by the saga of crucified Sherwani, Abdul Aziz,

Brigadier Rajendra Singh, Prem Pal, Sardar Rangil Singh early

militia boys like Poshkar Nath Zadoo, Somnath Bira Ismail, among

scores of other named and unnamed heroes of the all communities.

But we, through rich in human material, lacked war equipment and

trained soldiers.

When the raiders were fast approaching Srinagar, we could think of

only one way to save the state from total annihilation-by asking for

help from a friendly neighbour. The representative of the National

Conference, therefore, flew to Delhi to seek help from the

Government of India. But the absence of any constitutionalities

between our State and India made it impossible for her to render us

any effective assistance in meeting the aggressor. As I said earlier,

India had refused to sign a Stand Still Agreement with the state on

the ground that she could not accept such a Agreement until it had

the approval of the people. But now, since the people’s

representatives themselves sought an alliance, the Government of

India showed readiness to accept it. Legally the instrument of

Accession had to be signed by the ruler of the state. This the

Maharaja did. While accepting that accession, the Government of

India said that she wished that “as soon as law and order have been

restored in the Kashmir and her soil cleared of the Invader, the

question of the state’s accession should be settled by reference of

the people.”

144. In the course of his address to the Constituent Assembly of Jammu and

Kashmir, Sheikh Abdullah highlighted the following reasons in support of

acceding to India:

a. The adoption of democracy, as a consequence of which “there is no

danger of a revival of feudalism and autocracy” if Jammu and Kashmir

were to accede to India;

b. In the previous four years, the Government of India had made no attempt

to interfere in the internal autonomy of Jammu and Kashmir;

c. The Indian Constitution provided for a secular democracy based on the

precepts of justice, freedom and equality;

PART E

d. The Indian Constitution had repudiated the concept of a religious state

by guaranteeing the equality of citizens irrespective of religion, colour,

caste and class;

e. The national movement in Jammu and Kashmir gravitated towards these

principles of secular democracy;

f. The economic advantages of aligning with India; and

g. The potential of achieving land reforms under the Indian Constitution.

145. Sheikh Abdullah noted that the most powerful argument in favour of acceding

to Pakistan was that the Pakistan was a Muslim state and a large majority of

the people in Jammu and Kashmir professed the religion. Repelling the

argument, Sheikh Abdullah observed:

“The most powerful argument which can be advanced in her favour

is that Pakistan is a Muslim State, and a big majority of our people

being Muslim the State must accede to Pakistan. This claim of being

a Muslim state is of course only a camouflage. It is a screen to dupe

the common man, so that he may not see clearly that Pakistan is a

feudal State in which a clique is trying by these methods to maintain

itself in power. In addition to this, the appeal to religion constitutes a

sentimental and a wrong approach to the question. Sentiment has

its own place in life, but often it leads to irrational action. Some

argue, supposedly natural corollary to this that our acceding to

Pakistan our annihilation or survival depends. Facts have disproved

this; right thinking man would point out that Pakistan is not an

organic unity of all the Muslims in this subcontinent. It has on the

contrary, caused dispersion of the Indian Muslims for whose benefit

it was claimed to have been created. There are two Pakistan at least

a thousand miles apart from each other. The total population of

western Pakistan which is contiguous to our State is hardly 25

million, while the total number of Muslims resident in India is as

many as 40 million. As one Muslim is as good as another, the

Kashmiri Muslim if they are worried by such considerations should

choose the 40 million living in India.”

PART E

146. On 10 June 1952, the Basic Principles Committee of the Jammu and Kashmir

Constituent Assembly submitted its interim report recommending that:

a. The form of the future Constitution of Jammu and Kashmir would be

wholly democratic;

b. Hereditary rulership shall be terminated and;

c. The Head of State shall be elected.

147. In 1952, the Delhi Agreement was entered into between the Government of

India and the Government of Jammu and Kashmir. In terms of the Agreement,

the Union Government agreed that while residuary powers of the Legislature

vested in Parliament in respect of other States, in the case of Jammu and

Kashmir, the residuary powers vested in the State itself because of the

consistent stand taken by the Jammu and Kashmir Constitution that

“sovereignty in all matters other than those specified in the IoA reside in the

State”:

“in view of the uniform and consistent stand taken up by the Jammu

and Kashmir Constituent Assembly that sovereignty in all matters

other than those specified in the Instrument of Accession continues

to reside in the State, the Government of India agreed that, while

the residuary powers of legislature vested in the Centre in respect

of all states other than Jammu and Kashmir, in the case of the latter

they vested in the State itself”

148. In the meantime, the President issued Constitutional Orders from time to time

as discussed in the other parts of the judgment. The process of integration of

Jammu and Kashmir was a gradual one. This was necessitated due to the

special conditions which prevailed in the State, as discussed in this segment.

PART E

The Constitution of Jammu and Kashmir, too, was meant to play a role in this

gradual process of integration. As evinced by the discussion of the historical

trajectory of the relationship of Jammu and Kashmir with the Union of India,

sovereignty was surrendered in part with the signing of the IoA and in full, with

the issuance of the Proclamation by Yuvraj Karan Singh in November 1949.

It remains to consider whether the Constitution of India or the Constitution of

Jammu and Kashmir lead to the conclusion that the State retained an element

of sovereignty.

c. Neither the constitutional setup nor any other factors indicate that the State

of Jammu and Kashmir retained an element of sovereignty

149. Article 1 of the Constitution of India provides that India is a Union of States.

The immutability and import of Article 1 in its application to the State of Jammu

and Kashmir may be gleaned from many provisions:

a. Article 1 (as it then stood) referenced Part III States, and Jammu and

Kashmir was listed as a Part III State in the First Schedule to the

Constitution of India;

b. Article 370(1)(c) of the Indian Constitution reiterates that Article 1 shall

apply to the State. While Article 370 contains provisions for applying

other provisions of the Constitution with modification or exceptions to the

State of Jammu and Kashmir, there is no provision for the modification

or abrogation of Article 1; and

PART E

c. Section 3 of the Constitution of Jammu and Kashmir declares that

Jammu and Kashmir is an integral part of India:

“Relationship of the State with the Union of India

The State of Jammu and Kashmir is and shall be an integral part of

the Union of India.”

d. Section 147 prohibits any amendment to Section 3.

These provisions, too, contradict the argument that an agreement of merger

was necessary for Jammu and Kashmir to surrender its sovereignty. The

Constitution, once adopted and in force, became the supreme governing

document of the land. The merger of Jammu and Kashmir with the Union of

India was an unequivocal fact, as evinced from these provisions.

150. On 17 November 1956, the Constituent Assembly of Jammu and Kashmir

approved and adopted the Constitution of Jammu and Kashmir. The

Preamble to the Constitution states:

“WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR,

having solemnly resolved, in pursuance of the accession of this

State to India which took place on the twenty-sixth day of October,

1947 to further define the existing relationship of the State with

the Union of India as an integral part thereof.”

(emphasis supplied)

Three aspects of the Preamble are of significance:

a. The Constitution of Jammu and Kashmir was not adopted independently

of the Union of India but was adopted in pursuance of the accession of

the State to India;

PART E

b. The Constitution of Jammu and Kashmir was only to further define the

relationship between the Union of India and the State of Jammu and

Kashmir. The relationship was already defined by the IoA, the

Proclamation issued by Yuvraj Karan Singh in November 1949 and more

importantly, by the Constitution of India; and

c. That the State of Jammu and Kashmir was an integral part of the Union

of India was reiterated in the Constitution of Jammu and Kashmir.

151. The debates of the Constituent Assembly of Jammu and Kashmir also reveal

that sovereignty lay with the people of India (which included the people of

Jammu and Kashmir) and not with the State or its people alone:

a. Shri Kushuk Bakula stated:

162

“…That we are thus made an integral party of India, that great

country of high ideas and glorious traditions to which the nation of

the world look for guidance and which is the one potent factor for

the maintenance of world peace at the present day cannot but be a

matter for unlimited jubilation for all of us…”

163

(emphasis supplied)

b. Shri Kotwal Chuni Lal stated:

“We again stand by the pledge of the National Conference that

Kashmir is an inseparable part of India.”

164

162

Shri Kushuk Bakula made his remarks in Bodhi. The Secretary of the Constituent Assembly read out an English

version of his speech.

163

25 October 1956, Debates of the Constituent Assembly of Jammu and Kashmir

164

7 November 1956, Debates of the Constituent Assembly of Jammu and Kashmir

PART E

c. Mrs Isher Devi Mani stated:

“The first point I want to emphasis is that we all must be aware that

Kashmir is an integral part of India. We have acceded to India of our

own free will and I see no reason why we should not be happy and

jubilant over this.”

165

d. The President of the State Constituent Assembly, GM Sadiq stated:

“We are an integral part of India and shall remain so forever. (Loud

applause). You stick to your decision. Today we are not alone or

unarmed today we are with India and 360 million Indians.”

166

This is a reiteration of the understanding of the members of the Constituent

Assembly of Jammu and Kashmir that accession to India was complete and

that sovereignty was surrendered.

152. There is a noticeable difference between the Preamble to the Indian

Constitution

167

and the Preamble to the Constitution of the State of Jammu

and Kashmir which has been extracted above. The Preamble to the Indian

Constitution states, “We the people of India, having solemnly resolved to

constitute India into a sovereign, socialist, secular and democratic

republic…” There is a clear absence in the Constitution of Jammu and

Kashmir of a reference to sovereignty. While the Constitution of India

emphasises in its Preamble that the people of India resolved to constitute

India into a sovereign, socialistic, secular, democratic, republic, the basic

purpose of the Constitution of Jammu and Kashmir as set out in the Preamble

165

17 November 1956, Debates of the Constituent Assembly of Jammu and Kashmir

166

25 January 1957, Debates of the Constituent Assembly of Jammu and Kashmir

167

The Preamble to the Indian Constitution: “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute

India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of

status and of opportunity; and to promote among them all; FRATERNITY assuring the dignity of the individual and

the unity and integrity of the Nation…”

PART E

is to define further the relationship of the State with the Union though as an

integral part of India. Section 2(a) of the Constitution of Jammu and Kashmir

provides that “the Constitution of India means the Constitution as applicable

in relation to this State”. Section 4 defines the territory of the State of Jammu

and Kashmir to comprise of all the territories which on 15 August 1947 were

under the sovereignty or suzerainty of the Ruler of the State. Section 5 defines

the extent of the executive and legislative power of the State in the following

terms:

“5. Extent of executive and legislative power of the State

The executive and legislative power of the State extends to all

matters except those with respect to which Parliament has power to

make laws for the State, under the provisions of the Constitution of

India.”

153. Section 5 defines the extent of the legislative and executive power of the State

by relating it to matters over which Parliament has power to make laws for the

State. In other words, the residual power which is left after excluding the

domain which falls within the ambit of the legislative power of Parliament in

relation to the State, would be within the legislative and executive domain of

the State of Jammu and Kashmir. Section 5 however recognises that the

legislative domain of Parliament in relation to the State of Jammu and

Kashmir would be prescribed by the Constitution of India and necessarily

therefore not by the Constitution of the State of Jammu and Kashmir.

PART E

154. Section 6 of the Jammu and Kashmir Constitution provides for Permanent

residents:

“Permanent residents

(1) Every person who is, or is deemed to be, a citizen of India under

the provisions of the Constitution of India shall be a permanent

resident of the State, if on the fourteenth day of May, 1954.

(a) he was a State subject of class I or of class II: or

(b) having lawfully acquired immovable property in the State, he has

been ordinarily resident in the State for not less than ten years prior

to that date.

(2) Any person who, before the fourteenth day of May, 1954 was a

State subject of Class I or of Class II and who, having migrated after

the first day of March, 1947, to the territory -now included in

Pakistan, returns to the State under a permit for resettlement in the

State or for permanent return issued by or under the authority of any

law made by the State Legislature shall on such return be a

permanent resident of the State.

(3) In this section, the expression "State subject of Class I or of Class

II" shall have the same -meaning as the State Notification No I-L/84

dated the twentieth April. '1927, read with State Notification No 13/L

dated the twenty- seventh June, 1932.”

It is important to note that permanent residents do not possess dual

citizenship – one of the State of Jammu and Kashmir and another of the Union

of India. Rather, they are citizens only of one sovereign unit, that is, the Union

of India.

168

155. Part IV of the Jammu and Kashmir Constitution provides for the Directive

Principles of State Policy; Part V for the Executive consisting of the Governor

and the Council of Ministers headed by the Chief Minister; Part VI for the State

168

SBI v. Santosh Gupta, (2017) 2 SCC 538

PART E

100

Legislature comprising of the Legislative Assembly and the Legislative

Council. Part VI provides for the High Court and the “subordinate courts”. Part

VIII provides for Finance, Property and Contracts; Part IX for the Public

Services; Part X for Elections and Part XI for Miscellaneous Provisions; Part

XII for Amendment of the Constitution. None of these provisions indicate that

the State is sovereign.

156. Section 147 which provides for the amendment of the State Constitution is in

the following terms:

“147. Amendment of the Constitution

An amendment of this constitution may be initiated only by the

introduction of a Bill for the purpose in the Legislative Assembly and

when the Bill is passed in each House by a majority of not less than

two-thirds of the total membership of at the House, it shall be

presented to the Sadar-i-Riyasat for his assent and, upon such

assent being given to the Bill, the Constitution shall stand amended

in accordance with the terms of the Bill:

Provided that a Bill providing for the abolition of the Legislative

Council may be introduced in the Legislative Assembly and passed

by it majority of the total membership of the Assembly and by a

majority of not less than two-thirds of the members of the Assembly

present and voting:

Provided further that no Bill or amendment seeking to make any

change in:

(a) this section;

(b) the provisions of the sections 3 and 5; or

relation to the State;

shall be introduced or moved in either house of the Legislature.”

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101

157. The power of the Legislative Assembly to amend the Constitution of Jammu

and Kashmir was subject to the constraints provided in the second proviso in

terms of which the Legislative Assembly could not amend:

a. Section 147 itself;

b. The provisions of Sections 3 and 5; and

c. The provisions of the Constitution of India as applicable in relation to the

State.

158. These provisions are significant. The power of amending the State

Constitution which was entrusted to the Legislative Assembly (subject to the

assent of the Governor) had thus three major qualifications: firstly, the position

that the State of Jammu and Kashmir is and shall be an integral part of the

Union of India was unamendable; secondly, the executive and legislative

domain of the State which depended upon the domain entrusted to Parliament

under the provisions of the Constitution of India over which it would make laws

for the State of Jammu and Kashmir was unamendable by the State

Legislative Assembly; and thirdly, the provisions of the Constitution of India

as applicable in relation to the State of Jammu and Kashmir were

unamendable by the State Legislative Assembly. These restraints which were

imposed on the amending power of the State Legislative Assembly made it

abundantly clear that Jammu and Kashmir being an integral part of the Union

of India was a matter of permanence and unalterable. Moreover, any

modification in the relationship of the State of Jammu and Kashmir with the

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102

Union of India would have to be brought about within the framework of the

Constitution of India and that Constitution alone.

159. In adopting the Constitution of India, “We, the people” constituted India into a

sovereign republic. The State of Jammu and Kashmir was an integral part of

the India. The Constitution of Jammu and Kashmir recognized that position

by acknowledging the permanence of Jammu and Kashmir as a constituent

State in the sovereign republic of India. In attempting to “further define” the

relationship between the State of Jammu and Kashmir with the Union of India,

the use of the expression “further” conveys the intendment that the defining

characteristics of that relationship were not exclusively embodied in the

Constitution of the State. The State being an integral part of the Union of India,

the executive and legislative domain of the State relates to the Constitution of

India. The territorial integrity of the Union of India, which encompassed as one

of the constituent units, the State of Jammu and Kashmir, was beyond the

domain of the authorities in the legislative and executive sphere constituted

by the State Constitution. The defining contours of the relationship between

the State and the Union lay beyond the framework of the State Constitution

and would be governed by the Constitution of the Union.

160. Any restraints on the power to modify the relationship of the Union with the

State would thus have to be traced to the Constitution of India and not the

Constitution of Jammu and Kashmir. Significantly, the Constitution of the

State of Jammu and Kashmir did not contain an elaboration of the subjects

on which the State could legislate in view of the provisions of Section 5. The

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103

legislative domain of the State of Jammu and Kashmir was a remainder or the

residue left after the legislative domain of Parliament to make laws for the

State of Jammu and Kashmir as defined in the Constitution of India.

161. The Preamble of the Constitution of Jammu and Kashmir, Sections 3, 5 and

147 of the State Constitution, coupled with Article 1 of the Constitution of India

read with the First Schedule as well as Article 370 indicate in no uncertain

terms that a system of subordination (as understood by the definition of

sovereignty) exists by which the State is subordinate to the Indian Constitution

first and only then to its own Constitution. The Constitution of India was and

is the supreme governing document of all States including the State of Jammu

and Kashmir. The discussion of the provisions of the two Constitutions in the

preceding paragraphs is indicative of this fact.

162. In SBI v. Santosh Gupta,

169

this Court rejected the argument that the

Constitution of Jammu and Kashmir has a status that is equal to the

Constitution of India:

“12. … the State does have its own separate Constitution by which

it is governed in all matters, except those surrendered to the Union

of India. Amendments that are made in the Constitution of India are

made to apply to the State of Jammu & Kashmir only if the President,

with the concurrence of the State Government, applies such

amendments to the State of Jammu & Kashmir. The distribution of

powers between the Union and the State of Jammu & Kashmir

reflects that matters of national importance, in which a uniform policy

is desirable, is retained with the Union of India, and matters of local

concern remain with the State of Jammu & Kashmir. And, even

though the Jammu & Kashmir Constitution sets up the District

Courts and the High Court in the State, yet, the supreme authority

of courts to interpret the Constitution of India and to invalidate action

violative of the Constitution is found to be fully present. Appeals from

169

(2017) 2 SCC 538

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the High Court of Jammu & Kashmir lie to the Supreme Court of

India, and shorn of a few minor modifications, Articles 124 to 147 all

apply to the State of Jammu & Kashmir, with Articles 135 and 139

being omitted. The effect of omitting Articles 135 and 139 has a very

small impact, in that Article 135 only deals with jurisdiction and

powers of the Federal Court to be exercised by the Supreme Court,

and Article 139 deals with Parliament's power to confer on the

Supreme Court the power to issue directions, orders, and writs for

purposes other than those mentioned in Article 32(2). We may also

add that permanent residents of the State of Jammu & Kashmir are

citizens of India, and that there is no dual citizenship as is

contemplated by some other federal Constitutions in other parts of

the world. All this leads us to conclude that even qua the State of

Jammu & Kashmir, the quasi-federal structure of the Constitution of

India continues, but with the aforesaid differences. It is therefore

difficult to accept the argument of Shri Hansaria that the Constitution

of India and that of Jammu & Kashmir have equal status. Article 1

of the Constitution of India and Section 3 of the Jammu & Kashmir

Constitution make it clear that India shall be a Union of States, and

that the State of Jammu & Kashmir is and shall be an integral part

of the Union of India.”

163. Parliament has the power to enact laws on all matters which are not listed in

Lists II and III by virtue of Article 246 read with Entry 97 of List I of the Seventh

Schedule. However, Entry 97 was not extended to the State of Jammu and

Kashmir by any Constitution Order issued under Article 370(1)(b). Thus,

unlike other states, the State of Jammu and Kashmir had residuary legislative

powers in view of Section 5 of the Constitution of Jammu and Kashmir. At this

juncture, it is important to refer to the Delhi agreement where it was decided

that the State of Jammu and Kashmir shall have the residuary legislative

powers because of the "consistent stand taken by the Constituent Assembly

of Jammu and Kashmir” that sovereignty with respect to all matters other than

those stipulated in the IoA continues to reside in the State. This is not

indicative of the sovereignty of Jammu and Kashmir. Residual legislative

powers cannot be equated to residual sovereignty. It instead reflects the value

of federalism and the federal underpinnings of the Constitution of India.

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Neither Parliament nor any of the States have the unrestricted power to make

laws. Each has its own sphere of legislation, as demarcated by the three lists

in the Seventh Schedule to the Constitution. Each is supreme in its own

sphere. The States have the plenary power to enact laws but this alone

cannot be taken as a sign of sovereignty of individual States.

164. It is true that many commentators refer to these aspects of federalism as

‘internal sovereignty.’ By whatever name so called, it is clear that all States in

the country have legislative and executive power albeit to differing degrees.

The Constitution accommodates concerns specific to a particular State by

providing for arrangements which are specific to that State. Articles 371A to

371J are examples of special arrangements for different States. This is

nothing but a feature of asymmetric federalism,

170

which Jammu and Kashmir

too benefits from by virtue of Article 370. 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. In asymmetric

federalism, a particular State may enjoy a degree of autonomy which another

State does not. The difference, however, remains one of degree and not of

kind. Different states may enjoy different benefits under the federal setup but

the common thread is federalism.

165. If the position that Jammu and Kashmir has sovereignty by virtue of Article

370 were to be accepted, it would follow that other States which had special

arrangements with the Union also possessed sovereignty. This is clearly not

170

State (NCT of Delhi) v. Union of India, (2023) 9 SCC 1

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the case. As noticed by this Court in other segments of this judgment, the

special circumstances in Jammu and Kashmir necessitated a special

provision, that is, Article 370. Article 370 is an instance of asymmetric

federalism. The people of Jammu and Kashmir, therefore, do not exercise

sovereignty in a manner which is distinct from the way in which the people of

other States exercise their sovereignty. In conclusion, the State of Jammu

and Kashmir does not have ‘internal sovereignty’ which is distinguishable

from that enjoyed by other States.

166. In Prem Nath Kaul (supra), a suit was filed by the appellant against the State

of Jammu and Kashmir for a declaration that the Jammu and Kashmir Big

Landed Estate Abolition Act 2007 was “void, inoperative and ultra vires of

Yuvraj Karan Singh who enacted it” so that the appellant could retain

possession of his lands. The suit was dismissed and the High Court in appeal

confirmed the dismissal. The Constitution Bench, speaking through P B

Gajendragadkar, J. (as the learned Chief Justice then was) noted two

developments which had taken place. First, Maharaja Hari Singh who had

succeeded Maharaja Pratap Singh as the Ruler of Kashmir issued Regulation

1 of 1991 (1934) in response to a public agitation in Kashmir for the

establishment of responsible government. Section 3 of the Regulation

provided that all powers - legislative, executive and judicial in relation to the

State were declared to be inherent in and possessed and retained by the

Maharaja. Section 30 provided that no measure would be deemed to be

passed by the Praja Sabha until the Maharaja had signified his assent.

Secondly, in 1939, the Maharaja promulgated the Jammu and Kashmir

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Constitution Act 14 of 1996 (1936). As a consequence, Regulation 1 of 1991

(1934) was overhauled. Section 5, like Section 3 of Regulation 1 of 1991,

recognized and preserved all the inherent powers of the Maharaja. The

Constitution Bench noted that with the passing of the Indian Independence

Act 1947, the suzerainty of His Majesty over Indian States lapsed together

with all agreements and treaties in force. With the lapse of British

Paramountcy, Jammu and Kashmir, like other Indian States, was theoretically

free from the limitations imposed by the paramountcy of the British Crown

subject to the proviso to Section 7(1)(b) which prescribed that effect shall

continue to be given to the provisions of any earlier agreement in relation to

the subjects enumerated in the proviso until the provisions are denounced by

the Rulers of the Indian States or by the Dominion on the other hand and are

superseded by subsequent agreements.

167. In the course of the judgment, the Constitution Bench adverted to the events

leading up to the execution of the IoA by the Maharaja on 25 October 1947,

the replacement of a popular interim government by a Proclamation dated 5

March 1948 which envisaged the convening of a National Assembly which

would frame a Constitution, the issuance of a Proclamation on 20 June 1949

by which he entrusted to Yuvraj Karan Singh all his functions whether

legislative, judicial or executive, the Proclamation issued on 25 November

1949 by Yuvraj Karan Singh that the Constitution of India shortly to be

adopted by the Constituent Assembly of India shall, insofar as it is applicable

to the State of Jammu and Kashmir, govern the relationship between the

State and the Union of India and shall be enforced in the State by him, his

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heirs and successors in accordance with the tenure of its provisions.

Moreover, the provisions of the Constitution would, according to the

Proclamation, supersede and abrogate all other constitutional provisions

inconsistent with it which were then in force in the State.

168. The Proclamation was followed by the issuance of the Constitution

(Application to Jammu and Kashmir) Order 1950 (CO10) on 26 January 1950.

The legislation in question was promulgated by Yuvraj Karan Singh on 17

October 1950 in exercise of the powers vested in him by Section 5 of the

Constitution of the State of 1934 and the proclamation of the Maharaja dated

20 June 1949. Thereafter, on 20 April 1951, the Yuvraj directed the

constitution of a Constituent Assembly for the framing of a Constitution for the

State of Jammu and Kashmir. An elected Constituent Assembly was

constituted which framed the Constitution for the State. As a result of the

Constitution, hereditary rule was abolished and a provision was made for the

election of a Sadar-i-Riyasat to be the Head of the State. On 13 November

1952, the Yuvraj was elected to the office of the Sadar-i-Riyasat ending the

dynastic rule in the State. The validity of the State legislation was questioned

on the ground that Yuvraj Karan Singh had no authority to promulgate the Act.

169. The Constitution Bench noted that prior to the passing of the Independence

Act 1947, the sovereignty of the Maharaja over the State was subject to such

limitations as were constitutionally imposed by the paramountcy of the British

Crown and by the treaties and agreements entered into with the British

Government. However, the Maharaja was “an absolute monarch” as regards

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the internal administration and governance of the State and was vested with

all executive, legislative and judicial powers. The Court rejected the

submission that the sovereignty of the Maharaja was affected by the

provisions of the IoA, holding:

“26 … But it is urged that the sovereignty of the Maharaja was

considerably affected by the provisions of the Instrument of

Accession which he signed on October 25, 1947. This argument is

clearly untenable. It is true that by clause 1 of the Instrument of

Accession His Highness conceded to the authorities mentioned in

the said clause the right to exercise in relation to his State such

functions as may be vested in them by or under the Government of

India Act, 1935 as in force in the said Dominion on August 15, 1947,

but this was subject to the other terms of the Instrument of

Accession of the sovereignty of His Highness in and over his State.

We must therefore, reject the argument that the execution of the

Instrument of Accession affected in any manner the legislative,

executive and judicial powers in regard to the Government of the

State which then vested in the Ruler of the State.”

This Court rejected the argument that the Monarch lost plenary legislative

powers upon the establishment of a popular interim government by the

Proclamation dated 5 March 1948 observing that the Cabinet still had to

function under the overriding powers of the Monarch:

“… the Maharaja very wisely chose to entrust the actual

administration of the Government to the charge of a popular

Cabinet; but the description of the Cabinet as a popular interim

Government did not make the said Cabinet a popular Cabinet in the

true constitutional sense of the expression. The Cabinet had still to

function under the Constitution Act 14 of 1996 (1939) and whatever

policies it pursued, it had to act under the overriding powers of His

Highness. It is thus clear that until the Maharaja issued his

proclamation on June 20, 1949, all his powers legislative, executive

and judicial as well as his right and prerogative vested in him as

before. That is why the argument that Maharaja Hari Singh had

surrendered his sovereign powers in favour of the Praja Sabha and

the popular interim Government, thereby accepting the status of a

constitutional monarch cannot be upheld.”

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After analysing the provisions of Article 370, the Court observed:

“38. On the said construction the question which falls to be

determined is: Do the provisions of Article 370(1) affect the plenary

powers of the Maharaja in the matter of the governance of the State?

The effect of the application of the present article has to be judged

in the light of its object and its terms considered in the context of the

special features of the constitutional relationship between the State

and India. The Constitution-makers were obviously anxious that the

said relationship should be finally determined by the Constituent

Assembly of the State itself; that is the main basis for, and purport

of, the temporary provisions made by the present article; and so the

effect of its provisions must be confined to its subject-matter. It

would not be permissible or legitimate to hold that, by implication,

this article sought to impose limitations on the plenary legislative

powers of the Maharaja. These powers had been recognised and

specifically provided by the Constitution Act of the State itself; and it

was not, and could not have been, within the contemplation, or

competence of the Constitution-makers to impinge even indirectly

on the said powers. It would be recalled that by the Instrument of

Accession these powers have been expressly recognised and

preserved and neither the subsequent proclamation issued by

Yuvaraj Karan Singh adopting, as far as it was applicable, the

proposed Constitution of India, nor the Constitution order

subsequently issued by the President, purported to impose any

limitations on the said legislative powers of the Ruler. What form of

Government the State should adopt was a matter which had to

be, and naturally was left to be, decided by the Constituent

Assembly of the State. Until the Constituent Assembly reached

its decision in that behalf, the constitutional relationship

between the State and India continued to be governed basically

by the Instrument of Accession. It would therefore be

unreasonable to assume that the application of Article 370 could

have affected, or was intended to affect, the plenary powers of the

Maharaja in the matter of the governance of the State. In our

opinion, the appellant's contention based on this article must

therefore be rejected.”

(emphasis supplied)

170. The Constitution Bench, therefore, rejected the challenge to the constitutional

validity of the provisions of the State enactment. The court in Prem Nath Kaul

(supra) had to decide on the validity of the Estate Abolition Act. The limited

question before the Constitution Bench in Prem Nath Kaul (supra) was

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whether the Monarch held plenary legislative powers after the Constitution of

India as it applied to Jammu and Kashmir was adopted in the State but before

the Constitution of Jammu and Kashmir was adopted. A decision is an

authority for the proposition which it decides. The question of whether the

State of Jammu and Kashmir retained sovereignty upon integration with the

Dominion of India did not arise in that case. The legislation in question was

promulgated by Yuvraj on 17 October 1950 before the Constituent Assembly

of the State was constituted and the Constitution of Jammu and Kashmir was

adopted. When the Constitution of India was adopted, all the provisions of the

Constitution did not automatically apply to the State of Jammu and Kashmir.

By virtue of Article 370(1)(c), only Articles 1 and 370 applied to the State of

Jammu and Kashmir when the Constitution was adopted. Upon the adoption

of the Constitution of India, the State of Jammu and Kashmir like all other

States adopted a democratic form of Government. However, in the absence

of Constitutional provisions to that regard, the form of Government already in

the State continued to have force. Upon the adoption of the Constitution, the

provisions of the Indian Constitution relating to the establishment of a

Legislative Assembly for States in Part B of the First Schedule and by which

the ruler was designated as the Rajpramukh did not extend to the State of

Jammu and Kashmir. Since the form of the Government in Jammu and

Kashmir was yet to be put in force by the Government and the Constituent

Assembly of the State, the form of Government already in existence continued

to be in force until such necessary provisions could be made for the State.

This is evident from the observation that the Monarch did not become a

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Constitutional Monarch upon the establishment of a popular interim

Government by the Proclamation dated 5 March 1948 because the Cabinet

still had to act under the overriding powers of the Monarch and it was only

with the adoption of the Constitution of Jammu and Kashmir that hereditary

rule was abolished.

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

171. On 19 June 2018, Mehbooba Mufti resigned as Chief Minister after the

Bharatiya Janata Party withdrew from the alliance with the Jammu and

Kashmir Peoples’ Democratic Party. On the next day, the Governor of Jammu

and Kashmir with the approval of the President imposed Governor’s rule in

the State of Jammu and Kashmir in exercise of power under Section 92 of the

Constitution of Jammu and Kashmir. The Proclamation issued under Section

92 would cease to operate on the expiry of six months from the date on which

it was issued. Section 92 of the Constitution of Jammu and Kashmir, unlike

Article 356 of the Indian Constitution, does not permit the extension of the

Proclamation beyond six months. Thus, Governor’s rule would have come to

an end on 19 December 2018. The President issued a Proclamation under

Article 356 on 19 December 2018. The Proclamation was approved by the

Lok Sabha on 28 December 2018 and the Rajya Sabha on 3 January 2019.

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On 28 June 2019 and 1 July 2019, the Lok Sabha and Rajya Sabha extended

President’s rule for another six months.

172. No challenge was mounted to the Proclamations under Section 92 of the

Constitution of Jammu and Kashmir until after the tenure of the Proclamation

had ended. No challenge was made to the Proclamation under Article 356 of

the Constitution of India immediately after it was issued. When the

Proclamation was in the force, the President issued COs 272 and 273 by

which Article 370 and the special constitutional status of Jammu and Kashmir

was in effect repealed. The petitioners mounted a challenge to the abrogation

of the special status of Jammu and Kashmir by challenging the validity of COs

272 and 273 and to the Proclamations issued by the Governor and the

President in 2018 and the extension of the Presidential Proclamation in 2019.

173. The Solicitor General of India argued that (a) neither the imposition of

Governor’s rule nor President’s rule was challenged contemporaneously in

2018 and the petitioners have been unable explain the cause for the delay;

(b) the petitioners in their writ petitions have not pleaded grounds for

challenging the Proclamations; and (c) the challenges to the Proclamations

were initiated only after Article 370 was abrogated. The Proclamations, it was

urged, were not independently challenged and they were challenged only

because the impugned actions were taken during the subsistence of the

Proclamations.

174. The power of the President under Article 356 to issue a Proclamation is of an

exceptional nature which has wide ramifications on the autonomy of the State

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and the federal framework at large. Thus, laches in challenging the

Proclamations cannot by itself be a valid ground to reject a constitutional

challenge to the Proclamations issued under Article 356 of the Constitution

and Section 92 of the Constitution of Jammu and Kashmir. However, we are

of the opinion that the challenge to the validity of the Proclamations does not

merit adjudication because:

a. The pleadings of the petitioners in the writ petitions indicate that their

principal challenge is to the abrogation of Article 370 and whether such

an action could have been taken during President’s rule.

171

The

challenge is to actions taken during the subsistence of President’s rule

and not independently to President’s rule by itself; and

b. Even if this Court holds that the Proclamation could not have been issued

under Article 356, there would be no material relief which can be given

in view of the fact that it was revoked on 31 October 2019. We are

conscious that this Court in SR Bommai (supra) held that status quo

ante can be restored upon finding that the Proclamation is invalid and

the Court has the power to validate specific actions which were taken

when the Proclamation was in force. The petitioners have assailed the

specific actions which were taken when the Proclamation was in force on

the ground that these actions breach the constitutional limitations on the

171

WP (C) 1068 of 2019 assails the validity of the 2018 Proclamation and its extension but does not mention any

grounds for the challenge. WP (C) 1099 of 2019 and WP (C) 1165 of 2019 have challenged the suspension of the

proviso to Article 3 by the 2018 Proclamation but not the 2018 Proclamation itself. One of the grounds in WP (C)

1165 of 2019 is that the 2018 Proclamation is invalid but no reasons are mentioned.

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exercise of power after a Proclamation under Article 356 is issued. These

substantive challenges which form the fulcrum of the case of the

petitioners are being considered in the section below.

iii. Limitations on the exercise of power by President or Parliament under

Article 356

175. It now falls upon us to address the argument of the petitioners that the

impugned COs could not have been issued and the Reorganization Act could

not have been enacted when Article 356 was in operation in the State of

Jammu and Kashmir. The petitioners submit that the State’s executive and

legislative power cannot be exercised by the Union under Article 356 to: (a)

take irrevocable decisions when the Proclamation has a limited shelf life. The

power must be limited to actions that restore the constitutional machinery in

the State along with orders which are necessary for the purposes of daily

administration; and (b) unsettle constitutional safeguards in favour of States.

176. On the other hand, the Union Government contends that to read any further

limitations on the exercise of the powers of the President or of Parliament

under Article 356, in addition to the limitations expressly provided in the

Constitution, would amount to this Court undertaking an exercise of redrafting

the provision.

177. The issues that fall for consideration are whether (a) there are any limits on

the exercise of executive and legislative power of the States by the Union

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after a Proclamation is issued under Article 356; and (b) if so, the scope of

judicial review of such exercise of power.

a. Presidential Proclamation under Article 356

178. Article 355 provides that it is the duty of the Union to protect every State

against external aggression and internal disturbance, and to “ensure that the

government of every State is carried in accordance with the provisions of this

Constitution.”

179. Article 356 deals with a failure of constitutional machinery in a state. Clause

1 of Article 356 outlines both the substantive threshold for the invocation of

President’s rule and the legal powers that are delegated to the President and

Parliament upon the invocation of President’s rule. The relevant portion of

Article 356 is extracted below:

“356. Provisions in case of failure of constitutional machinery in

States:

(1) If the President, on receipt of a report from the Governor of a

State or otherwise, is satisfied that a situation has arisen in which

the Government of the State cannot be carried on in accordance

with the provisions of this Constitution, the President may by

Proclamation—

(a) assume to himself all or any of the functions of the Government

of the State and all or any of the powers vested in or exercisable by

the Governor or any body or authority in the State other than the

Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be

exercisable by or under the authority of Parliament;

the President to be necessary or desirable for giving effect to the

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objects of the Proclamation, including provisions for suspending in

whole or in part the operation of any provisions of this Constitution

relating to any body or authority in the State:

Provided that nothing in this clause shall authorise the President to

assume to himself any of the powers vested in or exercisable by a

High Court, or to suspend in whole or in part the operation of any

provision of this Constitution relating to High Courts.

[…]”

180. Article 356 accounts for a situation where there is a breakdown – a ‘failure’ as

the Article states - of the constitutional machinery in the State. Though this

phrase is found in the marginal note of the provision and not its text,

judgments of Constitution Benches of this Court have held that Article 356

must be interpreted with reference to the marginal note.

172

For the President

to issue a Proclamation under Article 356, two pre-conditions have to be

fulfilled, which are: (a) the satisfaction of the President that a situation has

arisen in which the government of a State cannot be carried on in accordance

with the provisions of the Constitution; and (b) the satisfaction that such a

situation has arisen must be formed either on the basis of a report sent by the

Governor of the State or otherwise. If these two conditions have been fulfilled,

the President by a Proclamation may: (a) assume to himself “all or any”

functions of the Government of the State and “all or any” powers vested in or

exercisable by the Governor or any other authority in the State; (b) declare

that the powers of the Legislature of the State shall be exercisable by or under

the authority of Parliament; and (c) make “incidental and consequential”

provisions which are “necessary or desirable” for giving effect to the object of

172

State of Rajasthan v. Union of India (1977) 3 SCC 392 and SR Bommai v. Union of India, (1994) 3 SCC 1

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the Proclamation. This would also include the power to suspend in whole or

in part, a provision of the Constitution relating to any body or authority in the

State. However, the President is barred from exercising the powers of High

Courts or suspending any provision of the Constitution related to High Courts.

181. The subsequent clauses of Article 356 prescribe conditions relating to the

tenure of the Proclamation. Every Proclamation must be laid before Houses

of Parliament, and unless approved by a resolution by both the Houses shall

cease to operate within two months.

173

However, where the Council of States

approves the resolution in two months but the House of People is dissolved,

the Proclamation ceases to operate on the expiry of thirty days from the date

on which the House of People first sits after reconstitution unless a resolution

approving the Proclamation is passed by the House of People before that.

174

Article 356(4) states that an approved Proclamation has a life of six months

from the date of the issuance of the Proclamation (not the date of approval)

unless another Proclamation approving the continuance of the Proclamation

is passed. This Proclamation also has a life of six months.

175

Thus, Parliament

may approve the Proclamation in the first instance (which then has a life of

six months) and thereafter also approve its continuance, which shall extend

the life of the Proclamation by another six months. However, Parliament shall

not pass a resolution approving a Proclamation for a period beyond one year

since the date of issuance of the Proclamation unless (a) a national

emergency under Article 352 is in operation in the whole of India or whole or

173

Article 356(3)

174

Article 356(4)

175

Article 356(4)

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any part of the State; and (b) the Election Commission of India certifies that it

is necessary that the Proclamation continues to be in force because of the

difficulties in holding general elections.

176

However, in no circumstances shall

the Proclamation remain in force for more than three years since the date it

was first issued.

177

182. Where a Proclamation under Article 356 declares that the power of the

legislature of the State shall be exercisable by or under the authority of

Parliament, Article 357 enunciates the consequences. In such a situation,

Parliament which has been conferred with the “powers of the legislature of

the State” may confer on the President the power of the legislature to “make

laws”, and authorise the President to delegate the power to any other

authority, subject to any conditions which the President may impose.

Parliament or the President or any other authority to whom the power to make

laws has been delegated may enact laws conferring powers and imposing

duties upon the Union or its officers and authorities. When the House of the

People is not in session, the President may authorise expenditure from the

Consolidated Fund pending the sanction of Parliament. Article 357(2) states

that the law enacted by Parliament or the President or any other authorised

body which it otherwise would not have been competent to enact but for the

Proclamation under Article 356 shall continue to remain in force even after

the Proclamation ceases to operate. It shall continue to remain in force unless

the State legislature or any authority alters, repeals or amends the law.

176

Article 256(5)

177

First proviso to Article 356(4)

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b. Interpreting Article 356 in the aftermath of SR Bommai

183. This Court has in earlier judgments interpreted the scope of the power of the

President to issue a Proclamation under Article 356. The approach of this

Court towards interpreting the scope of this unique power of the Union

Government which correspondingly reduces the autonomy of States has

undergone a sea-change from the decision of a seven-Judge Bench in State

of Rajasthan v. Union of India

178

to a decision of a nine-Judge Bench in SR

Bommai v. Union of India

179

184. The factual matrix in State of Rajasthan (supra) was as follows: the

candidates of the Congress party were defeated in the elections to the Lok

Sabha in nine Congress-ruled States in the elections of 1977 held after the

end of the national Emergency in 1975. The Home Minister of the Union

Government which was headed by a coalition of parties under the banner of

Janata alliance wrote to the Chief Minister of each of the States to consider

advising the Governor to dissolve the legislative assembly. Six States

(Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh, and Orissa)

filed suits seeking a declaration that the letter of the Home Minister was ultra

vires the Constitution, and sought an injunction restraining the Union

Government from resorting to Article 356 of the Constitution. This Court while

dismissing the writ petitions and suits held:

178

(1977) 3 SCC 392

179

(1994) 3 SCC 1

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a. The actions of the Governor under Article 356 can be both “preventive

or curative” because Article 355 vests the Union Government with a duty

to ensure that the Government of the State is carried out in accordance

with the Constitution;

180

b. The grounds for judicial review of a Proclamation under Article 356 are

limited. The Court can only interfere with the decision on grounds of mala

fides or if there were extraneous considerations;

181

c. The independence of States only lasts when the State executive and

legislature have not violated their constitutional duties. If they have, the

Union is capable of enforcing its views on such matters to enable the

Constitution to work in a manner that the Union Government wants it

to;

182

d. The President while exercising power under Article 356 can “take over

all the functions of the Governor” to themselves,

183

and “can do whatever

the Governor could in exercise of such power.”

184

It would be immaterial

if the consequence of the exercise of power is final and irrevocable. This

includes the power to dissolve the Legislative Assembly of a State; and

e. A resolution by both Houses of Parliament approving the Proclamation

is not a condition precedent for the dissolution of the Legislative

Assembly of a State. Even if such a resolution is not passed, the

180

Chief Justice Beg (paragraph 45)

181

Justice Bhagwati (paragraph 150)

182

Chief Justice Beg (paragraph 37)

183

Chief Justice Beg (paragraph 66)

184

Justice Bhagwati (paragraph 146)

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Proclamation has a minimum shelf life of two months because

immediate actions are required to be taken in urgent situations.

185

Irrevocable actions taken in those two months such as dissolving the

assembly and holding fresh elections cannot be remedied even if the

Proclamation is declared unconstitutional

186

In fact, the power to

dissolve the State legislature is implicit in Article 356(1)(b).

187

185. In State of Rajasthan (supra), the seven-Judge Bench of this Court read

Article 356 widely to grant untrammelled executive power to the Union

Government without Parliamentary oversight. In essence, the Union

Government (acting through the President) could unilaterally remove the

Government of the State and dissolve the legislative assembly of the State

completely abrogating the federal interests and the democratic rights of the

residents of the State. Though this Court held that the exercise of power to

issue a Proclamation under Article 356 is open to judicial review, the grounds

for review were limited to mala fide or extraneous considerations.

186. The decision of this Court in SR Bommai (supra) changed the position of law

significantly. In this case, a nine-Judge Bench of this Court placed restraints

on the exercise of power by the President under Article 356 by emphasising

the significance of Parliamentary control over the Proclamation and

expanding the scope of judicial review of the ‘subjective satisfaction’ of the

President under Article 356.

185

Chief Justice Beg (paragraph 89); Justice Bhagwati (paragraph 146)

186

Justice YV Chandrachud (paragraphs 125 and 126)

187

Justice Fazl Ali (paragraph 218)

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187. In SR Bommai (supra), this Court extensively dealt with the scope of the

Presidential power under Article 356. On numerous questions of law, the

Bench disagreed with the reasoning in State of Rajasthan (supra). One of

the chief reasons which lead to the tectonic shift in the Court’s approach to

the scope of the President’s powers under Article 356 was the abuse of the

power under Article 356. When the Constituent Assembly was discussing the

draft of Article 356 in the present form, Dr. BR Ambedkar observed that he

hoped that the power under Article 356 would never be called into operation

and that it would remain a dead letter.

188

However, by the time this Court

decided SR Bommai (supra), the President had exercised the power under

Article 356 more than ninety times.

189

While the members of the Constituent

Assembly hoped that the power under Article 356 would only be used in

extraordinary situations, history indicated that the power has been misused

frequently to achieve political ends. In the Constituent Assembly Debates, Mr.

Santhanam observed that it is only strong conventions that will prevent the

misuse of power under Article 356.

190

This Court in SR Bommai (supra)

placed limitations on the power of the President to issue a Proclamation under

Article 356 and expanded the scope of judicial review of a Presidential

Proclamation. This Court’s interpretation of Article 356 in SR Bommai (supra)

188

“In fact I share the sentiments expressed … that the proper thing we ought to expect is that such articles will

never be called into operation and that they would remain a dead letter. If at all, they are brought into operation, I

hope the President, who is endowed with all these powers, will take proper precautions before actually suspending

the administration of the provinces. I hope the first thing he will do would be to issue a mere warning to a province

that has erred, that things were not happening in the way in which they were intended to happen in the Constitution.”

(Constituent Assembly Debates, Vol. IX, p. 177)

189

The judgments of Justice Jeevan Reddy and Justice Ahmadi expressly record this.

190

Constituent Assembly Debates, Vol. 9, 03 Aug 1949

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has prevented its misuse, creating strong conventions on the exercise of

power under the provision.

188. For the purpose of discussing the ratio decidendi in SR Bommai (supra), we

will refer to the opinion of Justice Sawant who authored the opinion for himself

and Justice Kuldip Singh, with whom Justice Jeevan Reddy (writing for

himself and Justice Agarwal) substantially agreed except on one crucial point.

Justice Pandian agreed with the opinion of Justice Jeevan Reddy. The ratio

decidendi of the opinion of the majority is summarised below:

a. The satisfaction of the President under Article 356 must be based on

objective material either through the Governor’s report or ‘otherwise’;

b. The Proclamation issued by the President under Article 356(1) is subject

to judicial review. Article 74(2) only bars the court from enquiring if any

advice was given but does not bar scrutiny of the material which formed

the basis of the advice. The Court must determine if there was any

material to indicate the failure of constitutional machinery in the State.

While the sufficiency of the material cannot be questioned by courts, the

legitimacy of the inference drawn from such material is open to judicial

review. Once the petitioner makes a prima facie case challenging the

Proclamation, the burden shifts to the Union Government to prove that

the Proclamation was backed by relevant material;

c. Article 356(3) which mandates that the Proclamation be approved by

both Houses of Parliament is a check on the power of the President to

issue a Proclamation. The President cannot exercise powers under

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Article 356(1) to take ‘irreversible’ actions unless both the Houses have

approved the Proclamation. It is for this reason that the President cannot

dissolve the legislative assembly (which is an irreversible action) until “at

least” both Houses of Parliament approve the Proclamation;

d. Dissolution of the legislative assembly is not a “natural consequence” of

the issuance of Proclamation;

e. The resolution approving the Proclamation cannot save the

Proclamation and the actions taken under it if the Court holds that the

Proclamation is invalid. If the Proclamation is invalid, then it would be

open to the Court to restore status quo ante which would also include

restoration of the Legislative Assembly if it has been dissolved; and

f. The Court/legislative assembly/Parliament has the power to review,

repeal and modify such actions or laws which were taken when the

Proclamation was in force.

191

The Court can validate specific actions

which are capable of being validated such as restoring the legislative

assembly.

192

189. It is important for this Court to address the decisions in State of Rajasthan

(supra) and SR Bommai (supra) at length because the shift in the approach

of interpreting the power of the President to issue a Proclamation under Article

356 would also impact the determination of whether there are any limits on

the power of the President and Parliament after the Proclamation has been

191

Justice Reddy (paragraph 292)

192

Justice Sawant (paragraph 114)

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issued. The following conclusions are drawn from the decision in SR Bommai

(supra), which brought about a metamorphosis from the position in the State

of Rajasthan (supra):

a. This Court in its seven-Judge decision in State of Rajasthan (supra)

opted for an interpretation of Article 356 which had a centripetal impact,

that is, it had a centralising tendency which led to an accumulation of

power with the Centre and away from the federating states. This is

evident from the narrow scope of judicial review of the exercise of power

by the President under Article 356, and the holding that the President

can take irrevocable actions (including dissolving the Legislative

Assembly) even before the Proclamation is approved by both Houses of

Parliament under Article 356(3). However, this Court in a larger

combination of nine judges in SR Bommai (supra) opted for an

interpretation which had a centrifugal impact, that is, an interpretation

which leads to enhancing the autonomy of the federating states. In fact,

the opinion of Justice Sawant expressly notes that an interpretation

which preserves and not subverts the constitutional fabric must be

opted. This is evident from this Court expanding the scope of judicial

review of the Proclamation and the holding that irrevocable actions

cannot be taken before Parliament approves the Proclamation. The

interpretation of Article 356 in SR Bommai (supra) was in furtherance of

the constitutional principles of federalism and legislative (and not

executive) supremacy. The decision in SR Bommai (supra) holds the

field because it was rendered by a Bench of nine Judges while the

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decision in State of Rajasthan (supra) was rendered by a Bench of

seven Judges; and

b. The standard of judicial review laid down in State of Rajasthan (supra)

of whether extraneous considerations led to the exercise of power under

Article 356 focused only on the purpose of (or the reasons for) issuing

a Proclamation. The Union did not have to show that the purpose indeed

existed. The decision in SR Bommai (supra) by expanding the scope of

judicial review of the Proclamation shifted the onus on the Union

Government to justify the exercise of power. The Union through the

submission of material was required to show that there was a breakdown

of constitutional machinery as claimed. This change in the standard of

review indicates a shift from a culture of deference to a culture of

justification. It flows from (a) that the Court while deciding if the Union

Government has justified its actions must also assess the impact of the

Proclamation issued under Article 356 on the federal structure.

c. SR Bommai on validity of exercise of power after the Proclamation

190. The majority in SR Bommai (supra) devised a more stringent standard to

test the validity of a Proclamation under Article 356. The primary focus of the

decision is on the standard to be applied to judicially review the validity of a

Proclamation under Article 356. However, in addition to it, this Court made

certain observations on the limits on the exercise of power after a

Proclamation is issued. One of the issues before this Court in SR Bommai

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(supra) was whether Article 356(1)(a) places any limitation on the exercise of

legislative and executive power by the Union after a Proclamation has been

issued and more specifically, whether dissolution of the Legislative Assembly

of the State and the political executive is a natural consequence of the

exercise of power under Article 356(1). This Court observed this question in

the following manner:

a. Justice Sawant observed that it would be open to the President to only

suspend the political executive and the legislature of the State and not

dissolve them. This interpretation, it was held, is consistent with a

reading of Article 356(1)(c) which states that incidental and

consequential provisions to give effect to the objective of the

Proclamation shall be made. It was further observed that it would be

permissible for the President to assume some of the functions of the

Government without suspending or removing them:

“108. […] To appreciate the discussion on point, it is necessary to

realise that the removal of Government and the dissolution of

Assembly are effected by the President, if he exercises powers of

the Governor under Article 164(1) and 174(2)(b) respectively under

sub-clause (a) of Article 356(1), though that is neither necessary nor

obligatory while issuing the Proclamation. In other words, the

removal of the Ministry or the dissolution of the Legislative Assembly

is not an automatic consequence of the issuance of the

Proclamation. The exercise of the powers under sub-clauses (a), (b)

and (c) of Article 356(1) may also co-exist with the mere suspension

of the political executive and the Legislature of the State. Sub-

clause (c) of Article 356(1) makes it clear. It speaks of incidental

and consequential provisions to give effect to the objects of

the Proclamation including suspension in whole or part of the

operation of any provision of the Constitution relating to

anybody or authority in the State. […] Legally, therefore, it is

permissible under Article 356(1), firstly, only to suspend the political

executive or anybody or authority of the State and also the

Legislature of the State and not to remove or dissolve them.

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Secondly, it is also permissible for the President to assume only

some of the functions of the political executive or of anybody

or authority of the State other than the Legislature while neither

suspending nor removing them.”

(emphasis supplied)

b. Justice Reddy while answering the above issue agreed with the

observations of Justice Sawant to the extent that dissolution of the

Legislative Assembly is not an automatic consequence. The learned

Judge observed that the President should not dissolve the legislature of

the State merely because he has the power to do so. The power, in his

opinion, must not be exercised invariably but only after taking into

consideration all the relevant facts and circumstances:

“288. […] The existence of power does not mean that dissolution of

Legislative Assembly should either be treated as obligatory or

should invariably be ordered whenever a Government of the State

is dismissed. It should be a matter for the President to consider,

taking into consideration all the relevant facts and circumstances,

whether the Legislative Assembly should also be dissolved or not. If

he thinks that it should be so dissolved, it would be appropriate,

indeed highly desirable, that he states the reasons for such

extraordinary step in the order itself.”

However, Justice Reddy held that it would not be open to the President to

exercise some of the powers exercised by the Government without

dismissing the Government because: first, the President can only issue a

Proclamation under Article 356(1) when the constitutional machinery as a

whole (and not one or two functions) fails in the State; and second, that would

introduce the concept of two Governments operating in the same sphere. The

relevant observations are extracted below:

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“293. It was suggested by Shri Ram Jethmalani that the President

can “assume all or any of the functions” of the State Government

without dismissing the Government. Emphasis is laid upon the

words “all or any” in sub-clause (1). In particular, he submitted,

where the State Government is found remiss in performing one or

some of the functions, that or those functions of the State

Government can be assumed by the President with a view to

remedy the situation. After rectifying the situation, the counsel

submitted, the President will give those functions back to the State

Government and that in such a situation there would be no occasion

or necessity for dismissing the State Government. The learned

counsel gave the analogy of a motor car — if one or a few of the

parts of a car malfunction or cease to function, one need not throw

away the car. That or those particular parts can be replaced or

rectified and the car would function normally again. It is difficult to

agree with the said interpretation. The power under Article 356(1)

can be exercised only where the President is satisfied that “the

government of the State cannot be carried on in accordance with

the provisions of the Constitution”. The title to the article “failure of

constitutional machinery in the States” also throws light upon the

nature of the situation contemplated by it. It means a situation where

the government of the State, — and not one or a few functions of

the Government — cannot be carried on in accordance with the

Constitution. The inability or unfitness aforesaid may arise

either on account of the non-performance or malperformance

of one or more functions of the Government or on account of

abuse or misuse of any of the powers, duties and obligations

of the Government. A Proclamation under Article 356(1)

necessarily contemplates the removal of the Government of the

State since it is found unable or unfit to carry on the

Government of the State in accordance with the provisions of

the Constitution. In our considered opinion, it is not possible to give

effect to the argument of Shri Ram Jethmalani. Acceptance of

such an argument would introduce the concept of two

Governments in the same sphere — the Central Government

exercising one or some of the powers of the State Government

and the State Government performing the rest. Apart from its

novelty, such a situation, in our opinion, does not promote the object

underlying Article 356 nor is it practicable.”

(emphasis supplied)

191. Both Justice Sawant and Justice Reddy held that when a Proclamation is

issued, the dissolution of the Legislative Assembly of the State is not an

automatic consequence and whether the assembly must be suspended or

dissolved must depend on the circumstances. However, they disagreed on

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the issue of whether the removal of the Government is a necessary

consequence of the exercise of power under Article 356. Justice Sawant held

that it is not a necessary consequence. Justice Reddy held that it is a

necessary consequence because otherwise it would lead to simultaneous

governance by both the Union and the State Government in the same sphere.

We agree with the view of Justice Reddy. The meaning of the phrase ‘all or

any functions of the Government of the State” cannot be stretched to mean

that the Union Government exercises some powers of the state’s political

executive while the remaining powers vest with the State Government. The

suspension of the State Government is a necessary consequence of the

exercise of the power under Article 356.

192. A Proclamation issued under Article 356 impacts federal principles on two

levels. At the first level, the federal nature of States is diluted because the

Union is empowered to take over the executive and legislative powers of the

State. During the operation of the Proclamation, the State loses its autonomy

which is a core characteristic of a federal State. At the second level, a

Proclamation under Article 356 can be issued by the President on the aid and

advice of the Council of Ministers without the approval of Parliament. The

Proclamation has a minimum tenure of two months which is extended upon a

resolution passed by Parliament approving the Proclamation. Though the

approval of the Proclamation by Parliament affirms the principle of

parliamentary democracy, it does not restore the principle of federalism. The

majority in SR Bommai (supra) was conscious of the impact of the

Proclamation on federal principles. This is evident from the observations of

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Justice Reddy that only those steps which are necessary for achieving the

objective of the Proclamation must be taken.

193. The next issue that the Court addressed was whether the extent of power

exercised by the President is justiciable. The petitioners in SR Bommai

(supra) argued that the measures which would be needed to remedy the

situation would vary depending on the nature of the situation or the degree of

failure of the constitutional machinery. It was argued by the petitioners that it

would be a “disproportionate and unreasonable exercise of power” if the

President does not resort to different remedies in different situations. The

submission is best reflected in the following extract:

“108. […] A strong contention was raised that situations of the failure

of the constitutional machinery may be varied in nature and extent,

and hence measures to remedy the situations may differ both in kind

and degree. It would be a disproportionate and unreasonable

exercise of power if the removal of Government or dissolution of the

Assembly is ordered when what the situation required, was for

example only assumption of some functions or powers of the

Government of the State or of anybody or authority in the State

under Article 356(1)(a). The excessive use of power also amounts

to illegal, irrational and mala fide exercise of power. Hence, it is

urged that the doctrine of proportionality is relevant in this context

and has to be applied in such circumstances.”

194. The issue of whether the extent of power used by the President is justified in

a particular situation is a question which in Justice Sawant’s opinion “would

remain debatable and beyond judicially discoverable and manageable

standards unless the exercise of the excessive power is so palpably irrational

or mala fide as to invite judicial intervention”. Applying a more stringent

standard would, in his opinion, lead to the Court adjudicating the comparative

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merits of one measure over the other which would lead to it entering the

‘political-thicket’:

“108. […] Hence it is possible for the President to use only some of

the requisite powers vested in him under Article 356(1) to meet the

situation in question. He does not have to use all the powers to meet

all the situations whatever the kind and degree of the failure of the

constitutional machinery in the State. To that extent, the contention

is indeed valid. However, whether in a particular situation the extent

of powers used is proper and justifiable is a question which would

remain debatable and beyond judicially discoverable and

manageable standards unless the exercise of the excessive power

is so palpably irrational or mala fide as to invite judicial intervention.

In fact, once the issuance of the Proclamation is held valid, the

scrutiny of the kind and degree of power used under the

Proclamation, falls in a narrower compass. There is every risk and

fear of the court undertaking upon itself the task of evaluating with

fine scales and through its own lenses the comparative merits of one

rather than the other measure. The court will thus travel unwittingly

into the political arena and subject itself more readily to the charges

of encroaching upon policy-making. The “political thicket” objection

sticks more easily in such circumstances. Although, therefore, on

the language of Article 356(1), it is legal to hold that the President

may exercise only some of the powers given to him, in practice it

may not always be easy to demonstrate the excessive use of the

power.”

(emphasis supplied)

195. Justice Reddy observed that in exercise of the discretion, the President must

consider the advisability and necessity of the action:

“280. The use of the word ‘may’ indicates not only a discretion but

an obligation to consider the advisability and necessity of the action.

It also involves an obligation to consider which of the several steps

specified in sub-clauses (a), (b) and (c) should be taken and to what

extent? The dissolution of the Legislative Assembly – assuming that

it is permissible – is not a matter of course. It should be resorted to

only when it is necessary for achieving the purposes of the

Proclamation.

289. […] Once Parliament places its seal of approval on the

Proclamation, further steps as may be found necessary to achieve

the purposes of the Proclamation, i.e., dissolution of Legislative

Assembly, can be ordered. In other words, once Parliament

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approves the initial exercise of his power, i.e., his satisfaction that a

situation had arisen where the government of the State could not be

carried on in accordance with the Constitution the President can go

ahead and take further steps necessary for effectively achieving the

objects of the Proclamation. Until the approval, he can only keep the

Assembly under suspended animation but shall not dissolve it.”

(emphasis supplied)

196. A holistic reading of the decisions of Justice Sawant and Justice Reddy,

indicates that the actions by the President after issuing a Proclamation are

subject to judicial review. However, there were some variations in the

judgments of the learned Judges on the standard needed to be applied by the

Court to test the validity of exercise of power by the President after the

issuance of the Proclamation. Justice Sawant applied the standard of whether

the exercise of power was mala fide or palpably irrational. Justice Reddy

observed that the advisability and necessity of the action must be borne in

mind by the President.

d. Interpretation of Part XVIII

197. This Bench sitting in a combination of five judges is bound by the decision of

the majority on the issue of whether the exercise of power by the President

after the issuance of Proclamation is subject to judicial review. We consider

it appropriate, bearing in mind the principles which emerge from the decision

in SR Bommai (supra), to undertake a textual and purposive reading of Article

356 in particular and Part XVIII as a whole independently.

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I. Comparison of executive power held by the President under Articles

352 and 356

198. Part XVIII deals with two types of emergencies, national emergencies, and

the failure of constitutional machinery in a State. The invocation of a national

emergency under Article 352 and the invocation of President’s rule under

Article 356 represent exceptions to the ordinary operation of the Constitution

where, to address an urgent internal or external threat, the Constitution

temporarily delegates certain powers to the President and Parliament until the

threat abates and ordinary Constitutional governance is restored. The

invocation and operation of this exceptional power is itself subject to the

Constitution and thus the rule of law. In the case of national emergencies,

Article 353, and in the case of President’s rule in a State, Article 356(1) clearly

delineate the legal effects of the emergency and outline the powers that can

be exercised by the Union Government and Parliament during such

emergencies. As a result, the delegation of powers to the President and

Parliament are also governed by the constitutional text of Part XVIII. The key

consequence of the Constitution itself providing for emergency powers is a

negation of the notion of any extra-legal or extra-constitutional power and the

reiteration of the supremacy of the rule of law. All governmental power, even

during an emergency, must be exercised subject to constitutional constraints.

The task of this Court is not to infer any implied extra-constitutional limitations

on the Union’s power during the invocation of President’s rule but rather to

interpret the relevant constitutional provisions and scheme to determine if the

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Constitution places any limits on the Union’s power during the invocation of

President’s rule are, and if so, what those limits are.

199. The powers under Articles 352 and 356 cannot be properly understood

without a reference to the implications of these powers on the principle of

federalism. Both national emergencies and the imposition of President’s rule

represent limited constitutionally sanctioned exceptions to the federal

principle which ordinarily dictates that the State Governments and

Legislatures are supreme within their sphere of operation. In the limited

circumstances set out in Articles 352 and 356, the Constitution itself

necessitates the temporary and limited delegation of power to the Union to

restore the ordinary operation of the Constitution.

200. Article 352 grants the President the power to issue a Proclamation of

emergency if he is satisfied that a grave emergency exists which threatens

the security of India or any part of the territory is threatened by war, external

aggression or armed rebellion. Similar to Article 356, the Proclamation is

required to be approved by both Houses of Parliament. Article 353 stipulates

when a national Emergency is in operation, the executive power of the Union

shall extend to directing the States on the manner of exercising their executive

power, and the power of Parliament to make laws shall extend to matters in

the State list. In addition, when a national Emergency is in force, Article 19 of

the Constitution,

193

and the right to move the court for the enforcement of

rights under Part III (except Articles 20 and 21) is suspended.

194

Thus, any

193

Article 358

194

Article 359

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law or executive action cannot be challenged in court on the ground that they

are violative of the provisions of Part III (other than Articles 20 and 21).

201. The executive and legislative power conferred on the Union upon the

issuance of a Proclamation under Article 356 is narrow when compared to the

power conferred when a Proclamation is issued under Article 352 for the

following reasons:

a. The ground(s) for issuing a Proclamation under Article 352 are much

graver when compared to the grounds for issuing a Proclamation under

Article 356. Article 352 covers threats to the security of the nation as a

whole or parts of it. The ground “internal aggression” in Article 352 was

substituted with “armed rebellion” by the Constitution (Forty-fourth

Amendment) Act 1978. The substitution indicates that a national

Emergency which has wide repercussions including the suspension of

fundamental rights can be declared only in grave situations. It is but a

natural corollary that the executive and the legislative power that the

Union would require to handle an emergency under Article 352 will be

different from the power that would be required to handle a situation of

a failure of constitutional machinery under Article 356;

b. Article 358 creates a hierarchy even amongst the grounds for declaring

a national Emergency. Article 19 can only be suspended when

Emergency is declared upon the territory being threatened by war or

external aggression. The provision specifically excludes the ground of

armed rebellion. The exclusion of the ground of armed rebellion from the

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purview of Article 358 indicates that the suspension of Article 19 is only

necessary when national Emergency is declared on graver grounds.

This also supports the inference that we have made above that the

scope of executive and legislative power exercised by the Union relate

to the ground for which emergency powers are invoked; and

c. When a national Emergency is declared, the executive power of the

Union shall extend to giving directions to the State and Parliament to

make laws on any subject notwithstanding that it is beyond the scope of

its legislative powers.

195

Article 252 expressly recognises this principle.

The provision states that Parliament, when a Proclamation of

Emergency is in operation, shall have the power to make laws for the

whole or any part of the territory of India even on matters enumerated in

List II of the Seventh Schedule. However, when a Proclamation under

Article 356 is issued, the President may assume or declare powers

mentioned in sub-clauses (a), (b), and (c) of Article 356(1). Thus, while

the powers mentioned in Article 353 are a natural consequence to

declaring a National Emergency, the powers mentioned in sub-clauses

(a), (b), and (c) of Article 356(1) do not automatically flow from the

exercise of power under Article 356. Rather, the President on application

of mind must decide the scope of exercise of powers.

195

Article 353

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II. Interpretation of Article 356

202. Article 356 stipulates that when the President is satisfied that a situation has

arisen in which the government of the State cannot be carried out in

accordance with the provisions of the Constitution, the President may by

Proclamation:

a. Assume to himself “all or any” of the functions of the Government of the

State, and “all or any” of the powers vested in or exercisable by the

Governor or any authority in the State other than the Legislature of the

State;

b. Declare that the powers of the Legislature of the State shall be

exercisable by or under the authority of Parliament; and

c. Make such incidental or consequential provisions as appear to the

President to be necessary or desirable for giving effect to the objects

of the Proclamation. This includes the power to suspend in whole or in

part any of the provisions of this Constitution relating to any body or

authority in the State.

203. Article 356, indicates that:

a. The powers stipulated in clauses (a), (b), and (c) of Article 356(1) are

not automatically invoked when a Proclamation is issued under Article

356. The Proclamation by the President must stipulate the scope of the

powers which will be exercised by the Union. This is evident from Article

356(1) which states that the President may by a Proclamation assume

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or declare the powers stipulated in clauses (a), (b), and (c) of Article

356(1);

b. The suspension of the State Government is a necessary consequence

of issuing a Proclamation under Article 356. The President while issuing

a Proclamation under Article 356 may exercise all or any of the

functions of the State Government and the powers of the Governor. The

President exercises the powers of the Governor which he holds as a

constitutional head and the functions of the State Government as a

political executive which he will exercise on the aid and advice of the

Union Council of Ministers. However, Article 356(1)(a) does not opt for

an all or none formula. The phrase “all or any” does not indicate that the

Union Government can exercise a part of the functions of the State

Government and the State Government can exercise the remaining

because the suspension of the State Government is an automatic

consequence of the Proclamation under Article 356. It rather indicates

that the scope of power exercised by the Union Government must

depend on the circumstances for issuing the Proclamation;

c. The President in exercise of the powers of the Governor may either

dissolve the Legislative Assembly of the State or direct that the

Assembly shall be in suspended animation. The President may exercise

the power under Article 356(1)(b) to confer the State’s legislative powers

on Parliament. The power under Article 356(1)(b) is independent of the

power under Article 356(1)(a);

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d. By virtue of Article 356(1)(c), the President has the power to make such

incidental and consequential provisions as are necessary or desirable to

give effect to the objects of the Proclamation which also includes the

power to suspend provisions of Constitution relating to any body or

authority in the State. However, the President can neither exercise the

powers vested in the High Court nor suspend provisions related to the

High Court. Three features of Article 356(1)(c) must be noted to

understand the purport of the provision. First, unlike clauses (a) and (b)

which deal with specific powers, clause (c) is worded broadly. It

encapsulates the power to make “incidental and consequential

provisions” to give effect to the object of the Proclamation. The phrase

“incidental and consequential” qualifies the latter part of Article 356(1)(c),

that is, “for giving effect to the objects of the Proclamation”. Second, the

power prescribed in Clause (c) encapsulates the power of the President

to suspend a part of the Constitution related to a body but is not limited

to it. Third, the President’s power to suspend or take over the powers of

“any authority” does not extend to the powers of the High Court; and

e. Clauses (a), (b), and (c) of Article 356(1) grant the President

independent powers. However, the power provided under Clause (c) is

broad enough to encapsulate the power of the President to assume

functions under clause (a) and declare under (b) that the powers of the

Legislature of the State shall be exercisable by Parliament.

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204. The principle underlying Article 356(1)(c) is that the exercise of power by the

President must be “desirable or necessary” to give effect to the objects of the

Proclamation. The phrases ‘necessary’ and ‘desirable’ in Article 356(1)(c)

capture differing standards of relationship with the object. While ‘necessary’

encapsulates the meaning of that which is inevitable or unavoidable, thereby,

introducing a stringent standard, the phrase ‘desirable’ encapsulates the

meaning of possible or suitable, providing a broader standard. The

commonality in both the “necessity” and “desirability” standards is that the

exercise of power must have a reasonable nexus with the object of the

Proclamation. Thus, the principle which runs through Article 356(1)(c) and

which also guides the exercise of power under Article 356(1)(a) is that the

exercise of power must have a reasonable nexus with the object of the

Proclamation.

205. The Sarkaria Commission identified four situations where the exercise of

power under Article 356 might be justified which include: (a) political crisis

arising from the inability of any party or coalition of parties to form a workable

majority; (b) internal subversion resulting from an effort of a State government

to undermine responsible government; (c) physical breakdown following an

inability to respond to internal disturbance; and (d) non-compliance with the

Union, for example by refusing to follow the directions during war. Though the

objective in each of the above situations is to restore the constitutional

machinery in the State, the specific object of issuing the Proclamation differs.

While applying the standard identified in the preceding paragraph, this Court

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must consider the validity of the exercise of power against the specific object

or purpose for which the Proclamation under Article 356 was issued.

206. Actions which are taken during the subsistence of a Proclamation must bear

a proximate relationship with the need to discharge the exigencies of

governance during the period over which the Proclamation continues to

remain in force in the state. The exercise of the power under Article 356 is

necessitated by the failure of the constitutional machinery in the state. The

ultimate object and purpose of the constitutional arrangement envisaged in

the article is to restore the functioning of the constitutional machinery in the

state. The tenure of the Proclamation is limited in terms of time so that the

federal constitutional mechanism is eventually restored. Hence, legislative

and executive action must be geared towards ensuring that the required tasks

of governance are carried out during the tenure of the Proclamation.

Legislative and executive action has to bear a proximate relationship to the

object and purpose underlying the suspension of the constitutional machinery

in the state.

207. While the actions taken after the imposition of President’s rule are subject to

judicial review on the grounds indicated above, the scope of review will

nonetheless be limited. It will be too stringent an approach to suggest that

every action of the President and Parliament must be necessary to further the

objects of the proclamation. As Justice Sawant observed in SR Bommai

(supra), when scrutinising the actions taken after the imposition of President’s

rule, “there is every risk and fear of the court undertaking upon itself the task

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of evaluating with fine scales and through its own lens the comparative merit

of one rather than the other measure.”

196

During the imposition of President’s

rule, there may be hundreds, if not thousands of decisions that need to be

taken by the President and Parliament on behalf of the State Government to

ensure the day-to-day administration of the State continues and the impact of

President’s rule on the daily life of citizens is reduced. If every action taken by

the President and Parliament on behalf of a State was open to challenge, this

would effectively bring to the Court every person who disagreed with an action

taken during President’s rule. Such an approach would be contrary to the

express text of Articles 356(1)(a), 356(1)(b), and 356(1)(c) which entrusts the

governance of the State with the Union Executive and Parliament during the

period of President’s rule. There is another reason why the level of judicial

oversight over the actions taken during the imposition of President’s rule may

not be as strict as suggested by the Petitioners. Most actions taken by the

President for the interim governance of the State can be reversed by the State

Government when it returns to power. Any orders passed, appointments

made, decisions taken by the President can subsequently be rescinded or

reversed by the State Government upon a return to normalcy. Similarly, even

if Parliament were to enact legislation on behalf of the State Legislature, such

legislation could subsequently be repealed by the State Legislature upon the

Proclamation under Article 356 ceasing to operate. Thus, the political process

can correct itself and any differences that have arisen between the democratic

will of the people exercised through their elected representatives in the State,

196

S.R. Bommai v. Union of India 1994 (3) SCC 1 [108].

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and the decisions taken by the President and Parliament, can be ironed out

upon a return to normalcy. For these reasons, we do not believe that the Court

ought to sit in appeal over every decision taken by the President during the

imposition of Article 356.

208. When a Proclamation under Article 356 is in force, there are innumerable

decisions which are taken by the Union Government on behalf of the State

Government for the purpose of day-to-day administration. Every decision and

action taken by the Union Executive on behalf of the State is not subject to

challenge. Opening up challenge to every decision would lead to chaos and

uncertainty. It would in effect put the administration in the State at a standstill.

This Court would enter into the question of whether it was a valid exercise of

power only when the petitioner makes a prima facie case that exercise of

power is mala fide or extraneous. After the petitioner makes a prima facie

case, the onus shifts to the Union to justify that the exercise of power had a

reasonable nexus with the object of the Proclamation.

III. The argument of ‘irrevocability’: Interpreting Article 357(2) and Krishna

Kumar Singh

209. The petitioners submitted that the power under Article 356 does not extend

towards making fundamental, permanent and irrevocable changes, which an

eventually reconstituted elected assembly and government would be

constitutionally unable to reverse. According to the submission, the power

under Article 356 must be limited to restorative actions, alongside directions

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or orders that are necessary for the purpose of daily administration. To

buttress this point, reference was made to Article 357(2) by which any law

made in exercise of the power of the Legislature of the State (which

Parliament would not have otherwise had the competent to enact) shall not

cease to operate until altered, repealed or amended by a competent

Legislature which is the Legislative Assembly of the State. It was argued that

if irreversible changes are made then the Legislative Assembly of the State

would be unable to undo or alter the changes in terms of Article 357(2).

210. Article 357(1)(a) stipulates that it shall be competent for Parliament to confer

on the President the ‘power to make laws’ as well as the power to delegate

this law-making power to any other authority. Before the Constitution (Forty-

second Amendment) Act 1976, the text of Article 357(2) stated that any law

made by Parliament or the authority authorised by it which the authority would

not have had the competence to enact but for the Proclamation under Article

356, shall to the extent of incompetency cease to have effect within one year

from the Proclamation ceasing to exist, unless the law is repealed, modified

or re-enacted by the Legislative Assembly of that State before that period.

The provision also expressly saved the things done before the expiry of one

year. However, after the Constitution (Forty-second Amendment) Act 1976,

Article 357(2) now stipulates that any such law made by Parliament or by the

authority delegated with the power shall continue to be in force even after the

Proclamation has ceased to operate until such law is repealed, altered or

amended. While before the amendment, the law to the extent of

incompetency would automatically cease to exist after a buffer period, an

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express repeal by the competent legislature is required for the law to cease

to exist after the amendment.

211. The impact of the amendment to Article 357(2) is two-fold: one, Article 357(2)

is an enabling provision where in spite of incompetence, the law is valid until

it is altered or repealed by the State legislature. Before the amendment, an

affirmative act from the State legislature after discussion was necessary for

the law to continue to be in force. After the amendment, an affirmative act of

approval is not required from the State legislature but it is open to it to repeal

or modify the law. Two, Article 357(2) before the amendment contained a

provision saving the things done before the expiration of the said period. This

provision was necessary because the law would cease to operate after the

buffer period and hence, a doubt could well arise about actions taken during

the operation of the law. The savings clause has been deleted after the

amendment since a law enacted during the term of the Proclamation would

continue in force even after the Proclamation has ceased to exist until it is

expressly repealed. The repealing statute would in such a case make

provisions for actions taken during the subsistence of the legislation. Article

367(1) also applies the provisions of the General Clauses Act, 1897 to the

interpretation of the Constitution.

212. A reading of Article 357(2) indicates that the principle of “irrevocability” cannot

be derived from the provision for the following reasons:

a. Article 356 by vesting the President with the power to assume the

functions of the State executive and declare that Parliament shall

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exercise the power of the State legislature enables the President and

Parliament to exercise functions which it is otherwise incompetent to.

Article 357 states that laws which Parliament is otherwise incompetent

to enact shall be valid even after the Proclamation ceases to be in force

until the State legislature repeals or modifies such laws. Thus, until such

a law is by an affirmative action either repealed or modified, such law

will be valid. The provision only confers the power to the restored State

legislature to restore the legislative position as it existed before the

Proclamation by repealing the enacted statute. The provision does not

place any limitations on the exercise of power under Article 356;

b. Article 357 only deals with the validity of laws after the Proclamation

ceases to exist and not the validity of executive actions taken by the

Union Government. Even if for the sake of argument, it is accepted that

the principle of irrevocability runs through Article 357(2), this principle

cannot be imported to limit the scope of the exercise of executive power

when the Proclamation is in force; and

c. Article 357(2) encapsulates the working of the Indian federal model by

providing that though the division of powers between the Union and the

State legislatures which is a core component of the federal structure is

capable of being altered during the subsistence of the proclamation

under Article 356, the federating units would have the power to reverse

or modify the changes which were brought by the Union during the

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subsistence of the Proclamation. In that sense, Article 357(2) enables

the restoration of federal principles.

213. The petitioners also relied on Krishna Kumar Singh (supra) to argue that

irrevocable actions cannot be taken after a Proclamation under Article 356 is

issued. In Krishna Kumar Singh (supra), one of the issues before this Court

was whether the legal effects or consequences of an Ordinance stand

obliterated upon the lapsing of an Ordinance or upon the Legislative

Assembly passing a resolution disapproving the Ordinance. Constitution

Benches of this Court in Bhupendra Kumar Bose v. State of Orissa

197

and

T Venkata Reddy v. State of Andhra Pradesh

198

had held that the rights

created by an Ordinance have an enduring effect even after the Ordinance

ceases to exist. The premise of the decision was that the effects of an

Ordinance must be assessed on the basis of the same yardstick that applies

to temporary enactments. One of us (Justice DY Chandrachud as he then

was) writing for the majority held that there is a fundamental fallacy in

equating an Ordinance with a temporary enactment because an Ordinance,

though deemed to be a law in view of the deeming fiction in Article 213 comes

into force through an executive action. This Court held that when an

Ordinance ceases to exist, the rights and other consequences created by the

Ordinance also cease to exist for three reasons: first, Article 213 unlike other

provisions of the Constitution (such as Articles 358(1) and 359(1)) does not

have a savings clause which saves the actions or things done when the

197

AIR 1962 SC 945

198

(1985) 3 SCC 198

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Ordinance was in force; second, the theory of enduring rights attributes a

degree of permanence to the power to promulgate Ordinances which

derogates from the principle of parliamentary supremacy; and third, in SR

Bommai (supra), this Court held that irrevocable actions cannot be taken until

the Proclamation issued under Article 356 is approved by Parliament. This

principle was held to be applicable to Ordinance making power as well.

214. A subsequent issue which arose before this Court in Krishna Kumar Singh

(supra) was on the question of relief. That is, what relief could the Court grant

where restoration of status quo ante was not possible. This Court held that

while deciding on the relief, this Court must decide if “undoing what had been

done under the Ordinance would manifestly be contrary to public interest”.

This Court further observed that impracticality cannot be raised to an

independent status but it can be one of the aspects which the Court must

consider while assessing public interest.

215. At a preliminary level, the issue in Krishna Kumar Singh (supra) was

whether the consequence of an Ordinance can subsist even after the

Ordinance ceases to exist or whether the rights created by an Ordinance

cease to exist along with the Ordinance. An Ordinance ceases to exist on the

expiry of six weeks from the reassembly of the Legislature or when before the

said period, a resolution disapproving the Ordinance is passed. The

provisions dealing with Ordinance making power (Article 123 and 213) do not

contain a clause saving actions taken under an Ordinance after it ceases to

exist. As discussed above, Article 356 is placed differently by virtue of Article

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357(2), whereby laws enacted by Parliament in exercise of the State

legislature’s power do not cease to exist merely on the expiry of the

Proclamation, and thus there was no necessity for a savings clause.

216. Finally, this Court by following the line of approach taken in SR Bommai

(supra) interpreted the phrase ‘cease to exist’ in Article 213 broadly because

the narrow interpretation would lead to the abrogation of the principle of

parliamentary supremacy where the effects of executive action would have a

permanent effect without any parliamentary oversight. To recall, in SR

Bommai (supra), this Court held that “irreversible” changes cannot be made

before the Proclamation under Article 356 is approved by both Houses of

Parliament under Article 356(3). Otherwise, the purpose of the provision

which is to place a Parliamentary check on the exercise of power by the

executive would become nugatory. In this context, Justice Jeevan Reddy

made the following observations:

“290. […] The expression “approval” has an intrinsic meaning which

cannot be ignored. Disapproval or non-approval means that the

Houses of Parliament are saying that the President's action was not

justified or warranted and that it shall no longer continue. In such a

case, the Proclamation lapses, i.e., ceases to be in operation at the

end of two months — the necessary consequence of which is the

status quo ante revives. To say that notwithstanding the disapproval

or non-approval, the status quo ante does not revive is to rob the

concept of approval of its content and meaning. Such a view renders

the check provided by clause (3) ineffective and of no significance

whatsoever. The Executive would be telling Parliament : “I have

dismissed the Government. Now, whether you approve or

disapprove is of no consequence because the Government in no

event can be revived. The deed is done. You better approve it

because you have practically no choice.” We do not think that such

a course is consistent with the principle of parliamentary supremacy

and parliamentary control over the Executive, the basic premise of

parliamentary supremacy. It would indeed mean supremacy of the

Executive over Parliament.”

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217. This Court in SR Bommai (supra) distinguished between the exercise of

power before a Proclamation is approved by Parliament and after the

approval. The approval of the Proclamation by Parliament grants legislative

legitimacy to the executive action under Article 356. The argument of

democratic deficit fails after the Proclamation is approved by Parliament. For

the above reasons, the rejection of the enduring rights theory in Krishna

Kumar Singh (supra) cannot be transposed to the interpretation on the limits

on the exercise of power under Article 356. The interpretation of neither the

text of Articles 356 and 357 nor the decision of this Court in Krishna Kumar

Singh (supra) lead to the inference that power under Article 356 cannot be

exercised to create ‘irreversible’ consequences.

218. Any other interpretation would also lead to the Court testing the validity of

outcomes and not the exercise of power. Challenging the exercise of power

on the ground of irreversibility would open the way for challenging every day

administrative actions against which we have cautioned above. Hence, we

cannot accept the proposition which has been urged on behalf of the

Petitioners that the exercise of power by the President under Article 356 of

the Constitution can be challenged on the ground that it has given rise to

irreversible consequences.

IV. The distinction between legislative and constitutional functions of the

Legislature

219. Article 356(1)(a) states that the President may declare that the “powers of the

Legislature of the State” shall be exercised by or under the authority of

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Parliament. There are two competing interpretations to the phrase “powers of

the Legislature of the State”. It could be read expansively to include “all” the

powers of the State Legislature or narrowly to place limitations on the nature

of legislative power that can be exercised by Parliament. The petitioners term

it as the distinction between legislative and constituent power, or the law and

non-law powers of the State legislature. However, regardless of the manner

in which the distinction is drawn, the issue is whether all the powers of the

Legislature of the State (that is, both law-making and non-law making powers)

are vested in Parliament when the President issues a declaration in terms of

Article 356(1)(b).

220. In addition to the legislative powers granted to the States under List II of the

Seventh Schedule, the States have also been granted various non-law

making powers to ensure the voice of their electorates are well represented

at the constitutional plane. This is a recognition that even though Parliament

has representatives from the entire country, and the Rajya Sabha is elected

entirely by State Legislatures, the outlook of such a body is fundamentally

national. The actual polity of Parliament is the entire nation. The Constitution

recognises that this creates a risk that the interests of specific states may not

be adequately represented despite such States being particularly impacted.

For example, the power to abolish or create a Legislative Council in a State

is conferred on Parliament under Article 169 as such a law has national

consequences, such as for the election of the President. However, it is also a

power that would directly impact the constitutional governance within the

concerned State. Thus, despite Parliament and the Rajya Sabha possessing

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Members from the concerned State, the Constitution provides an extra layer

of federal representation to the State. Article 169 states that no law for the

creation of a Legislative Council in a State can be passed by Parliament

without the Legislative Assembly of the State first passing a resolution by a

2/3rds majority. This ensures that the constitutional governance of the State

cannot be overridden by national considerations.

221. A few of the constitutional (or non-law making) powers held by the Legislature

of the State are: (a) the power of the State legislatures to ratify an

amendment

199

; (b) election of the President by elected members of the

Legislative Assemblies of the State

200

; (c) election of the representatives of

each State to the Rajya Sabha by the elected members of the Legislative

Assembly of the State

201

; and (e) the Houses of Legislatures in two or more

States passing a resolution to the effect that Parliament must legislate upon

certain matters in those states, matters it otherwise does not have the power

to legislate upon

202

222. As we have noted above, Article 356(1)(b) does not make a distinction

between legislative and constitutional powers. Clause (b) of Article 356(1)

unlike clause (a) of Article 356(1) also does not make a distinction between

“all or any” powers. Clause (b) states that the President shall by a

Proclamation make a declaration that the powers of the Legislature of the

State shall be exercisable by or under the authority of Parliament.

199

First proviso to Article 368(2)

200

Article 54

201

Article 80(4)

202

Article 252

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223. Article 357 provides the scope of the power which can be exercised by

Parliament upon a declaration being made under Article 356(1)(b). Article

357(1) is extracted below:

“357. Exercise of legislative powers under Proclamation issued

under Article 356

(1) Where by a Proclamation issued under clause ( 1 ) of Article 356,

it has been declared that the powers of the Legislature of the State

shall be exercisable by or under the authority of Parliament, it shall

be competent:

(a) for Parliament to confer on the President the power of the

Legislature of the State to make laws, and to authorise the President

to delegate, subject to such conditions as he may think fit to impose,

the power so conferred to any other authority to be specified by him

in that behalf;

(b) for Parliament, or for the President or other authority in whom

such power to make laws is vested under sub clause (a), to make

laws conferring powers and imposing duties, or authorising the

conferring of powers and the imposition of duties, upon the Union or

officers and authorities thereof;

not in session expenditure from the Consolidated Fund of the State

pending the sanction of such expenditure by Parliament.”

224. Article 357, as indicated in the marginal note, deals with the exercise of

legislative powers upon the issuance of a Proclamation under Article 356. The

provision states that upon a declaration being made under Article 356(1)(b),

it shall be competent:

a. For Parliament to confer law making powers on the President or

authorise the President to delegate the power to any other authority;

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b. For Parliament to make laws conferring powers and duties upon the

Union or officers and authorities; and

c. For the President to authorise expenditure from the Consolidated Fund

of the State when the House of People is not in session and pending

sanction of such expenditure by Parliament.

225. Article 357(1) states that it shall be competent for Parliament to exercise the

powers stipulated in the clauses. Article 357(1) confers the law-making body

with powers which are otherwise not available to it. By virtue of Article

357(1)(a), Parliament can delegate the law-making function to the President

and authorise the President to delegate the power to any other authority. This

is a unique power granted by the provision which is an exception to the

executive and legislative divide between Parliament and the executive. Under

Article 357(1)(b), Parliament can (acting as the Legislative Assembly of the

State) enact laws conferring powers and imposing duties upon the Union. By

Article 357(1)(c), the President is granted the power to authorise expenditure

in deviation from the procedure prescribed in Article 204 by which expenditure

from the Consolidated fund of the State can only be authorised by a law. The

phrase “competence” in Article 357(1) has an expansive and not a restrictive

scope.

226. Article 357(1) dwells on the competence of Parliament and the President from

a constitutional perspective, when under a Proclamation under Article 356,

the “powers of the legislature of the State shall be exercisable by or under the

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authority of Parliament”. The expression “powers of the legislature of the

state” in Article 356(1)(b) and in the prefatory part of Article 357(1) is broader

in content than “the power of the legislature of the state to make laws” in

Article 357(1)(a) and 357(1)(b). The latter is the law-making power of the state

legislature while the former includes but is not confined to the power to

legislate. Clause (a) of Article 357(1) deals with “the power of the legislature

of the state to make laws”. Clause (b) refers to the same subject when it

speaks of “the authority in whom such power to make laws is vested under

sub-clause (a)”. Article 357 uses the expression “competent” initially, in the

prefatory part, to indicate certain actions which flow from the declaration

under Article 356 that the power of the state legislature shall be exercisable

by or under the authority of Parliament. Clause 2 also uses the expression

“competent” to indicate that a law made by Parliament or the President while

exercising the power of the legislature of the state during a Proclamation

under Article 356 shall continue in force after the Proclamation has ceased to

operate even though such a law would not have been competent in the

absence of a Proclamation. The state legislature can thereafter modify or

repeal the law. In Clause 1 the expression “competent” is used to signify an

empowerment; an entrustment of power. In Clause 2, the same expression is

used to mean the constitutional capacity to make the law.

227. Article 356(1)(b) indicates that on a Proclamation being issued, the President

may declare that the powers of the legislature of the state shall be exercisable

by or under the authority of Parliament. Article 357 provides for what is

subsumed, when by a declaration under Article 356, the powers of the

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legislature of the State are exercisable by or under the authority of Parliament.

The text of the prefatory part of Article 357 is similar to the language of Article

356(1)(b). However, the prefatory part of article 357 refers to the entirety of

Clause 1 of Article 356. The ambit of Article 356(1)(b) is clearly broader than

the canvas of Article 357(1). Article 356(1)(b) would comprehend both law

making and non-law making powers when it uses the expression “powers

exercisable by the legislature of the state”. Clause (a) of Article 357(1) – and

Clause (b) which refers to Clause (a) – on the other hand refer to the power

of the legislature of the state to make laws. This is the legislative power

referable to Articles 245 and 246. It would be difficult to read Article 357(1) as

restricting the ambit of the conferment of power under Article 356(1)(b). The

basic purpose of Article 357 is to ensure that while exercising the powers of

the legislature of the State pursuant to a declaration under Article 356(1),

Parliament, or as the case may be, the President are not impeded by an

absence of competence which would have impeded the exercise of a similar

power in the absence of a Proclamation under Article 356. The description in

Article 357 of what could lie within the competence of Parliament or the

President during a Proclamation which vests the powers of the State

Legislature in Parliament cannot restrict the powers available under Article

356. Article 357 does not contain a non-obstante provision which overrides

Article 356. Article 357 cannot be read to exclude everything apart from sub-

clauses (a), (b) and (c) of Clause 1 from the ambit of Article 356. To interpret

Article 357(1) as a restriction on Article 356(1)(b) would be to read in a

restriction which the plain terms of the Constitution do not provide. To put it

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differently, acceptance of a contrary interpretation would require the court to

read the expression “only” to precede the expression “competent” in the

prefatory part of Article 357. This will amount to judicial rewriting of the text of

the Constitution which is plainly impermissible.

228. A seven-Judge Bench of this Court in In re Presidential Poll

203

held that the

dissolution of the Legislative Assembly is not a ground for preventing the

holding of the election on the expiry of the term of the President. So,

constitutional functions are not put on a hold when the Legislative Assembly

of a State is dissolved. We are conscious that the constitutional powers of the

State legislature are crucial facets of the principle of federalism. These

provisions create a space for the States to be seen and heard and for the

States to have an equal say in the democratic functioning of the Nation. It is

not only the letter of the law which makes a Constitution federal but also the

exercise of such power. Interpreting the phrase “powers of the legislature” to

allow Parliament to exercise all constitutional powers which are vested in the

Legislative Assembly of the State would reduce the power of the State.

However, the Constitution recognises such reduction of federal power when

the Proclamation under Article 356 is in force. As we have held above, the

exercise of power after a Proclamation under Article 356 is issued is subject

to judicial review. An immunity from judicial scrutiny does not attach to the

exercise of Constitutional powers of the Legislature of the State. The Court

while judicially reviewing the exercise of power can determine if the exercise

203

(1974) 2 SCC 33

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of the Constitutional power of the Legislature of the State has a reasonable

nexus with the object sought to be achieved by the Proclamation.

e. The standard to assess actions taken under Article 356 after the issuance

of Proclamation

229. In view of the discussion above, the following standard is laid down to assess

actions under Article 356 after the Proclamation has been issued:

a. The exercise of power by the President under Article 356 must have a

reasonable nexus to the object of the Proclamation;

b. The exercise of power by the President will not be rendered invalid

merely on the ground of ‘irreversibility’ of the actions;

c. The person challenging the exercise of power must prima facie establish

that it is a mala fide or extraneous exercise of power. After a prima facie

case is made, the onus shifts to the Union to justify that the exercise of

power had a reasonable nexus with object of the Proclamation; and

d. The exercise of power by the President for everyday administration of

the State is not ordinarily subject to judicial review.

iv. Article 370: a temporary provision?

a. The historical context to Article 370

230. In the section above, this Court has noted the historical context in which the

State of Jammu and Kashmir had acceded to the Dominion of India to

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ascertain whether the State held an element of sovereignty. In this section,

the historical context with respect to Jammu and Kashmir is referred to for the

purpose of identifying the reason for adopting Article 370. A reference to the

historical context in which Article 370 was included will aid this Court in

determining whether the provision is temporary or permanent in nature.

I. Accession of Jammu and Kashmir

231. The British Parliament enacted the Indian Independence Act 1947. In terms

of Section 1(1) of the Act, two independent Dominions – India and Pakistan

were to be established from 15 August 1947. Section 7(1)(b) stipulated that

following independence, the sovereignty of the British monarch over Indian

States would lapse and return to the Rulers of those States. Consequently,

as sovereign States, 562 Princely States had the choice to remain

independent or to accede to either of the two Dominions established by the

Act. Section 8 enunciated that as a transitional measure, the provisions of the

Government of India Act 1935 would continue to apply to the two Dominions

subject to conditions. In pursuance of the provisions of Section 9 of the Indian

Independence Act 1947, the Governor-General of India issued the India

(Provisional Constitution) Order 1947 which made certain provisions of the

Government of India Act 1935 applicable to India until other provisions were

made applicable by the Constituent Assembly. Section 6 of the Government

of India Act 1935 became applicable through the Order which dealt with the

accession of Princely States to India through the execution of IoA.

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232. Jammu and Kashmir had not executed a IoA when India had attained

independence. Soon after which on 27 September 1947, a letter was

addressed by Nehru to Sardar Patel noting that he had received many reports

of a dangerous and deteriorating situation in Kashmir. Nehru stated that with

the onset of the winter, Kashmir would be cut-off from the rest of India. Nehru

stated that “the Muslim League in the Punjab and the NWFP are making

preparations to enter Kashmir in considerable numbers”, stating further that:

“I understand that the Pakistan strategy is to infiltrate into Kashmir

now and to take some big action as soon as Kashmir is more or less

isolated because of the coming winter.”

233. The letter stated that once the State acceded to India, it would become difficult

for Pakistan to invade it officially or unofficially without coming into conflict

with the Indian Union. If, however, there was to be delay in accession,

Pakistan would go ahead without much fear of consequences “specially when

the winter isolates Kashmir”. Nehru concluded his letter stating:

“I would again add that time is [of] the essence of the business and

things must be done in a way so as to bring about the accession of

Kashmir to the Indian Union as rapidly as possible with the co-

operation of Sheikh Abdullah.”

234. On 26 October 1947, Maharaja Hari Singh addressed a communication to

Lord Mountbatten, the Governor-General noting that “a grave emergency has

arisen” in his State leading him to “request immediate assistance” of the

Government. The letter noted that the Maharaja had “wanted to take time to

decide to which Dominion” he should accede or whether it would be in the

best interest of both the Dominions as well as Jammu and Kashmir for the

State to “stand independent”. The Maharaja stated that while Pakistan had,

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responding to his request, entered into a Standstill Agreement with the State,

the Dominion of India desired further discussion which could not be arranged

by him in view of the grave developments which took place as elucidated in

his letter. The Pakistan government, he noted, “permitted steady and

increasing strangulation of supplies like food, salt and petrol” to Jammu and

Kashmir in spite of the Standstill Agreement. The letter of the Maharaja spoke

of the grave danger to the security and existence of Jammu and Kashmir

occasioned by the infiltration of soldiers in plain clothes who were threatening

to capture Srinagar. The letter contains a statement of the position which the

State of Jammu and Kashmir was confronted with, in the following extracts:

“Afridis, soldiers in plain clothes, and desperadoes with modern

weapons have been allowed to infliter into the State at first in

Poonch and then in Sialkot and finally in mass area adjoining

Hazara District on the Ramkot side. The result has been that the

limited number of troops at the disposal of the State had to be

dispersed and thus had to face the enemy at the several points

simultaneously, that it has become difficult to stop the wanton

destruction of life and property and looting. The Mohara power-

house which supplies the electric current to the whole of Srinagar

has been burnt. The number of women who have been kidnapped

and raped and makes my heart bleed. The wild forces thus let loose

on the State are marching on with the aim of capturing Srinagar, the

summer Capital of my Government, as first step to over running the

whole State.

The mass infiltration tribesman drawn from the distant areas of the

North-\Vest Frontier coming regularly in motor trucks using

Mansehra-Muzaffarabad Road and fully armed with up-to-date

weapons cannot possibly be done without the knowing of the

Provincial Government of the North-West Frontier Province and the

Government of Pakistan. In spite of repeated requests made by my

Government no attempt has been made to check these raiders or

stop them from coming to my State. The Pakistan Radio even put

out a story that a Provisional Government has been set up in

Kashmir.”

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235. The Maharaja sought help and recognised that India would be able to lend

assistance only if the State of Jammu and Kashmir acceded to India:

“I have accordingly decided to do so and I attach the Instrument of

Accession for acceptance by your Government. The other

alternative is to leave my State and my people to free-booters. On

this basis no civilized Government can exist or be maintained. The

alternative I will never allow to happen as long as I am Ruler of the

State and I have life to defend my country.”

236. The offer of accession noted that if the State of Jammu and Kashmir “has to

be saved, immediate assistance must be available at Srinagar”. The letter

proposed the setting up of an interim government with Sheikh Abdullah being

asked to carry out the responsibilities as Prime Minister “in this emergency”.

237. Maharaja Hari Singh signed the IoA on 26 October 1947. The Instrument was

accepted by the Governor-General on 27 October 1947. In his communication

dated 27 October 1947 to the Maharaja, the Governor-General noted that “in

the special circumstances mentioned by your Highness, my Government has

decided to accept the accession of Kashmir State to the Dominion of India”.

The letter of the Governor General also noted that the policy of their

Government was that in case of any State where the issue of accession is a

subject of dispute, “it is my Government’s wish” that the question of accession

“should be decided in accordance with the wishes of the people of the State.”

Thus, the letter noted that in the case of Jammu and Kashmir, the question of

the State’s accession must be settled with reference to the people of the

State:

“[…] my Government have decided to accept the accession of

Kashmir State to the Dominion of India. Consistently with their policy

that in the case of any State where the issue of accession has been

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165

the subject of dispute, the question of accession should be decided

in accordance with the wishes of the people of the State, it is my

Government’s wish that, as soon as law and order have been

restored in Kashmir and her soil cleared of the invader, the question

of the State’s accession should be settled by a reference to the

people.”

238. Shri Mehr Chand Mahajan (later a judge of the Supreme Court and Chief

Justice of India) had taken over as Prime Minister of Jammu and Kashmir on

15 October 1947. His Memoirs titled “Looking Back

204

” devote an entire

Chapter to the “Pak invasion of Kashmir”. Mehr Chand Mahajan provides a

detailed account of the events commencing from 23 October 1947. The

account can best be captured in his own words in the following extracts:

“… Meanwhile the tribesmen from the frontier using Pakistan lorries,

jeeps and other conveyances and armed with Pakistani weapons

had entered the State on 23 October through Muzaffarabad. These

tribesmen were themselves Pakistan nationals; as they advanced

they were joined by other Pakistani citizens. The rail had been

organised by an ex-officer of the Political Agency at Peshawar, at

the instance and with the connivance of the Pakistan government.

Transport, arms, ammunition and military officers were supplied by

the Pakistan Government. We had tried to blow the bridge that could

provide – and did provide – access to the tribesmen into Kashmir.

But as related earlier, this attempt had failed for want of dynamite in

the State.

Now they pushed on. At Domel the Muslim officers and soldiers of

the State forces who had been guarding this frontier under Col.

Narain Singh deserted and joined the raiders after killing their

commander in his officer at the Domel dak bungalow.

Flushed with arson, loot, and murder, the tribesmen now pushed on

the way to Srinagar. At Garhi, the Chief of the Dogra Army staff with

his small force tried to stop their advance. He held them up for

sometime but ultimately fell against enormously superior forces.

…

204

Har-Anand Publications Private Limited reprint 2023

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166

October 24

was the Dussehra Darbar Day on which every year the

Maharaja took the salute from the army and held a Darbar. A

discussion took place in the palace on the 23

night whether or not

the Darbar should be held in view of the situation that had arisen.

The Maharaja was of the opinion that the Darbar should not be held

as enough State forces for the ceremonial parade were not

available. All that had been left of the army in Srinagar was about

four companies of the cavalry. I advised otherwise, being of the

opinion that cancellation of the Darbar would unnecessarily create

panic in the town.

…

No sooner had we left the Darbar Hall and reached the Mirakadal

Bridge, electricity failed. The city was plunged into darkness. ….

I also rang up the power house at Mahoora where a chowkidar came

on the line and told me that a wounded captain of the army had

come on horseback saying “The raiders have come. Run away.”

This, he said, had created panic and most of the men of the power

house had fled from the place.

…

On 24

October, the Deputy Prime Minister left Srinagar for Delhi

carrying a letter of accession to India-from the Maharaja and a

personal letter to Pandit Jawaharlal Nehru and another to Sardar

Patel asking for military help in men, arms and ammunition. I also

wrote to both requesting them to save the State from Pakistan’s

unprovoked aggression.

…

After assuming office on 15

October, I had sent Col. Baldev Singh

Pathani and our military adviser, Col. Kashmir Singh, to Poonch and

Kotli to help our small military force there, and to inspire confidence

in the citizens. Col. Baldev Singh remained at Kotli to give heart to

the citizens at great personal risk while col. Kashmir Singh returned

to Srinagar to apprise the Maharaja about the military situation in

Poonch and in Kotli. After consulting the Officer commanding,

Srinagar Forces, the Governor of Srinagar and the Inspector

General of Police, we decided in the afternoon of 25

that the raiders

should be given a receding battle. Every effort was to be made to

secure that our depleted forces suffered as few casualties as

possible. An all-out effort was to be made to check the advance of

the raiders to the town of Srinagar.

…

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167

As we were groping for a way out, Mr V.P. Menon, Secretary of the

Ministry of States, arrived in Srinagar by plane. He came straight to

my residence to see me and told me that he had come there to take

me to New Delhi.

…

After His Highness left at 2 A.M. an officer came from the front and

informed me that the Dogra Chief of Staff had been wounded and

was lying on the road with six or seven bullets in his body. He had

ordered the rest of his troops to retreat to a position of vantage but

did not wish to leave the place where he lay. Though fatally

wounded, he was determined to give a fight as long as he was alive.

Next morning Mr. V. P. Menon and I flew to Delhi. We arrived at

Safdarjung airport at about 8 A. M. where a car was waiting. I

immediately drove to the Prime Minister’s House on Yourd Road.

The Prime Minister and Sardar Patel both were there and were

apprised of the situation that had arisen. In view of the advance of

the raiders towards the town of Baramula and Srinagar. I requested

immediate military aid on any terms. I said somewhat emphatically

that the town was taken by the tribesmen, India was strong enough

to re-take it. Its recapture, however, could not have undone the

damage that would have resulted. I, therefore, firmly but respectfully

insisted on the acceptance of my request for immediate military aid.

The Prime Minister observed that it was not easy on the spur of the

moment to send troops as such an operation required considerable

preparation and arrangement, the troops could not be moved

without due deliberation merely on my demand. I was, however,

adamant in my submission; the Prime Minister also was sticking to

his own view. As a last resort I said, “Give us the military force we

need. Take the accession and give whatever power you desire to

the popular party. The army must fly to save Srinagar this evening

or else I will go to Lahore and negotiate terms with Mr Jinnah.”

When I told the Prime Minister of India that I had orders to go to

Pakistan in case immediate military aid was not given he naturally

became upset and in an angry tone said, “Mahajan, go away.” I got

up and was about to leave the room when Sardar Patel detained me

by saying in my ear, “Of course, Mahajan, you are not going to

Pakistan.” Just then, a piece of paper was passed over the Prime

Minister, He read it and in a loud voice said, “Sheikh Sahib also says

the same thing.” It appeared that Sheikh Abdulla had been listening

to all this talk while sitting in one of the bedrooms adjoining the

drawing room where we were. He now strengthened my hands by

telling the Prime Minister that military help must be sent

immediately.

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…

At 12.45 p. m. Sardar Baldev Singh came and told me that a

decision had been taken to send two companies of Indian troops to

Srinagar. All the planes in India had been requisitioned for the

purpose. He also wanted me to give the commander of this force as

much information as I could about the situation in the State. Luckily

I had brought with me a plan which showed where the clash between

the raiders and the State forces had occurred, the deployment of the

raiders and distribution of the State forces.

…

The Cabinet meeting in the evening affirmed the decision of the

Defence Council to give military aid to the Maharaja to drive out the

tribesmen. Around dinner time, the Prime Minister sent a message

to me that with Mr. V. P. Menon, I should fly to Jammu to inform the

Maharaja of this decision and also to get his signature on certain

supplementary documents about the accession.”

239. In Chapter 19, titled Kashmir’s Accession to India, Mahajan notes that on 27

October 1947, he received a message that the Indian troops had landed at

Srinagar and “had gone into action”

205

. Mahajan notes that on 27 October

1947, he flew to Jammu with Mr V P Menon (the Secretary in the Ministry of

States). On their landing in Srinagar, the Indian troops had gone into battle

with the tribesmen. Mahajan recounts what happened thereafter:

“…After some discussion, formal documents were signed which Mr.

Menon took back to New Delhi, while I stayed at Jammu. This was

a narrow shave. After the failure of the Pak attempt to capture both

the Maharaja and myself at Bhimber, Mr Jinnah had got impatient.

He ordered his British Commander-in-Chief to move two brigades of

the Pak army into Kashmir on 27 October, one form Rawalpindi and

another from Sialkot. The Sialkot army was to march to Jammu, take

the city and make the Maharaja a prisoner. The Rawalpindi column

was to advance to Srinagar and capture the city, all this on the

excuse that the State should be saved the anarchy that the

tribesmen’s raid had produced. The Maharaja having acceded just

in time and the Indian Army being already in Kashmir, this could

have meant pitting Pakistan forces against those of India. Both the

dominions owing allegiance to the King and the armies of both being

205

Page 154

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under a Joint Defence Council, such a move, the Pak Commander-

in-Chief told Mr Jinnah was unthinkable. The King as the ruler of

Pakistan could not send his (Pak) armies against his own armies in

India. The British Commander-in-Chief therefore, refused to issue

the order and offered to resign. Mr Jinnah had to cancel his orders.”

240. Mahajan has stated in his Memoir that Prime Minister Nehru indicated three

conditions on which the Maharaja had been given the military help. According

to him:

“… Panditji write out briefly those terms. The first one was that His

Highness should accede to India with regard to three subjects:

defence, external affairs and transport. This he had already done.

The second was that the internal administration of the State should

be democratized and a new constitution be framed on the lines of

the model already set out for the State of Mysore. The third condition

was that Sheikh Abdulla should be taken in the administration and

made responsible for it along with the Prime Minister.”

241. Mahajan eventually states that :

“…The Indian forces suffered heavily in the first attack but after

reinforcements arrived they drove out the raiders from the

neighbourhood of Srinagar where they had infiltrated after looting

and destroying the town of Baramula.”

242. V P Menon provides a detailed account of the events preceding the accession

of Jammu and Kashmir to the Union of India in his book titled, “The Story of

the Integration of the Indian States”

206

. Menon’s account is illuminating on the

events which took place from 22 October 1947 and needs to be extracted in

the entirety:

“The all-out invasion of Kashmir started on 22 October 1947. The

main raiders' column, which had approximately two hundred to three

hundred lorries, and which consisted of frontier tribesmen estimated

at five thousand — Afridis, Wazirs, Mahsuds, Swathis, and soldiers

206

Orient Longmans (1961)

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of the Pakistan Army 'on leave'—led by some regular officers who

knew Kashmir well advanced from Abbottabad in the N.W.F.P.

along the Jhelum Valley Road. They captured Garhi and Domel

arrived at the gates of Muzaffarabad. The State battalion, consisting

of Muslims and Dogras stationed at Muzaffarabad, was commanded

by Lt.-Colonel Narain Singh. All the Muslims in the battalion

deserted; shot the Commanding Officer and his adjutant; joined the

raiders, and acted as advance-guard to the raiders' column. It may

be mentioned that only a few days before Lt.-Colonel Narain Singh

had been asked by the Maharajah whether he could rely on the

loyalty of the Muslim half of his battalion. He unhesitatingly

answered, 'More than on the Dogras'. He had been in command of

this battalion for some years.

The raiders then marched towards Baramula along the road leading

to Srinagar, their next destination being Uri. All the Muslims in the

State Forces had deserted and many had joined the raiders. When

Brigadier Rajinder Singh, the Chief of Staff of the State Forces,

heard of the desertion of the Muslim personnel and the advance of

the raiders, he gathered together approximately 150 men and

moved towards Uri. There he engaged the raiders for two days and

in the rearguard action destroyed the Uri bridge. The Brigadier

himself and all his men were cut to pieces in this action. But he and

his colleagues will live in history like the gallant Leonidas and his

300 men who held the Persian invaders at Thermopylae. It was but

appropriate that when the Maha Vir Chakra decoration was

instituted, the first award should have been given (posthumously) to

this heroic soldier.

The raiders continued to advance and on 24 October they captured

the Mahura Power House, which supplied electricity to Srinagar.

Srinagar was plunged in darkness. The raiders had announced that

they would reach Srinagar on 26 October in time for the Id

celebrations at the Srinagar mosque.

On the evening of 24 October the Government of India received a

desperate appeal for help from the Maharajah. They also received

from the Supreme Commander information regarding the raiders'

advance and probable intentions. On the morning of 25 October a

meeting of the Defence Committee was held, presided over by Lord

Mountbatten. This Committee considered the request of the

Maharajah for arms and ammunition as also for reinforcements of

troops. Lord Mountbatten emphasized that no precipitate action

should be taken until the Government of India had fuller information.

It was agreed that I should fly to Srinagar immediately in order to

study the situation on the spot and to report to the Government of

India.

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Accompanied by Army and Air Force officers and by the late D. N.

Kachru, I flew by a B.O.A. C. plane to Srinagar. This was one of the

planes which had been chartered for the evacuation of British

nationals from Srinagar. When I landed at the airfield, I was

oppressed by the stillness as of a graveyard all around. Over

everything hung an atmosphere of impending calamity.

From the aerodrome we went straight to the residence of the Prime

Minister of the State. The road leading from the aerodrome to

Srinagar was deserted. At some of the street corners I noticed

volunteers of the National Conference with lathis who challenged

passers-by; but the State police were conspicuous by their absence.

Mehr Chand Mahajan apprised us of the perilous situation and

pleaded for the Government of India to come to the rescue of the

State. Mahajan, who is usually self-possessed, seemed temporarily

to have lost his equanimity. From his residence we both proceeded

to the Maharajah's palace. The Maharajah was completely

unnerved by the turn of events and by his sense of lone

helplessness. There were practically no State Forces left and the

raiders had almost reached the outskirts of Baramula. At this rate

they would be in Srinagar in another day or two. It was no use

harping on the past or blaming the Maharajah for his inaction. I am

certain that he had never thought of the possibility of an invasion of

his State by tribesmen nor of the large-scale desertions of Muslims

from his army and police. By that time, Srinagar had very little

contact with the mofussil areas and it was difficult to find out the real

situation. The one hopeful fact was that Brigadier Rajinder Singh

had promised to hold the raiders as long as possible from reaching

Baramula and we knew that he would fight, if necessary, to the bitter

end.

The first thing to be done was to get the Maharajah and his family

out of Srinagar. The reason for this was obvious. The raiders were

close to Baramula. The Maharajah was quite helpless and, if the

Government of India decided not to go to his rescue, there was no

doubt about the fate that would befall him and his family in Srinagar.

There was also a certainty that the raiders would loot all the valuable

possessions in the palace. In these circumstances I advised him to

leave immediately for Jammu and to take with him his family and his

valuable possessions.

After assuring myself that he would leave that night and after

gathering all the information I could from people who were in a

position to give it, I went to the Guest House in the early hours of

the morning for a little rest. Just as I was going to sleep, Mahajan

rang me up to say that there were rumours that the raiders had

infiltrated into Srinagar and that it would be unsafe for us to remain

any longer in the city. I could hardly believe that the raiders could

have reached Srinagar, but I had to accept Mahajan's advice. The

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Maharajah had taken away all the available cars and the only

transport available was an old jeep. Into this were bundled Mahajan,

myself and the air crew of six or seven. When we reached the

airfield, the place was filled with people, in striking contrast to its

deserted appearance when I arrived there the previous evening.

We left Srinagar in the first light of the morning of 26 October and

immediately on my arrival in Delhi I went straight to a meeting of the

Defence Committee. I reported my impressions of the situation and

pointed out the supreme necessity of saving Kashmir from the

raiders. Lord Mountbatten said that it would be improper to move

Indian troops into what was at the moment an independent country,

as Kashmir had not yet decided to accede to either India or Pakistan.

If it were true that the Maharajah was now anxious to accede to

India, then Jammu and Kashmir would become part of Indian

territory. This was the only basis on which Indian troops could be

sent to the rescue of the State from further pillaging by the

aggressors. He further expressed the strong opinion that, in view of

the composition of the population, accession should be conditional

on the will of the people being ascertained by a plebiscite after the

raiders had been driven out of the State and law and order had been

restored. This was readily agreed to by Nehru and other ministers.

Soon after the meeting of the Defence Committee, I flew to Jammu

accompanied by Mahajan. On arrival at the palace I found it in a

state of utter turmoil with valuable articles strewn all been driving all

night. I woke him up and told him of what had taken place at the

Defence Committee meeting. He was ready to accede at once. He

then composed a letter to the Governor-General describing the

pitiable plight of the State and reiterating his request for military help.

He further informed the Governor-General that it was his intention

to set up an interim government at once and to ask Sheikh Abdullah

to carry the responsibilities in this emergency with Mehr Chand

Mahajan, his Prime Minister. He concluded by saying that if the

State was to be saved, immediate assistance must be available at

Srinagar. He also signed the Intrument of Accession. Just as I was

leaving, he told me that before he went to sleep, he had left

instructions with his ADC that, if I came back from Delhi, he was not

to be disturbed as it would mean that the Government of India had

decided to come to his rescue and he should therefore be allowed

to sleep in peace; but that if I failed to return, it meant that everything

was lost and, in that case, his ADC was to shoot him in his sleep!

With the Instrument of Accession and. the Maharajah's letter I flew

back at once to Delhi. Sardar was waiting at the aerodrome and we

both went straight to a meeting of the Defence Committee which

was arranged for that evening. There was a long discussion, at the

end of which it was decided that the accession of Jammu and

Kashmir should be accepted, subject to the proviso that a plebiscite

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173

would be held in the State when the law and. order situation allowed.

It was further decided that an infantry battalion should be flown to

Srinagar the next day. This decision had the fullest support of

Sheikh Abdullah, who was in Delhi at that time and who had been

pressing the Government of India on behalf of the All-Jammu and

Kashmir National Conference for immediate help to be sent to the

State to resist the tribal invasion.

Even after this decision had been reached Lord Mountbatten and

the three British Chiefs of Staff of the Indian Army, Navy and Air

Force pointed out the risks involved in the operation. But Nehru

asserted that the only alternative to sending troops would be to allow

a massacre in Srinagar, which would be followed by a major

communal holocaust in India. Moreover, the British residents in

Srinagar would certainly be murdered by the raiders, since neither

the Pakistan Commander-in-Chief nor the Supreme Commander

was in a position to safeguard their lives.”

243. Menon adverts to the operation which took place involving the air-lifting of

Indian troops into Srinagar. His account further notes:

“As there was a difference of opinion between Sardar and Nehru the

matter was naturally referred to Gandhiji. That night I had a

telephone call from his secretary who told me that Gandhiji wanted

to see me urgently. I went to Birla House and found Nehru and

Sardar conferring with Gandhiji. Gandhiji asked me what my

objections were to Nehru going to Lahore. I replied that when this

was mooted to me by Lord Mountbatten I was entirely opposed to

the idea and I gave reasons for my stand. While the discussions

were going on we noticed that Nehru was looking flushed and tired.

It was found that he was actually running a high temperature. His

going to Lahore was therefore out of the question. A few days later

Liaqat Ali Khan cast doubts on the genuineness of Nehru's illness,

but the truth is as I have stated. It was then decided that Lord

Mountbatten should go alone.”

244. On 5 March 1948, Maharaja Hari Singh issued a Proclamation for the

establishment of a “fully democratic constitution based on adult franchise with

a hereditary Ruler from my dynasty as the Constitutional Head of an

Executive responsible to the legislature”. Through the Proclamation,

Maharaja Hari Singh replaced the Emergency Administration by a popular

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174

interim Government pending the establishment of a fully democratic

Constitution. The Council of Ministers, in terms of paragraph 1 of the

Proclamation would consist of Sheikh Mohammad Abdullah as the Prime

Minister and other Ministers who would be appointed on the advice of the

Prime Minister. Para 4 noted that :

“My Council of Ministers shall take appropriate steps, as soon as

restoration of normal conditions has been completed, to convene a

National Assembly based on adult suffrage, having due regard to

the principle that the number of representatives from each voting

area should, as far as practicable, be proportionate to the population

of that area.”

245. The Constitution, the Proclamation noted, would provide adequate

safeguards for minorities and contain appropriate provisions guaranteeing the

freedom of conscience, speech and of assembly. The National Assembly, it

was envisaged, would upon the completion of the work of framing the new

Constitution, submit it through the Council of Ministers for the acceptance of

Maharaja and anticipated the inauguration “in the near future, of a fully

democratic Constitution”.

246. The events leading up to the accession of Jammu and Kashmir are

summarised below:

a. Two independent Dominions of India and Pakistan were established on

15 August 1947 by the Indian Independence Act 1947. In terms of the

provisions of the Act, sovereignty of the British Monarch over Indian

States would lapse and return to the Rulers of those States. The States

then had a choice to either be independent of or accede to either the

Dominion of Pakistan or India;

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175

b. The State of Jammu and Kashmir acceded to the Dominion of India by

executing an IoA on 26 October 1947;

c. Though the State of Jammu and Kashmir had acceded to the Dominion

of India, it reserved the right to alter the terms of the arrangement in view

of Clause 7 of the IoA read with Section 6(2) of the Government of India

Act 1935 which was made applicable through the India (Provisional

Constitution) Order 1947. In terms of Clause 7 of the IoA, the State of

Jammu and Kashmir reserved the right to alter the terms of arrangement

of power between India and the State of Jammu and Kashmir. The

Clause specifically reserves the right of the State to “enter into

agreement with the Government of India under any future constitution”;

d. It was not the IoA but the response of the Governor General to the offer

by the State of Jammu and Kashmir which recorded that since the issue

of accession was in dispute in Jammu and Kashmir, it shall be decided

finally by the people; and

e. On 5 March 1948, Maharaja Hari Singh issued a Proclamation for the

establishment of a Constitution for the State of Jammu and Kashmir for

the governance of the State.

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II. The constitutional integration of Indian States

a) Internal Constitutions of States

247. The Draft Constitution of India 1948

207

provided that India shall be a “Union

of States”. The term “State” included Part I, Part II, Part III states in the First

Schedule to the Constitution. The territories known as Governors’ Provinces

immediately before the commencement of the Constitution were placed in

Part I of the First Schedule to the Draft Constitution. This included the States

of Madras, Bombay, West Bengal, United Provinces, Bihar, East Punjab,

Central Provinces and Berar, Assam, and Orissa. The territories known

immediately before the commencement of the Constitution as the Chief

Commissioners’ Provinces were placed in Part II. Part II included the states

of Delhi, Ajmer-Mewara including Panth Piploda, and Coorg. Part III consisted

of Indian States. The State of Jammu and Kashmir was placed in Part III.

248. The Indian States (included in Part III of the Draft Constitution) entered the

Constituent Assembly of India on the basis that they would accede to the

Union of India by suitable instruments, and that the Constituent Assemblies

of the States would frame separate Constitutions for the States.

208

In the

Covenants relating to the formation of Unions of States, a provision was made

for setting up local Constituent Assemblies in each State.

209

As we have

already noted above, the Maharaja of Jammu and Kashmir issued a

207

Draft Constitution of India (May 1948); “Draft Constitution”

208

Note by the Ministry of States explaining the decisions regarding the Indian States (July 1949)

209

ibid

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proclamation on 5 March 1948 for the establishment of a State Constitution

stipulating that the State Constitution shall be framed by the National

Assembly which shall be constituted after the restoration of ‘normalcy’ in the

State.

249. However, it was soon realised that if each of the States were to have their

own Constitution without any guidance, there would be inconsistencies

between the Constitutions of the States and the Constitution of the Union. To

resolve this anomaly, a committee Chaired by the constitutional advisor, BN

Rau, was appointed to prepare a model Constitution to serve as a guide in

framing the Constitution for the States.

210

The Committee noted that if the

Constitution proposed by the Committee is accepted by the Constitution-

making bodies in the Indian States, then a special part in the Draft

Constitution could be included on the Constitutions of Indian States. This Part

would then provide that the provisions relating to the Provinces would apply

to the States subject to specified variations set out in a separate Schedule to

the Constitution.

250. However, certain practical difficulties arose in implementing the proposal.

Constituent Assemblies had not yet been set up in a few of the States

(Rajasthan, PEPSU, Vindhya Pradesh and Madhya Bharat) in Part III. But it

was imperative that the Constitution for the whole of India came into force

from January 1950. In a Conference held in May 1949, it was decided to not

wait till Constituent Assemblies were set up in each State. Instead, the

210

See Report of the Committee for the Drafting of a Model Constitution for the Indian States (March 22 1949)

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178

Constituent Assembly of India could with the “consent and concurrence” of

the States frame Constitutions for all the States in consonance with the model

State Constitution which was framed earlier and that these State Constitutions

would be a Part of the Indian Constitution itself.

211

Sardar Vallabhbhai Patel

explained the shift from the theory of two Constitutions (at the level of the

Union and the States) to a single Constitution (only at the level of the Union

which would incorporate State Constitutions) in the following words:

“When the covenants establishing the various Unions of States were

entered into, it was contemplated that the constitutions of the

various Unions would be formed by their respective Constituent

Assemblies within the framework of the covenants and the

Constitution of India. These provisions were made in the

covenants at a time when we were still working under the

shadow of the theory, that the assumption, by the Constituent

Assembly of India, of the constitution-making authority in

respect of the States would constitute an infringement of the

autonomy of the States. As however, the States came closer to

the Centre, it was realised that the idea of separate

Constitutions being framed for the different constituent unis of

the Indian Union was a legacy from the Rulers’ polity and that

in a people’s polity there was no scope for variegated

constitutional patterns. We, therefore, discussed this matter with

the Premiers of the various Unions and decided, with their

concurrence, that the Constitution of the States should also form an

integral part of the Constitution of India. The readiness with which

the legislatures of the three States in which such bodies are

functioning at present, namely, Mysore, Travancore and Cochin

Union and Saurashtra, have accepted this procedure, bears

testimony of the wish of the people of the States to eschew the

separatist trends of the past.”

212

(emphasis supplied)

251. The Constituent Assembly of India was unable to lay down the division of

legislative competence between the State and the Union because the Indian

States had earlier acceded legislative competence to the Dominion of India

211

B Shiva Rao, The Framing of India’s Constitution: A Study, Pg. 552

212

Constituent Assembly Debates (Volume 10; 12 Oct 1949)

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only over the subjects of Defence, Foreign Affairs and Communications. The

reason for the Indian States acceding legislative competence only with

respect to these three specific subjects is traceable to the Cabinet Mission

Plan. The Cabinet Mission examined whether a separate and fully

independent sovereign State of Pakistan could be formed. It rejected the idea

of a separate sovereign State of Pakistan and as a compromise

recommended a three-tier basis for the Constitution. There was to be a Union

of India, embracing both British India and Princely States. The Union was to

deal with foreign affairs, defence, and communications. The provinces would

have power over all other subjects and residuary power.

213

However, fresh

IoAs were entered into by the States acceding competence to the Dominion

of India over all matters specified in the Federal and Concurrent Legislative

Lists of the Draft Constitution, except those relating to taxation.

214

The Raj

Pramukh of Saurashtra executed a revised IoA on 22 May 1948. The

Preamble to the IoA stated that a fresh IoA was being executed, replacing the

IoA executed in August 1947 “accepting as matters with respect to which the

Dominion Legislature may make laws for the United State all matters

mentioned in List I and List III of the Seventh Schedule to the Government of

India Act 1935, except matters relating to taxation.” Clause 3 of the IoA read

as follows:

“I accept all matters enumerated in List I and List III of the Seventh

Schedule to the Act as matters in respect of which the Dominion

Legislature may make laws for the United State.

213

Shiva Rao, Pg. 211

214

White Paper on Indian States (July 5 1948) 77

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180

Provided that nothing contained in said Lists or in any other

provision of the Act shall be deemed to empower the Dominion

Legislature to impose any tax or duty in the territories of the United

State or to prohibit the imposition of any duty or tax by the

Legislature of the United State in the said territories.”

252. Similar IoAs were executed by the States of Madhya Bharat, Patiala and East

Punjab States Union, Matsya Union, United State of Rajasthan, Tranvancore-

Cochin, and Mysore. However, the State of Jammu and Kashmir had

expressed its inability to expand the matters listed in the IoA until the

Constituent Assembly of the State was formed.

215

The State of Jammu and

Kashmir only acceded to Dominion control over the subjects of defence,

external affairs, communication, and ancillary matters. The Schedule to the

IoA executed by the State of Jammu and Kashmir is extracted below:

“A. Defence

The naval, military and air forces of the Dominion and any other

armed forces raised or maintained by the Dominion; any armed

forces, including forces raised or maintained by an acceding State,

which are attached to, or operating with, any of the armed forces of

the Dominion.

Naval, military and air force works, administration of cantonment

areas.

Arms, fire-arms, ammunition.

Explosives.

B. External Affairs

External affairs; the implementing of treaties and agreements with

other countries; extradition, including the surrender of criminals and

accused persons to parts of His Majesty's Dominions outside India.

215

Shiva Rao, pg. 991

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181

Admission into, and emigration and expulsion from, India, including

in relation thereto the regulation of the movements in India of

persons who are not British subjects domiciled in India or subjects

of any acceding State; pilgrimages to places beyond India.

Naturalisation.

C. Communications

Posts and telegraphs, including telephones, wireless, broadcasting,

and other like forms of communication.

Federal railways; the regulation of all railways other than minor

railways in respect of safety, maximum and minimum rates and

fares, station and services terminal charges, interchange of traffic

and the responsibility of railway administrations as carriers of goods

and passengers; the regulation of minor railways in respect of safety

and the responsibility of the administrations of such railways as

carriers of goods and passengers.

Maritime shipping and navigation, including shipping and navigation

on tidal waters; Admiralty jurisdiction.

Port quarantine.

Major ports, that is to say, the declaration and delimitation of such

ports, and the constitution and powers of Port Authorities therein.

Aircraft and air navigation; the provision of aerodromes; regulation

and organisation of air traffic and of aerodromes.

Lighthouses, including lightships, beacons and other provisions for

the safety of shipping and aircraft.

Carriage of passengers and goods by sea or by air.

Extension of the powers and jurisdiction of members of the police

force belonging to any unit to railway area outside that unit.

D. Ancillary

Election to the Dominion Legislature, subject to the provisions of the

Act and of any Order made thereunder.

Offences against laws with respect to any of the aforesaid matters.

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Inquiries and statistics for the purposes of any of the aforesaid

matters.

Jurisdiction and powers of all courts with respect to any of the

aforesaid matters but, except with the consent of the Ruler of the

acceding State, not so as to confer any jurisdiction or powers upon

any courts other than courts ordinarily exercising jurisdiction in or in

relation to that State.”

253. A separate Part was included in the Draft Constitution, numbered as Part VI-

A, which provided for an “internal Constitution” for the States in Part III, except

Jammu and Kashmir. A brief overview of the provisions in Part VI-A is

necessary to understand the nature of the Constitution of States. Article 211A

of the Draft Constitution

216

stipulated that the provisions of Part VI of the

Constitution shall apply to states in Part III as they apply to the States in Part

I subject to certain modifications and omissions. The modifications, inter alia,

included: (a) the word “Governor’ shall be substituted with the phrase

“Rajpramukh”; and (b) provisions for the Rajpramukh to be entitled to use their

residence without the payment of rent and that the Rajpramukh shall be paid

such allowances as the President may by general or a special order

determine. While introducing the amendment, Dr. BR Ambedkar explained

that the provisions which apply to Part I States shall be applied to Part III

States. However, the provisions would necessarily be modified to deal with

the special circumstances of the States in Part III:

“As will be seen, the underlying idea of this Part is that Part VI of this

Constitution which deals with the Constitution of the States will now

automatically apply under the provisions of article 211 - A to States

in Part Ill. But it is realized that in applying Part VI to the Indian

216

Article 238 of the Constitution before it was repealed by the Constitution (Seventh Amendment) Act 1956 dealt

with the “internal Constitution” of the Part B States. The Article stipulated that the provisions of Part VI was

applicable to States in Part B subject to the modifications listed in the provision.

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183

States which will be in Part III there are special circumstances for

which it is necessary to make some provision and the purpose of

this particular amendment is to indicate those particular articles in

which these amendments are necessary to be made in order to deal

with the special circumstances of the States in Part III. Otherwise

the States in Part III so far as their internal constitution is concerned

will be on a par with the States in Part 1.”

254. In view of the peculiar position of the State of Jammu and Kashmir, the

Ministry suggested that a special provision be made as a “transitional

arrangement”. The Ministry suggested the following approach for the

consideration of the Drafting Committee:

217

a. Jammu and Kashmir will be placed in Part III States of Schedule I; and

b. A special provision that the power of Parliament to enact laws with

respect to the State of Jammu and Kashmir shall be limited to matters

specified in the IoA until Parliament by law provides that all provisions

of the Constitution that apply to Part III States shall apply to Jammu and

Kashmir will be incorporated.

b) Procedure for Indian States to ratify the Constitution

255. The Constituent Assembly had to decide upon the procedure to be followed

by the States for ratification of the Constitution because the Draft Constitution

did not contain any provision prescribing a procedure for the ratification of the

Constitution by the States. The Constituent Assembly was faced with the

question of whether the Indian States would be bound by the Constitution

framed because of the execution of the IoA or whether the Constituent

217

Shiva Rao, pg. 991

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184

Assembly would have to devise a separate procedure for ratification of the

Constitution. After a detailed discussion, it was decided that the Rajpramukh

or Ruler must accept the entire Constitution of India which also includes the

internal Constitution of States on the basis of a resolution adopted by the

Constituent Assembly of the State or the Legislature, where such a body

exists. The Constituent Assemblies in the States of Mysore, Travancore and

Cochin Union, and Saurashtra which were functioning at that time accepted

the Constitution on behalf of the States upon an examination of the provisions

of the Constitution concerning the States. In States where a Constituent

Assembly was not formed, the Constitution was to be operative on the basis

of the Ruler or Rajpramukh’s acceptance, and the legislatures or the

Constitution making bodies when constituted would have the opportunity to

propose modifications to the provisions of the Constitution in so far as they

applied to the States. It was decided that any such amendment proposed

would receive earnest consideration.

218

The objective behind this

formulation was expressed as under:

“This formula has been evolved to meet the difficulty arising out of the

fact that constitution-making bodies are not likely to come into existence

in some of the Unions by the time the new Constitution is to come into

operation The objective underlying the proposed arrangement is that

whereas the whole of the Constitution will become operative in all the

States and the Unions as soon as it comes into force, it will be a good

political gesture to the popular opinion in the Unions in which no

Constituent Assemblies have yet to come into existence, if their first

Legislatures are enabled to express their views on such provisions of the

Constitution as are not considered fundamental.”

219

(emphasis supplied)

218

White paper. Pg. 110

219

Note by the Ministry of States explaining the decisions regarding the Indian States (July 1949)

PART E

185

256. The views of the Constituent Assembly would assume the “form of

recommendation and it would be open to the Union Parliament which is

expected to exercise constituent powers for a period of five years or so, to

accept or reject them”.

220

257. In pursuance of the procedure for ratification, all the States issued a

Proclamation accepting the Constitution of India. On 25 November 1949, a

Proclamation was issued by Yuvraj Karan Singh declaring that the

Constitution of India shall in so far as applicable to the State of Jammu and

Kashmir govern the constitutional relationship between the Union of India and

the State and that the Constitution shall supersede constitutional provisions

which are inconsistent with the provisions of the Indian Constitution:

“I now hereby declare and direct-

That the Constitution of India shortly to be adopted by the

Constituent Assembly of India shall in so far as it is applicable to the

State of Jammu and Kashmir, govern the constitutional relationship

between this State and the Union of India and shall be enforced in

this State by me, my heirs and successors in accordance with the

tenor of its provisions.

That the provisions of the said Constitution shall, as from the date

of its commencement, supersede and abrogate all other

constitutional provisions inconsistent therewith which are at present

in force in this State.”

258. The Proclamation by the ruler makes it abundantly clear that the State has

ratified the Constitution of India as it is applicable to the State of Jammu and

Kashmir. The Constitution would upon its commencement supersede and

abrogate all other constitutional provisions which were inconsistent with the

220

ibid

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186

Constitution of India and in force in the State. Thus, the embargo created by

Clause 7 of the IoA by which the IoA was not deemed to be an acceptance of

any future Constitution of India was lifted by the Proclamation.

259. The discussions preceding the development for a unified Constitution and the

procedure for ratification of the Constitution indicate that:

a. The Indian States mentioned in Part III of the First Schedule of the Draft

Constitution were placed differently when compared to the States

mentioned in Part I and Part II of the Schedule because:

i. constituent assemblies were constituted by the States in Part III to

frame internal constitutions for the States. Upon a steady

integration of the States with the Union, it was realised that there

was no place for two constitutions in a “people’s polity”; and

ii. the legislative competence of the Union over the States in Part III

was limited to the subjects of defence, external affairs, and

communications. Later, all States in Part III, other than Jammu and

Kashmir, by expanding the scope of IoA correspondingly

conferred the Union legislature competence over all entries in List

I and List III. In view of the limited competence of the Constituent

Assembly of India with respect to the State of Jammu and Kashmir

in demarcating legislative competence between the Union and the

State, a special provision had to be made for the State of Jammu

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187

and Kashmir in the Constitution of India; and

b. The procedure for ratification of the Constitution for the State of

Jammu and Kashmir was not intended to be different when

compared to the procedure for ratification of other States in Part III

where the Constitution was made applicable by a Proclamation of

the Rajpramukh. Maharaja Hari Singh by issuing the Proclamation

on 25 November 1949 declaring that the Constitution of India when

adopted would be applicable to the State of Jammu and Kashmir

ratified the acceptance of the Constitution of India. The ratification

could not be modified or revoked even by the Constituent Assembly

of the State. The Constituent Assembly of the State could make

recommendations for the modification of the provision as it related

to Jammu and Kashmir (that is, the special provision). However, the

Union was not bound to accept such a recommendation.

III. Debates in the Constituent Assembly on Article 370

260. On 17 October 1949, the Constituent Assembly took up draft Article 306A.

Draft Article 306A corresponded to Article 370 of the Constitution. In

introducing the Article, Shri N Gopalaswami Ayyangar stated that the history

of the accession of the State of Jammu and Kashmir to the Dominion of India

“is also well known”. He stated that “since then, the State has had a

chequered history” and “conditions are not yet normal in the State”. Upon

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188

accession, he noted, the State “is a unit of a federal State namely, the

Dominion of India” and upon the integration of the Republic on 26 November

1950, Jammu and Kashmir “has to become a unit of the new Republic of

India”. Ayyangar observed that the IoA “will be a thing of the past in the new

Constitution”. The States having integrated with the federal republic in such a

manner that they do not have to accede or execute a document of accession

for the purposes of becoming a unit of the republic but they would be

mentioned in the Constitution itself. He stated that “in the case of practically

all States other than the State of Jammu and Kashmir, their constitutions also

have been embodied in the Constitution for the whole of India”. All those other

states, he noted, had agreed to integrate themselves “in that way and accept

the Constitution provided”.

261. Maulana Hasrat Mohani, a member of the Constituent Assembly queried

about the reason for “this discrimination…” in relation to Jammu and Kashmir.

Responding to the query, Ayyangar noted that the State of Jammu and

Kashmir was not ripe for the manner of integration which was provided in the

Constitution for other states:

“The discrimination is due to the special conditions of Kashmir. That

particular State is not yet ripe for this kind of integration. It is the

hope of everybody here that in due course even Jammu and

Kashmir will become ripe for the same sort of integration as has

taken place in the case of other States. (Cheers) At present it is not

possible to achieve that integration. There are various reasons why

this is not possible now. I shall refer again to this a little later.”

262. Making a reference to “Kashmir’s conditions” as requiring “special treatment”,

he spelt out the nature of the conditions then existing in the State:

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189

“In the first place, there has been a war going on within the limits of

Jammu and Kashmir State.

There was a cease-fire agreed to at the beginning of this year and

that cease-fire is still on. But the conditions in the State are still

unusual and abnormal. They have not settled down. It is therefore

necessary that the administration of the State should be geared to

these unusual conditions until, normal life is restored as in the case

of the other States.

Part of the State is still in the hands of rebels and enemies.

We are entangled with the United Nations in regard to Jammu and

Kashmir and it is not possible to say now when we shall be free from

this entanglement. That can take place only when the Kashmir

problem is satisfactorily settled.”

263. Besides the situation in Jammu and Kashmir, Ayyangar also referred to the

commitment made by the Government of India to the people of Kashmir “in

certain respects” in terms of which “an opportunity would be given to the

people of the State to decide for themselves whether they will remain with the

Republic or wish to go out of it”. Ayyangar also stated that the Government

was committed to ascertaining the will of the people “by means of a plebiscite

provided that peaceful and normal conditions are restored and the impartiality

of the plebiscite could be guaranteed”. Moreover, he stated that the will of the

people “through the instrument of a constituent assembly” will determine the

Constitution of the State as well as the sphere of Union jurisdiction over the

State. Ayyangar clearly spelt out that unlike other states which had accepted

the Constitution framed for states in Part I of the new Constitution; where the

Centre would have power to make laws on all Union and Concurrent subjects

and a uniformity of relationship had been established between the States and

the Centre, the situation as it obtained in Jammu and Kashmir was different :

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190

“At present, the legislature which was known as the Praja Sabha in

the State is dead. Neither that legislature nor a constituent assembly

can be convened or can function until complete peace comes to

prevail in that State. We have therefore to deal with the Government

of the State which, as represented in its Council of Ministers, reflects

the opinion of the largest political party in the State. Till a

constituent assembly comes into being, only an interim

arrangement is possible and not an arrangement which could

at once be brought into line with the arrangement that exists in

the case of the other States.”

(emphasis supplied)

264. The above extract from the text of the speech of Gopalaswami Ayyangar

clearly envisaged that until a Constituent Assembly for the State came into

being, an interim arrangement was possible in contrast to an arrangement

which could be brought in line with the constitutional arrangement for other

States. Hence, he stated:

“Now, if you remember the view points that I have mentioned, it is

an inevitable conclusion that, at the present moment, we could

establish only an interim system. Article 306A is an attempt to

establish such a system.”

(emphasis supplied)

265. Elaborating on some of the clauses of draft Article 306, Ayyangar observed :

“The Second portion of this article relates to the legislative authority

of Parliament over the Jammu and Kashmir State. This is governed

primarily by the Instrument of Accession. Broadly speaking, that

legislative power is confined to the three subjects of defence, foreign

affairs and communications, but as a matter of fact these broad

categories include a number of items which are listed in the

Instrument of Accession. I believe they number some twenty to

twenty-five. Now, these items have undergone a change in

description, in numbering, in arrangement, as amongst themselves,

in List I and List Ill of the new Constitution. It is therefore necessary

that the items mentioned in the Instrument of Accession should be

brought into line with the changed designations of entries in Lists I

and Ill of the new Constitution. So, clause (1) (b) of article 306A says

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that this listing of the items as per the terms of the new Constitution

should be done by the President in consultation with the

Government of the State.

Clause (b)(ii) refers to possible additions to the List in the Instrument

of Accession, and these additions could be made according to the

provisions of this article with the concurrence of the Government of

the State. The idea is that even before the Constituent Assembly

meets, it may be necessary in the interests of both the Centre and

the State that certain items which are not included in the Instrument

of Accession would be appropriately added to the List in that

Instrument so that administration, legislation and executive action

might be furthered, and as this may happen before the Constituent

Assembly meets, the only authority from whom we can get consent

for the addition is the Government of the State. That is provided for.”

266. He also adverted to the explanation to the Article. Ayyangar clarified that

Article 1 of the Constitution “will automatically apply” to the State of Jammu

and Kashmir which was one of the States mentioned in Part III.

267. While adverting to several clauses which provide for the concurrence of the

State of Jammu and Kashmir for the application of the provisions of the

Constitution, Ayyangar noted:

“Now, these relate particularly to matters which are not mentioned

in the Instrument of Accession, and it is one of our commitments to

the people and Government of Kashmir that no such additions

should be made except with the consent of the Constituent

Assembly which may be called in the State for the purpose of

framing its Constitution. In other words, what we are committed to is

that these additions are matters for the determination of the

Constituent Assembly of the State.

Now, you will recall that in some of the clauses of this article we

have provided for the concurrence of the Government of the State.

The Government of the State feel that in view of the commitments

already entered into between the State and the Centre, they cannot

be regarded as final authorities for the giving of this concurrence,

though they are prepared to give it in the interim periods but if they

do give this concurrence, this clause provides that that concurrence

should be placed before the Constituent Assembly when it meets

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and the Constituent Assembly may take whatever decisions it likes

on those matters.”

268. Ayyangar clarified the scope of the last clause of draft Article 306A and

observed:

“The last clause refers to what may happen later on. We have said

article 211A will not apply to the Jammu and Kashmir State. But that

cannot be a permanent feature of the Constitution of the State, and

hope it will not be. So the provision is made that when the

Constituent Assembly of the State has met and taken its decision

both on the Constitution for the State and on the range of federal

jurisdiction over the State, the President may on the

recommendation of that Constituent Assembly issue an order that

this article 306A shall either cease to be operative, or shall be

operative only subject to such exceptions and modifications as may

be specified by him. But before he issues any order of that kind the

recommendation of the Constituent Assembly will be a condition

precedent. That explains the whole of this article.”

269. Summing up the effect of the Article, Ayyangar observed:

“The effect of this article is that the Jammu and Kashmir State which

is now a part of India will continue to be a part of India, will be a unit

of the future Federal Republic of India and the Union Legislature will

get jurisdiction to enact laws on matters specified either in the

Instrument of Accession or by later addition with the concurrence of

the Government of the State. And steps have to be taken for the

purpose of convening a Constituent Assembly in due course which

will go into the matters I have already referred to. When it has come

to a decision on the different matters it will make a recommendation

to the President who will either abrogate article 306A or direct that it

shall apply with such modifications and exceptions as the

Constituent Assembly may recommend.”

270. The motion on Article 306A was adopted by the Constituent Assembly. The

address by Gopalaswami Ayyangar before the Constituent Assembly

illuminates several facets which weighed with the framers in preparing draft

Article 306A. First, the address indicates that following the execution of the

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193

IoA, Jammu and Kashmir had become a part of India and would continue to

be a part of the territory of the nation and a unit of the future federal republic;

and second, the process of integrating other States in the Union was complete

but the State of Jammu and Kashmir was not yet ripe for the kind of

integration which was envisaged for the rest of the states due to the

following circumstances:

a. A war was going on within the limits of the State and while a ceasefire

had been agreed to, the conditions were abnormal since a part of the

State was still in the hands of rebels and enemies;

b. The Dominion was “entangled with the United Nations”;

c. Neither the legislature nor the Constituent Assembly of the State could

be established;

d. Pending the conclusion of this exercise, draft Article 306A postulated

consultation with the State Government on matters which fell within the

ambit of the Dominion under the IoA and concurrence on other matters;

and

e. After the Constituent Assembly of the State met and took a decision on

the Constitution for the State and the range of federal jurisdiction over

the State, the President may, on the recommendation of that Constituent

Assembly, issue an order that Article 306A would either cease to operate

or operate subject to exceptions and modifications.

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194

IV. Inference

271. The IoA executed by the Maharaja of Jammu and Kashmir states that (a) he

accedes to the Dominion of India; (b) the Authorities of the Dominion including

the Governor General of India, the Dominion Legislature, the Federal court

and any other Dominion Authority shall exercise such functions vested in the

Government of India Act 1935 in relation to the State of Jammu and Kashmir;

and (c) the legislative competence of the Legislature of the Union shall be

limited to defence, external affairs, communication, and certain ancillary

matters. The accession by the Maharaja through the IoA to the Dominion of

India was not subject to any conditions. The necessary effect of the accession

is also stipulated in the IoA itself: the authorities of the Dominion, that is the

executive, legislature and courts of the Dominion shall exercise control over

the State of Jammu and Kashmir. The limitation on the legislative competence

of the Dominion Legislature in the State of Jammu and Kashmir does not in

any way limit the transfer of power from the monarch to the federal institutions

of Independent India.

272. Under the IoA, the Dominion Authorities were to exercise functions as vested

in them by the Government of India Act 1935. Upon the adoption of the Indian

Constitution and the Proclamation issued by the Maharaja of Jammu and

Kashmir on 25 November 1949 ratifying the Indian Constitution, the functions

of the Dominion Authorities including the legislature in Jammu and Kashmir

were limited solely by the provisions of the Constitution of India and not the

IoA, the Government of India Act 1935 or the Indian Independence Act 1947.

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The Proclamation issued by the Maharaja of Jammu and Kashmir ratifies the

Indian Constitution as it applies to the State of Jammu and Kashmir

unconditionally. The vestiges of colonial and monarchical governance were

severed with the adoption and ratification of the Constitution. There was no

residual sovereignty left with the State upon acceding to the Dominion of

India.

273. In 1955, Justice Vivian Bose, speaking for a Constitution Bench in Virendra

Singh v. State of U.P.

221

placed the constitutional position thus :

“Every vestige of sovereignty was abandoned by the Dominion

of India and by the States and surrendered to the peoples of

the land who through their representatives in the Constituent

Assembly hammered out for themselves a new Constitution in

which all were citizens in a new order having but one tie, and

owing but one allegiance: devotion, loyalty, fidelity to the

Sovereign Democratic Republic that is India. At one stroke all

other territorial allegiances were wiped out and the past was

obliterated except where expressly preserved; at one moment of

time the new order was born with its new allegiance springing from

the same source for all, grounded on the same basis : the sovereign

will of the peoples of India with no class, no caste, no race, no creed,

no distinction, no reservation.”

(emphasis supplied)

274. In Raghunathrao Ganpatrao (supra), Justice Ratnavel Pandian adverted to

the accession of the Indian States to the Union Government and the process

through which their integration was brought about:

“31. This accession of the Indian States to the Dominion of India

established a new organic relationship between the States and the

Government, the significance of which was the forging of a

constitutional link or relationship between the States and the

Dominion of India. The accession of the Indian States to the

Dominion of India was the first phase of the process of fitting them

221

(1955) 1 SCR 415

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into the constitutional structure of India. The second phase involved

a process of twofold integration, the consolidation of States into

sizeable administrative units, and their democratisation. Though

high walls of political isolation had been raised and buttressed to

prevent the infiltration of the urge for freedom and democracy into

the Indian States, with the advent of independence, the popular urge

in the States for attaining the same measure of freedom as was

enjoyed by the people in the Provinces, gained momentum and

unleashed strong movements for the transfer of power from the

Rulers to the people. On account of various factors working against

the machinery for self-sufficient and progressive democratic set-up

in the smaller States and the serious threat to law and order in those

States, there was an integration of States though not in a uniform

pattern in all cases. Firstly, it followed the merger of States in the

provinces geographically contiguous to them. Secondly, there was

a conversion of States into centrally administered areas and thirdly

the integration of their territories to create new viable units known

as Union of States.”

275. For instance, all the other states in Part III of the Draft Constitution during the

adoption of the Constitution (which were Part B States on the adoption of the

Constitution) had given competence to the Dominion Legislature over all

entries in List I and List III of the Seventh Schedule except taxation. However,

the Constitution (as adopted) did not make any distinction between Part A and

Part B states for the purpose of taxation. Entries relating to taxation are placed

in both List II and List III of the Seventh Schedule to the Constitution. The

Rulers of the States when they issued a Proclamation ratifying the

Constitution removed the limits which were placed on the Union’s legislative

power by their IoAs. It is only the Constitution of India and not the IoA which

limited the power of the Union and the federal units.

276. By the seventh constitutional amendment, the distinction between Part A and

Part B States was abolished. All territories were consolidated under the head

of “States” and “Union Territories”. With this, the distinction between

Governor’s provinces and Indian States died a natural death. The distinction

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197

between Governor’s Provinces and Indian States was made in the

Constitution because earlier the Rulers of Indian States had given limited

legislative competence to the Union through the IoA, and because of the

special circumstances in the Princely States. When the distinction between

Part A and Part B states was abolished and Article 238 was repealed, the

argument that within Part B states, the State of Jammu and Kashmir has a

special status because the IoA executed by the Maharaja was limited cannot

be accepted.

277. The Constituent Assembly of India was not obligated to restrict the power of

the Union legislature in the State of Jammu and Kashmir to the matters

specified in the IoA. It could have taken the route that it did with other Part B

States where legislative competence of the Union legislature was extended

in terms of the Seventh schedule of the Constitution. The Constituent

Assembly of India chose to limit the power of the Union legislature to matters

specified in the IoA because of the special circumstances in the State, which

were identified by Mr Ayyangar in his speech. Jammu and Kashmir had

acceded to the Dominion of India. Once that was the position, there was no

legal impediment on the Constituent Assembly of India providing for the

exercise of powers with respect to the State of Jammu and Kashmir at par

with other states. However, it was believed by the members of the Constituent

Assembly that it would send a message of goodwill if the consent of the

Constituent Assembly of Jammu and Kashmir is obtained before the

legislative competence of the Union over the State is drawn.

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278. Thus, Article 370 was introduced to serve two purposes. First, an interim

arrangement until the Constituent Assembly of the State was formed and

could take a decision on the legislative competence of the Union on matters

other than the ones stipulated in the IoA, and ratify the Constitution (the

transitional purpose); and second, an interim arrangement because of the

special circumstances in the State because of the war conditions of the State

(the temporary purpose).

b. Scope of provisions in Article 370

I. Placement in Part XXI of the Constitution and Marginal Note to Article

370

279. Article 370 was a part of the Constitution as it was originally adopted on 26

January 1950. The provision was placed in Part XXI which was titled

“Temporary and Transitional provisions” when the Constitution was adopted

in 1950. The Chapter heading was substituted by its present form –

“Temporary, Transitional and Special provisions” – by the Constitution

(Thirteenth Amendment) Act 1962

222

280. Before proceeding to analyse Article 370, it is essential to understand its

contextual placement in what is described as “Temporary and Transitional

222

The Constitution (Thirteenth Amendment) Act 1962 came into force on 1 December 1963’ “Thirteenth

Amendment”

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provisions” at the adoption of the Constitution; subsequently extended to

incorporate “Special Provisions”.

281. Article 369 entrusted Parliament, for a period of five years from the

commencement of the Constitution the authority to make laws with certain

specific matters as if they were enumerated in the Concurrent List. These

matters were :

a. Trade and commerce within a State in and the production, supply and

distribution of identified commodities including foodstuffs, cattle fodder,

coal, iron, steel and mica, raw cotton, cotton seed, paper, and cotton

and woollen textiles; and

b. Offences dealing with the above matters and the jurisdiction and powers

of all courts except the Supreme Court together with the imposition of

fees

223

282. Article 371 stipulated temporary provisions with respect to Part B States,

providing that for a period of ten years from the commencement of the

223

369. Temporary power to Parliament to make laws with respect to certain matters in the State List as if they

were matters in the Concurrent List Notwithstanding anything in this Constitution, Parliament shall, during a period

of five years from the commencement of this constitution, have power to make laws with respect to the following

matters as if they were enumerated in the Concurrent List, namely:

(a) trade and commerce within a State in, and in production, supply and distribution of, cotton and woollen textiles,

raw cotton (including ginned cotton and unginned cotton or kapas), cotton seed, paper (including newsprint),

foodstuffs (including edible oilseeds and oil), cattle fodder (including oil cakes and other concentrates), coal

(including coke and derivatives of coal), iron, steel and mica;

(b) offences against laws with respect to any of the matters mentioned in clause (a), jurisdiction and powers of all

courts except the Supreme Court with respect to any of those matters, and fees in respect of any of those matters

but not including fees taken in any court; but any law made by Parliament, which Parliament would not but for the

provisions of this article have been competent to make, shall, to the extent of the incompetency, cease to have

effect on the expiration of the said period, except as respects things done or omitted to be done before the expiration

thereof

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Constitution (a period which could be extended or shortened by Parliament),

the Government of a Part B State would be under the general control of and

would have to comply with the directions issued by the President

224

283. Article 372

225

provided for the continuation of all laws in force in the territory

of India at the commencement of the Constitution until altered or repealed by

a competent legislature. The President was also empowered to make

adaptations and modifications to the law including both repeal and

224

Subs. By the Constitution (Seventh Amendment) Act, 1956, S. 22 (w.e.f. 1-11-1956), for the original Art. 371.

Prior to substitution it read as

“371. Temporary provisions with respect to States in Part B of the First Schedule- Notwithstanding anything in this

Constitution, during a period of ten years from the commencement thereof, or during such longer or shorter period

as Parliament may be law provide in respect of any State, the Government of every State specified in Part B of the

First Schedule shall be under the general control of, and comply with such particular directions, if any, as may from

time to time be given by the President:

Provided that the President may be order direct that the provisions of this article shall not apply to any State

specified in the order.

225

372. Continuance in force of existing laws and their adaptation.

(1) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the

other provisions of this Constitution, all the law in force in the territory of India immediately before the

commencement of this Constitution shall continue in force therein until altered or repealed or amended by a

competent Legislature or other competent authority.

(2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the

provisions of this Constitution, the President may by order make such adaptations and modifications of such law,

whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as

from such date as may be specified in the order, have effect subject to the adaptations and modifications so made,

and any such adaptation or modification shall not be questioned in any court of law.

(3) Nothing in clause (2) shall be deemed-

(a) to empower the President to make any adaptation or modification of any law after the expiration of three years

from the commencement of this Constitution; or

(b) to prevent any competent Legislature or other competent authority from repealing or amending any law adapted

or modified by the President under the said clause.

Explanation I.-The expression “law in force” in this article shall include a law passed or made by a Legislature or

other competent authority in the territory of India before the commencement of this Constitution and not previously

repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.

Explanation II.-Any law passed or made by a Legislature or other competent authority in the territory of India which

immediately before the commencement of this Constitution had extra-territorial effect as well as effect in the territory

of India shall, subject to any such adaptations and modifications as aforesaid, continue to have such extra-territorial

effect.

Explanation III.-Nothing in this article shall be construed as continuing any temporary law in force beyond the date

fixed for its expiration or the date on which it would have expired if this Constitution had not come into force.

Explanation IV.-An Ordinance promulgated by the Governor of a Province under section 88 of the Government of

India Act, 1935, and in force immediately before the commencement of this Constitution shall, unless withdrawn

by the Governor of the corresponding State earlier, cease to operate at the expiration of six weeks from the first

meeting after such commencement of the Legislative Assembly of that State functioning under clause (1) of article

382, and nothing in this article shall be construed as continuing any such Ordinance in force beyond the said period.

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amendment to bring such laws in conformity with the Constitution. Originally

this period for making adaptations and modifications was two years but was

substituted by the Constitution (First Amendment) Act 1951 to three years.

284. Article 373 contained transitional provisions pertaining to preventive

detention. Clause (7) of Article 22 of the Constitution empowers Parliament

to prescribe by law the circumstances under which and the cases in which a

person may be detained for a period of more than three months under a law

providing for preventive detention and the maximum period for which a person

may be detained. Article 373 contained provisions which would operate until

a provision was made by Parliament under clause (7) of Article 22 or for a

period of one year from the commencement of the Constitution whichever

was earlier. For that period, it was stipulated that the reference to Parliament

in clauses (4) and (7) of Article 22 would be substituted by a reference to the

President and a reference to a law enacted by Parliament would be

substituted by a reference to an order made by the President.

285. Article 374 provided that the judges of the Federal Court, who held office

before the commencement of the Constitution would unless they elected

otherwise become judges of the Supreme Court on the commencement of the

Constitution and cases pending before the Federal Court would be transferred

to the jurisdiction of the Supreme Court.

286. Article 375 stipulated that all courts, authorities and officers would continue to

function under the Constitution. Article 376 provided for the continuation of

judges appointed to the High Courts before the commencement of the

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202

Constitution. In a similar manner, Article 377 and Article 378 provided for the

continuation of the Auditor General of India and Members of the Public

Service Commission for the Dominion of India who held office immediately

before the commencement of the Constitution.

287. Article 379 contained provisions for a provisional Parliament until both Houses

of Parliament were duly constituted and summoned for meeting for the first

session under the provisions of the Constitution. In terms of clause (1), the

Constituent Assembly for the Dominion of India immediately before the

commencement of the Constitution was to function as the provisional

Parliament and was entrusted with all the powers conferred by the

Constitution to Parliament

226

“379. Provisions as to provisional Parliament and the Speaker and Deputy Speaker thereof. – (1) Until both

Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions

of this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately before

the commencement of this Constitution shall be the provisional Parliament and shall exercise all the powers and

perform all the duties conferred by the provisions of this Constitution on Parliament.

Explanation. – For the purposes of this clause, the Constituent Assembly of the Dominion of India includes –

(i) The members chosen to represent any State or other territory for which representation is provided under

clause (2), and

(ii) The members chosen to fill casual vacancies in the said Assembly.

(2) The President may by rules provide for –

(a) the representation in the provisional Parliament functioning under clause (1) of any State or other territory

which was not represented in the Constituent Assembly of the Dominion of India immediately before the

commencement of this Constitution,

(b) the manner in which the representatives of such States or other territories in the provisional Parliament shall

be chosen, and

(3) If a member of the Constituent Assembly of the Dominion of India was, on the sixth day of October ,1949, or

thereafter at any time before the commencement of this Constitution, a member of a House of the Legislature of

a Governor’s Province or of an Indian State corresponding to any State specified in Part B of the First Schedule

or a Minister for any such State, then, as from the commencement of this Constitution the seat of such member

in the Constituent Assembly shall, unless he has ceased to be a member of that Assembly earlier, become vacant

and every such vacancy shall be deemed to be a casual vacancy.

(4) Notwithstanding that any such vacancy in the Constituent Assembly of the Dominion of India as is mentioned

in clause (3) has not occurred under that clause, steps may be taken before the commencement of this

Constitution for the filling of such vacancy, but any person chosen before such commencement to fill the vacancy

shall not be entitled to take his seat in the said Assembly until after the vacancy has so occurred.

(5) Any person holding office immediately before the commencement of this Constitution as Speaker or Deputy

Speaker of the Constituent Assembly when functioning as the Dominion Legislature under the Government of

India Act, 1935, shall on such commencement be the Speaker or, as the case may be, the Deputy Speaker of the

provisional Parliament functioning under clause (1).”

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288. Article 380 provided that until a President was elected in accordance with the

provisions of Chapter 1 of Part V of the Constitution, the person elected as

President by the Constituent Assembly of the Dominion of India shall function

as the President of India

227

289. Article 381, empowered the President to appoint Members of the Council of

Ministers and until then all persons who were holding office as Ministers for

the Dominion of India before the commencement of the Constitution were to

continue to hold that office

228

290. Article 382 contained provisions for provisional legislatures for the States in

Part A in terms of which the legislatures which were functioning immediately

before the Constitution in the provinces were to exercise their powers and

functions until the duly constituted legislature was summoned to meet for the

first session under the provisions of the Constitution

229

227

Repealed Art. 380 read as :

380. Provision as to President – (i) Such person as the Constituent Assembly of the Dominion of India shall have

elected in that behalf shall be the President of India until a President has been elected in accordance with the

provisions contained in Chapter I of Part V and has entered upon his office.

(2) In the event of the occurrence of any vacancy in the office of the President so elected by the Constituent

Assembly of the Dominion of India by reason of his death, resignation, or removal or otherwise, it shall be filled by

a person elected in that behalf by the provisional Parliament functioning under Article 379, and until a person is so

elected, the Chief Justice of India shall act as President.”

228

Repealed Art. 381 read as :

381. Council of Ministers of the President – Such persons as the President may appoint in that behalf shall become

members of the Council of Ministers of the President under this Constitution, and, until appointments are so made,

all persons holding office as Ministers for the Dominion of India immediately before the commencement of this

Constitution shall on such commencement become, and shall continue to hold office as, members of the Council

of Ministers of the President under this Constitution.

229

“38 Repeal Art. 382 read as:

382. Provisions as to provisional Legislatures for States in Part A of the First Schedule. – (1) Until the House or

Houses of the Legislature of each State specified in Part A of the First Schedule has or have been duly constituted

and summoned to meet for the first session under the provisions of this Constitution, the House or Houses of the

Legislature of the corresponding Province functioning immediately before the commencem4ent of this Constitution

shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or

Houses of the Legislature of such State.

(2) Notwithstanding anything in clause (1), where a general election to reconstitute the Legislative Assembly of a

Province has been ordered before the commencement of this Constitution, the election may be completed after

such commencement as if this Constitution had not come into operation, and the Assembly so reconstituted shall

be deemed to be the Legislative Assembly of that Province for the purposes of that clause.

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291. Article 383 contained provisions for the Governors of the Provinces in terms

of which persons who were functioning as Governors at the commencement

of the Constitution in a corresponding Part A State would continue until a

Governor was appointed

230

292. Article 384 contained provisions for the Council of Ministers and the

continuance of those who were functioning at the adoption of the

Constitution.

231

Corresponding provisions for the continuance of provisional

legislatures in Part B States, and the Council of Ministers in those States were

made in Articles 385

232

and 386

233

(3) Any person holding office immediately before the commencement of this Constitution as Speaker or Deputy

Speaker of the Legislative Assembly or President or Deputy President of the Legislative Council of a Province

shall on such commencement be the Speaker or Deputy Speaker of the Legislative Assembly or the Chairman or

Deputy Chairman of the Legislative Council, as the case may be, of the corresponding State specified in Part A

of the First Schedule while such Assembly or Council functions under clause (1).

Provided that where a general election has been ordered for the reconstitution of the Legislative Assembly of a

Province before the commencement of this Constitution and the first meeting of the Assembly as so reconstituted

is held after such commencement, the provisions of this clause shall not apply and the Assembly as reconstituted

shall elect two members of the Assembly to be respectively the Speaker and Deputy Speaker thereof.”

230

Repealed Art. 383 read as :

“383. Provision as to Governors of Provinces- Any person holding office as Governor in any Province immediately

before the commencement of this Constitution shall on such commencement be the Governor of the corresponding

State specified in Part A of the First Schedule until a new Governor has been appointed in accordance with the

provisions of Chapter II of Part VI and has entered upon his office.”

231

Repealed Art.384 read as:

"384. Council of Ministers of Governors. - Such persons as the Governor of a State may appoint in that behalf shall

become members of the Council of Ministers of the Governor under this Constitution, and, until appointment are

so made, all persons holding office as Ministers for the corresponding Province immediately before the

commencement of this Constitution shall on such commencement become, and shall continue to hold office as,

members of the Council of Ministers of the Governor of the State under this Constitution."

232

Repealed Art. 385 read as:

“385. Provision as to provisional Legislatures in States in Part B of the First Schedule. - Until the House or Houses

of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and

summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning

immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State

shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or

Houses of the Legislature of the State so specified.”

233

Repealed Art. 386 read as:

“386. Council of Ministers for States in Part B of the First Schedule. - Such persons as the Rajpramukh of a State

specified in Part B of the First Schedule may appoint in that behalf shall become members of the Council of

Ministers of such Rajpramukh under the Constitution, and until appointments are so made, all persons holding

office as Ministers for the corresponding Indian State immediately before the commencement of this Constitution

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293. Article 387 contained provisions for the determination of the population for the

purposes of holding elections under the Constitution for a period of three

years from the commencement of the Constitution under Orders of the

President

234

. Article 388 made provisions for the filling up of casual vacancies

in the provisional Parliament and provisional Legislatures of the States.

294. Article 389 incorporated provisions in regard to Bills which were pending in

the Legislature of the Dominion of India or in the Legislature of any Province

or Indian State so that they could be taken up by the corresponding

Legislature

235

295. Article 390 contained provisions in regard to money which had been received

and raised for expenditure which was incurred between the commencement

of the Constitution and the 31st day of March 1950

236

shall on such commencement become, and shall continue to hold office as, members of the Council of Ministers

of such Rajpramukh under the Constitution.”

234

Repealed Art. 387 read as:

“387. Special provision as to determination of population for the purposes of certain elections.- For the purposes

of elections held under any of the provisions of this Constitution during a period of three years from the

commencement of this Constitution, the population of India or of any part thereof may, notwithstanding anything in

this Constitution, be determined in such manner as the President may by order direct, and different provisions may

be made for different States and for different purposes by such order.”

235

Repealed Art. 389 read as:

“389. – Provision as to Bills pending in the Dominion Legislature and in the Legislatures of Provinces and Indian

States. – A Bill which immediately before the commencement of this Constitution was pending in the Legislature of

the Dominion of India or in the Legislature of any Province or Indian State may, subject to any provision to the

contrary which may be included in rules made by Parliament or the Legislature of the corresponding State under

the Constitution, be continued in Parliament or the Legislature of the corresponding State, as the case may be, as

if the proceedings taken with reference to the Bill in the Legislature of the Dominion of India or in the Legislature of

the Province or Indian State had been taken in Parliament or in the Legislature of the corresponding State.”

236

Repealed Art. 390 read as:

“390. – Moneys received or raised or expenditure incurred between the commencement of the Constitution and

the 31

day of March, 1950.- The provisions of this Constitution relating to the Consolidated Fund of India or the

Consolidated Fund of any State and the appropriation of moneys out of either of such funds shall not apply in

relation to moneys received or raised or expenditure incurred by the government of India or the Government of any

State between the commencement of this Constitution and the thirty-first day of March, 1950, both days inclusive,

and any expenditure incurred during that period shall be deemed to be duly authorized if the expenditure was

specified in a schedule of authorized expenditure authenticated in accordance with the provisions of the

Government of India Act, 1935, by the Governor-General of the Dominion of India or the Governor of the

corresponding Province or is authorized by the Rajpramukh of the State in accordance with such rules as were

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296. Article 391 provided that if between the passing of the Constitution and its

commencement any action was taken by the President under the Government

of India Act 1935 which required an amendment of the First or the Fourth

Schedules, the President was empowered to do so

237

297. Article 392 empowered the President to issue orders directing that the

Constitution would be subject to such adaptations whether by modification,

addition and omission for the purpose of removing difficulties particularly in

relation to the transition from the Government of India Act 1935 to the

provisions of the Constitution. This power was to be exercised until the first

meeting of Parliament

238

298. The provisions which we have adverted to above were temporary or, as the

case may be, transitional. They were designed to be temporary either with

reference to time (a stipulated number of years) or with reference to the

occurrence of an event (for example, the first meeting of the duly constituted

applicable to the authorization of expenditure from the revenues of the corresponding Indian State immediately

before such commencement.”

237

Repealed Art. 391 read as:

“391. Power of the President to amend the First and Fourth Schedules in certain contingencies. – (1) if at any time

between the passing of this Constitution and its commencement any action is taken under the provisions of the

Government of India Act, 1935, which in the opinion of the President requires any amendment in the First Schedule

and the Fourth Schedule, the President may, notwithstanding anything in this Constitution, by order, make such

amendments in the said Schedules as may be necessary to give effect to the action so taken, and any such order

may contain such supplemental incidental and consequential provisions as the President may deem necessary.

(2) When the First Schedule or the Fourth Schedule is so amended, any reference to that Schedule in this

Constitution shall be construed as a reference to such Schedule as so amended.

238

“Article 392. Power of the President to remove difficulties.- (1) The president may, for the purpose of removing

any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935,

to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be

specified in the order, have effect subject to such adaptations whether by way of modification, addition or

omission, as he may deem to be necessary or expedient:

(2) Every order made under clause (1) shall be laid before Parliament.

(3) The powers conferred on the President by this article, by Article 324, by clause (3) of Article 367 and by Article

391 shall, before the commencement of this Constitution, be exercisable by the Governor-General of the Dominion

of India.

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elected legislature). The provisions were transitional so as to facilitate the

transfer of power from the institutions of governance which were functioning

under the Government of India Act 1935 to the duly constituted institutions

which would take over after the commencement of the Constitution.

299. To facilitate a seamless transfer of power, the Constitution contained

provisions, as we have seen, for the Constituent Assembly to function as the

Parliament until Parliament met for the first time upon its constitution after the

adoption of the Constitution. These temporary and transitional provisions

included the appointment of the President of India through a process of

election by the Constituent Assembly, the continuance of the Council of

Ministers at the Centre and in the States and for the continuance of the

provisional legislatures until elections were held. The temporary and

transitional provisions were gradually phased out after the commencement of

the Constitution, by repeal. The Constitution (Seventh Amendment) Act 1956

which came into force on 1 November 1956, repealed Article 371 and Articles

379 to 391.

300. The expansion of the ambit of Part XXI to cover special provisions took place

with the Constitution (Thirteenth Amendment) Act 1962 with effect from 1

December 1963. Over a period of time, Part XXI was amended so as to

incorporate special provisions in respect of the States and the Union

Territories. In 1956, Article 371 was substituted by the Seventh Amendment

to facilitate special provisions being made for the States of Andhra Pradesh

or Punjab in terms of the constitution and functions of the Regional

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Committees of the Legislative Assemblies of the States and for special

responsibilities of the Governor in order to secure the proper functioning of

the Regional Committees. Punjab was omitted from the ambit of Article 371

on 1 November 1966 and clause (1) as it originally stood was also omitted by

the Thirty-Second Amendment on 1 July 1974. With the reorganization of the

States in 1956, Article 371 was amended by the Seventh Amendment so as

to incorporate special provisions for the States of Maharashtra and Gujarat.

Article 371-A was inserted by the Thirteenth Amendment of the Constitution

on 1 December 1963 to incorporate special provisions with respect to the

State of Nagaland. Article 371-B was introduced by way of the Twenty-

Second Amendment of the Constitution on 25 September 1969 to make

special provisions for the State of Assam. Article 371-C for the State of

Manipur, Article 371-D for the State of Andhra Pradesh and later Telangana

(following the Reorganization Act 2014), Article 371-F for the State of Sikkim,

Article 371-G for the State of Mizoram, Article 371-H for the State of Arunachal

Pradesh, Article 371-I for the State of Goa and Article 371-J for the State of

Karnataka were brought in by constitutional amendments progressively:

a. Article 371-C – special provisions for Manipur – the Twenty-seventh

Amendment with effect from 15 February 1972;

b. Article 371-D – special provisions for Andhra Pradesh – the Thirty-

second Amendment with effect from 1 July 1974;

c. Article 371-D – special provisions for the reorganized States of Andhra

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Pradesh and Telangana – the Thirty-second Amendment with effect

from 2 June 2014;

d. Article 371-F – special provisions for Sikkim – the Thirty-sixth

Amendment with effect from 26 April 1975;

e. Article 371-G – special provisions for Mizoram – the Fifty-third

Amendment with effect from 20 February 1987;

f. Article 371-H – special provisions for the State of Arunachal Pradesh –

the Fifty-fifth Amendment with effect from 20 February 1987;

g. Article 371-I – special provisions for Goa – the Fifty-sixth Amendment

with effect from 30 May 1987; and

h. Article 371-J – special provisions for the State of Karnataka – the

Ninety-Eighth Amendment with effect from 1 October 2013.

301. Prior to the Seventh Amendment to the Constitution in 1956, Article 1(1)

provided that India, that is Bharat, shall be a Union of States. Article 1(2)

stipulated that the States and its territories would be those specified in Parts

A, B and C of the First Schedule. Article 1(3) had originally provided that the

territory of India shall comprise of:

a. the territories of the States;

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210

b. the territories specified in Part D of the First Schedule; and

c. such other territories as may be acquired.

302. With the Seventh Amendment in 1956, Article 1(2) was substituted to provide

that the States and the territories shall be as specified in the First Schedule.

Clause (3) was amended so as to substitute the Union Territories specified in

the First Schedule. With the creation of new States, their special needs were

comprehended, as we have seen, with the insertion of special provisions in

relation to those States. Some of the temporary and transitional provisions

which were made at the adoption of the Constitution were repealed, as we

have seen above, as the new institutions of government under democratically

elected constitutional functionaries and legislatures took effect after the

adoption of the Constitution. In understanding the provisions of Article 370

which is also comprised in Part XXI, a contextual analysis, as we have carried

out above, would shed some light over the nature of the provisions comprised

in the Part.

303. The marginal note to Article 370 was titled “Temporary provisions with respect

to the State of Jammu and Kashmir”. As we have already seen at the adoption

of the Constitution, Part XXI in which Article 370 was situated dealt with

‘temporary’ and ‘transitional’ provisions. Whether a marginal note to a

statutory provision can be utilised as an aid to interpretation is analysed in

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Justice G P Singh’s “Principles of Statutory Interpretation

239

”. According to the

Treatise:

“Although opinion is not uniform the weight of authority is in favour

of the view that the marginal note appended to a section cannot be

used for construing the Section. LORD MACNAGHTEN

emphatically stated: “It is well-settled that marginal notes to the

sections of an Act of Parliament cannot be referred to for the

purpose of construing the Act. The contrary opinion originated in a

mistake, and has been exploded long ago. There seems to be no

reason for giving the marginal notes in an Indian statute any greater

authority than the marginal notes in an English Act of Parliament”.

240

PATANJALI SHASTRI, J., after referring to the above case with

approval observed: “Marginal notes in an Indian statute, as in an Act

of Parliament, cannot be referred to for the purpose of construing

the statute.”

241

At any rate, there can be no justification for restricting

the section by the marginal note,

242

and the marginal note cannot

certainly control the meaning of the body of the section if the

language employed therein is clear.

243

”

304. Justice G P Singh however notes that :

“Some Indian cases also show that reference to marginal notes may

be permissible in exceptional cases for construing a section in a

statute.”

305. In Bengal Immunity Company Limited v. State of Bihar

244

, Chief Justice S

R Das, speaking for a seven-Judge Bench dealt with the interpretation of

Article 286 of the Constitution which forms a part of Part XXI of the

Constitution dealing with “Finance, Property, Contracts and Suits”. The Court

239

Edition, Pages 188-189

240

Balraj Kunwar v. Jagatpal Singh, ILR 26 All 392, p. 406 : 31 IA 132: 1 All LJ 384 (PC)

241

C.I.T. v. Ahmedbhai Umarbhai & Co., AIR 1950 SC 134, p. 141 : 1950 SCR 335; Board of Muslim Waqfs,

Rajasthan v. Radhakishan, AIR 1979 SC 289, pp. 295, 296 : (1979) 2 SCC 468; Kalawati Bai v. Soiryabai, AIR

1991 SC 1581, p. 1586 : (1991) 3 SCC 410; Guntaiah v. Hambamma, (2005) 6 SCC 228, pp. 233, 234 (para 11)

: AIR 2005 SC 4013. But see Uttam Das Chela Sunderdas v. Shiromani Gurdwara Prabandhak Committee, 1996

(4) Scale 608, pp. 613, 614 : AIR 1996 SC 2133, p. 2137 : (1996) 5 SCC 71 (para 16), where contrary view is

expressed. But it appears that the court in this case was dealing with ‘Heading’ and not ‘Marginal note’ and no final

opinion was expressed.

242

Emperor v. Sadashiv, AIR 1947 PC 82, P. 84 : 74 IA 89 : 48 Cri LJ 791.

243

Nalinakhya Bysack v. Shyam Sundar Haddar, AIR 1953 SC 148, p. 150 : 1953 SCR 533, Western India

Theatres Ltd. v. Municipal Corporation, Poona, AIR 1959 Sc 586, p. 589 : 1959 Supp (2) SCR 71; Nandini Satpathy

v. P.C. Dani, AIR 1978 SC 1025, p. 1039 : 1978 (2) SCC 424.

244

(1955) 2 SCR 603

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noted that Article 286 with several Articles is grouped under the heading

“miscellaneous financial provisions” in Chapter 1 of Part XXI. Moreover, it has

not found place in Part XI Chapter 1 which deals with legislative relations

including the distribution of legislative powers between Parliament and the

legislatures of States. Referring to marginal note to Article 286, Chief Justice

SR Das observed:

“The marginal note to Article 286 is “restrictions as to imposition on

tax on the sale or purchase of goods” which unlike the marginal

notes in Acts of the British Parliament, is part of the Constitution as

passed by the Constituent Assembly, prima facie furnishes some

clue as to the meaning and purpose of the Article.”

306. The Court, however, clarified that apart from the marginal note, the very

language of Article 286 made it abundantly clear that its purpose was to place

restrictions on the legislative powers of the State to impose taxes on the sale

or purchase or purchases of goods. The above observations indicate that the

marginal note to a provision of the Constitution being a part of the document

as adopted by the Constituent Assembly was held prima facie to furnish some

clue on the meaning and purpose of the provision.

307. Equally, the judgment can well be construed to mean that a marginal note by

itself will not control the plain meaning of the words used in the provision if

the language of the provision is clear in itself.

245

This was indeed the drift of

the judgment of Justice K S Hegde speaking for himself and Justice A K

245

The marginal note to Article 368 of the Constitution which was “procedure for amendment of the Constitution”

was substituted by the Twenty-fourth Constitutional Amendment with effect from 5 November 1971 to read “power

of Parliament to amend the Constitution and procedure therefore”.

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213

Mukherjea in Kesavananda Bharati Sripadagalvaru v. State of Kerala

246

Justice Hegde observed:

“620…To restate the position, Article 368 deals with the amendment

of the Constitution. The Article contains both the power and the

procedure for amending the Constitution. No undue importance

should be attached to the marginal note which says “Procedure for

amendment of the Constitution”. Marginal note plays a very little part

in the construction of a statutory provision. It should have much less

importance in construing a constitutional provision. The language

of Article 368 to our mind is plain and unambiguous. Hence we

need not call into aid any of the rules of construction about which

there was great deal of debate at the hearing. As the power to

amend under the Article as it originally stood was only implied, the

marginal note rightly referred to the procedure of amendment. The

reference to the procedure in the marginal note does not negative

the existence of the power implied in the Article.”

(emphasis supplied)

308. In interpretating the provisions of Article 370 as they stood prior to abrogation,

we begin with the following prefatory observations namely:

a. The heading of Part XXI in which Article 370 was comprised dealt with

“temporary and transitional provisions” originally and after the

amendment of the heading by the thirteenth Amendment with effect

from 1 December 1963, it deals with “temporary, transitional and special

provisions”;

b. The marginal note to Article 370 states that the Article deals with

“temporary provisions with respect to the State of Jammu and Kashmir”;

c. The heading of Part XXI of the Constitution (temporary and transitional

246

(1973) 4 SCC 225

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214

provisions) and the marginal note were a part of the Constitution as

originally adopted by the Constituent Assembly;

d. Following well-settled principles of law, the marginal note may prima

facie furnish some guidance on the purpose and intent underlying the

adoption of the provision but it cannot control the plain meaning of

Article 370 which must be deduced by interpreting all its provisions; and

e. While interpreting Article 370, regard must be had to the entire provision

and its parts ought not to be construed in a manner disconnected or

disjointed from the meaning and scheme of the provision in its entirety.

II. Interpretation of Article 370

309. Clause (1) of Article 370 begins with a non-obstante provision. The intent

underlying the adoption of this phrase in clause (1) is that what follows in sub

clauses (a) to (d) is intended to operate untrammelled by the other provisions

of the Constitution.

310. Sub-clause (a) of clause (1) stipulated that the provisions of Article 238 shall

not apply in relation to the State of Jammu and Kashmir. Article 238 as

originally adopted was placed in Part VII of the Constitution which dealt with

the States in Part B of the First Schedule. Article 238 stipulated that Part VI

of the Constitution which dealt with the States in Part A of the First Schedule

would apply to the Part B States subject to modifications and omissions. Part

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215

VI inter alia contained provisions for the Executive (Chapter II), the State

Legislature (Chapter III), the legislative power of the Governor (Chapter IV),

the High Courts in the States (Chapter V), and the Subordinate Courts

(Chapter VI). Since the Constitution originally incorporated Part A and Part B

States in its First Schedule separately, Part VI contained provisions for the

Part A States while Article 238 which was the sole provision in Part VII

stipulated that Part VI would apply to the Part B States subject to

modifications and omissions. Included amongst them was that the word

Governor shall stand substituted by the Rajpramukh. Once the distinction

between Part A and Part B States was effaced by the Seventh Amendment

to the Constitution in 1956, Part VII itself which comprised of Article 238 was

repealed. Correspondingly, the title of Part VI was amended so as to delete

the reference to Part A States. The effect of clause (1)(a) of Article 370 was

that though the State of Jammu and Kashmir was a Part B State at the

adoption of the Constitution, the provisions of Article 238 did not apply to the

State. As a consequence, Part VI had no application to the State of Jammu

and Kashmir. With the Seventh Amendment to the Constitution in 1956,

Article 152 was amended to insert the words “does not include the State of

Jammu and Kashmir”

247

. Article 152 indicated that after the obliteration of the

distinction between Part A and Part B States (as a consequence of which

247

Article 152

“In this Part, unless the context otherwise requires, the expression “State” does not include the State of Jammu

and Kashmir”.

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216

Jammu and Kashmir was classified as a State in the First Schedule), Part VI

would still not apply to it.

311. Sub-clause (b) of clause (1) of Article 370 limited the power of Parliament to

make laws for the State of Jammu and Kashmir. It stipulated in sub-clause

(b)(i) of clause (1) that the Dominion Legislature may enact laws on those

matters in the Union and the Concurrent Lists of the Seventh Schedule which

as declared by the President in consultation with the Government of the State

to correspond to matters specified in the IoA. Sub-clause (b)(ii) covered “such

other matters” in the said Lists, that is, the Union and Concurrent Lists which

the President could with the concurrence of the Government of the State

‘specify by order’. Sub-clause (b), in other words, dealt with the specification

of matters by the President among the subjects comprised in the Union and

the Concurrent Lists over which Parliament would have power to make laws

with respect to Jammu and Kashmir. Sub-clause (b)(i) provided for

consultation by the President with the State Government while sub-clause

(b)(ii) provided for the concurrence of the State Government.

312. Both the above sub-clauses dealt with the scope of the power of Parliament

to make laws for Jammu and Kashmir with respect to matters in the Union

and the Concurrent Lists. With respect to matters which were set out in the

IoA, a consultative process with the State Government was envisaged.

However, where the matters to be specified in the Union and the Concurrent

Lists were not comprehended in the IoA as matters on which Parliament could

legislate, the concurrence of the State Government was required. The IoA

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conferred power on Parliament to enact laws on four subjects namely

defence, external affairs, communications and ancillary matters. The

Explanation below sub-clause (b)(ii) indicated that for the purposes of the

Article the Government of the State would mean the person for the time being

recognized by the President as the Maharaja of Jammu and Kashmir acting

on the advice of the Council of Ministers under the Proclamation of the

Maharaja dated 5 March 1948. Though the Explanation appears immediately

below sub-clause (b)(ii), it is evident from the use of expression “for the

purposes of this Article” that the Explanation applies to the entirety of Article

370.

313. Sub-clause (c) of Article 370(1) provided that Article 1 and Article 370 “shall

apply in relation to that State”. As a consequence, Jammu and Kashmir

became on the adoption of the Constitution on 26 January 1950 an integral

part of “India that is Bharat” which as Article 1(1) stipulates “shall be a Union

of States”. The provisions of Article 370(1)(c) made it clear that Jammu and

Kashmir was governed by Article 1. The necessary consequence of the

provision is that it is an integral part of the territory of India. Likewise, sub-

clause (c) of clause (1) indicates that Article 370 shall apply in relation to the

State.

314. In terms of sub-clause (d) of clause (1), such of the “other provisions” of the

Constitution would apply to the State of Jammu and Kashmir subject to such

exceptions and modifications as the President may by order specify. Sub-

clause (d) was followed by two provisos: the first proviso stipulated that a

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Presidential Order which related to matters specified in the IoA referred to in

“paragraph (i) of sub-clause (b)” shall be issued only with the consultation with

the Government of the State”; and the second proviso stipulated that a

Presidential Order relating to matters other than those specified in the first

proviso would be issued only with the concurrence of the State Government.

Consultation with the State Government under the first proviso and its

concurrence under the second proviso was mandatory. This is evident from

the fact that both the provisos used the expression “No such order … shall be

issued except …” in consultation or, as the case may be, with the concurrence

of the State Government. Sub-clause (d), in other words, empowered the

President to issue an order in terms of which other provisions (other than

Articles 1 and 370) of the Constitution shall apply to Jammu and Kashmir.

However, such other provisions would be subject to modifications and

exceptions. Where the provisions corresponded to matters specified in the

IoA as falling within the domain of the Dominion Legislature, consultation was

envisaged while in respect of other matters concurrence of the State

Government was made mandatory.

315. Clause (2) of Article 370 envisaged that where the Government of the State

of Jammu and Kashmir had given its concurrence under sub-clause (b)(ii) of

clause (1) or under the second proviso to sub-clause (d) “before the

Constituent Assembly for the purpose of framing the Constitution of the State

is convened”, it shall be placed before the Constituent Assembly “for such

decision as it may take thereon”. Clause (2), in other words, recognized that

the Constituent Assembly was being convened for framing the Constitution

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for the State of Jammu and Kashmir. If the State Government as defined in

the Explanation had concurred either with (a) the proposal of the Union to

specify matters in the Union or Concurrent Lists other than those recognized

by the IoA as matters over which Parliament could make laws; or (b) the

application of the provisions of the Constitution to the State with modifications

and exceptions other than those relatable to the IoA referred to in sub-clause

(b)(i), it had to be placed before the Constituent Assembly for its decision.

Evidently, therefore, the concurrence of the State Government on matters

falling within the ambit of sub-clause (b)(ii) or the second proviso to sub-

clause (d) was not final but would be governed by the decision of the

Constituent Assembly.

316. Clause (3) of Article 370 empowered the President to declare by a public

notification that the Article itself “shall cease to be operative” or would only be

“operative with such exceptions and modifications” as may be specified and

with effect from the date as specified. The proviso to clause (3), however,

required the recommendation of the Constituent Assembly of the State

“referred to in clause (2)”. The proviso specified that the recommendation of

the Constituent Assembly “shall be necessary before the President issues

such a notification”. Clause (3) contains a non-obstante provision which

overrides all the earlier provisions of clauses (1) and (2).

317. Several salient features emerge from Article 370, read as a whole. These

features (apart from the marginal note which has been discussed earlier) must

be noticed at this stage:

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a. Article 370 incorporated two non-obstante clauses. The first non-

obstante clause in clause (1) operates with respect to the entirety of the

Constitution (“notwithstanding anything in this Constitution”). The

second non-obstante clause prefaces clause (3) and its effect is to

override the earlier provisions of the Article (“notwithstanding anything

in the foregoing provisions of this Article”). The effect of the non-obstante

provision in clause (1) is that sub-clauses (a), (b), (c) and (d) which follow

would govern the State of Jammu and Kashmir untrammelled by any of

the provisions of the Constitution. The effect of the non-obstante

provision in clause (3) is that the Presidential power to abrogate Article

370 either in its entirety by declaring that it shall cease to be operative

or to specify that it would be operative only with such exceptions and

modifications from a date that would be specified, overrides all the

previous provisions contained in the Article, including the non-obstante

clause in Clause 1. The plain consequence is that once the President

exercises the power conferred by clause (3), the restrictions which are

imposed in clauses (1) and (2) would cease to govern the State;

b. Clause (1) of Article 370 specifies:

i. a specific provision of the Constitution which shall not apply to the

State of Jammu and Kashmir (Article 238);

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ii. two specific provisions of the Constitution which shall apply to the

State (Article 1 and Article 370 itself);

iii. limitations on the power of Parliament to enact laws for the State

on matters which fall in the Union and Concurrent Lists of the

Seventh Schedule;

iv. the requirement of consultation for one set of matters (those

relatable to the IoA) and of concurrence of the State Government

for the other set of matters(matters not relatable to the IoA); and

v. the Presidential power to apply other provisions of the Constitution

to the State subject to exceptions and modifications with the

condition of consultation for matters falling in the ambit of sub-

clause (b)(i) and concurrence for all other matters. If the

concurrence of the State Government was given before the

convening of the Constituent Assembly for framing the Constitution

of the State, it had to be placed before the Assembly for its decision.

c. Article 370 also expressly recognizes:

i. in clause (b)(i) “the Instrument of Accession governing the

accession of the State to the Dominion of India”;

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ii. the convening in the future of a Constituent Assembly “for the

purpose of framing the Constitution of the State” (clause (2));

iii. the recommendation in terms of the proviso to clause (3) had to be

of the Constituent Assembly of the State “referred to in clause (2)”

meaning thereby that it was that Constituent Assembly whose

recommendation was envisaged to be necessary for the exercise

of the Presidential power under the substantive part of clause (3);

and

iv. that the Government of the State would be the Maharaja of Jammu

and Kashmir acting on the advice of the Council of Ministers “for

the time being in office” under the Maharaja’s proclamation dated

5 March 1948;

d. Article 370 has used four distinct phrases in regard to the role of the

State Government or, as the case may be, of the Constituent Assembly

of the State antecedent to the adoption of certain action by the President,

namely:

i. consultative role. The expression consultation with the

Government of the State is used in sub-clauses (b)(i) and the first

proviso to sub-clause (d);

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ii. concurrence of the State Government on certain matters (the

expression as used in sub-clause (b)(ii) and the second proviso to

clause (d));

iii. placing the concurrence of the State Government before the

Constituent Assembly if it was granted before the convening of the

Assembly, for its decision; and

iv. the recommendation of the Constituent Assembly of the State

under the proviso to clause (3) formed for the purpose of framing

the Constitution of the State.

318. The use of distinct phrases – consultation, concurrence, decision and

recommendation indicates that each of these phrases has been intended by

the framers to have a distinct connotation. Consultation postulates the

seeking of the view of the State government. Concurrence postulates an act

of affirmative acceptance of the proposal or, in other words, the agreement of

the State government. A decision postulates the conclusion reached by the

Constituent Assembly on the concurrence granted by the State government

before its convening. Recommendation in the proviso to clause (3) would

postulate the view of the Constituent Assembly being forwarded to the

President before the exercise under Article 370(3).

319. Article 370 has used the expression “exceptions and modifications” at two

distinct places: first, in sub-clause (d) of clause (1); and second in clause (3).

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In both cases, the power to specify exceptions and modifications is entrusted

to the President; in the case of sub-clause (d) in relation to the application of

the other provisions of the Constitution in relation to the State and in clause

(3), if the President orders that the provisions of Article 370 shall cease to be

operative. The exercise of power under sub-clause (d) of clause (1) is subject

to the conditions specified in the two provisos while the exercise of the power

under clause (3) is subject to the proviso of that clause.

III. Inference

320. There are intrinsic reasons in Article 370 which support the view that the

provision was not intended by the framers to be a permanent feature of the

Constitution at the date of the adoption of the Constitution. Part XXI of which

Article 370 is a part specifies temporary and transitional provisions. In certain

cases, the temporary provisions contained in Part XXI had a restriction with

reference to the time over which they would operate. These include Articles

369 (specifying a five year period for Parliament to enact laws); Article 371

(as originally enacted conferring a power on Parliament to make law for a

period of ten years or a shorter or longer period governing the Part B States);

Article 372 (3) (giving the President a period of two years initially and later by

amendment three years to make adaptations and modifications to laws in

force in the Territory of India); Article 372(a) (the power of the President to

make adaptations to any law in force before the Seventh Amendment by an

order before 1 November 1957); Article 373 (the power of the President to

make an order in respect of the persons under preventive detention until

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Parliament enacted a law under Article 22(7) or until the expiration of one year

from the commencement of the Constitution). In other cases, such as under

Article 392, the President was conferred with the power to remove difficulties

particularly involving the transition from the Government of India Act 1935 to

the Constitution in terms of which the President could direct that the

Constitution itself would apply subject to such adaptations whether by way of

modification, addition or omission until the first meeting of Parliament duly

constituted took place. Part XXI also contained provisions for the continuation

of the Federal Court and its Judges and the transfer of proceedings (Article

374), other courts, officers, and authorities (Article 375), the continuation of

High Courts and the judges (Article 376), the Comptroller and Auditor General

of India (Article 377), and Public Service Commissions (Article 378). Likewise,

Articles 379 to 386 provided for a provisional Parliament, the election of the

President by the Constituent Assembly, Council of Ministers of the President,

provisional legislatures, Governors and Council of Ministers in the States. All

these provisions whether defined with reference to time or otherwise were

temporary or, as the case may be, transitional in nature.

321. Article 370 was couched amidst other temporary and transitional provisions

with a marginal note which indicates that its provisions were temporary. Article

370 was adopted at a point of time when the Maharaja of Jammu and Kashmir

had acceded to the Dominion of India by executing an IoA. Textually, Article

370(1)(c) made it abundantly clear that Article 1 was to apply in its entirety to

the State unlike other provisions of the Constitution, the application of which

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was to be governed by the requirement of consultation or, as the case may

be, concurrence.

322. On 26 January 1950, when the Constitution was adopted, the State of Jammu

and Kashmir became an integral part of the territory of India. The mandate of

Article 1 is that “India that is Bharat shall be a Union of States”. The States

and their territories would be those specified in Parts A, B and C of the First

Schedule. The State of Jammu and Kashmir was a Part B State on the date

of the adoption of the Constitution. With the adoption of the Seventh

Amendment to the Constitution which obliterated the distinction between

Parts A, B and C States, Jammu and Kashmir became a State in the Union

of States. In other words, Article 370 of the Constitution read together with

Article 1 leaves no manner of doubt that the integration of Jammu and

Kashmir as a part of the nation, which in itself was a Union of States was

complete. Any interpretation of Article 370 cannot postulate that the

integration of Jammu and Kashmir with India was temporary.

v. The effect of dissolution of the Constituent Assembly of Jammu and

Kashmir on the scope of powers under Article 370(3)

323. The principal argument urged by Mr Kapil Sibal, learned Senior Counsel

appearing on behalf of the petitioners

248

is that Article 370 was only temporary

when the Constituent Assembly of the State was in existence, that is, between

1951 to 1957. The power under Article 370(3) ceased to exist after the

dissolution of the Constituent Assembly. However, the respondents argue

248

W.P. (C) No. 1037 of 2019: Mohd Akbar Lone & Anr. v. Union of India & Ors.

PART E

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that the power under Article 370(3) to declare that the provision ceases to

exist or shall exist with such modification subsisted even after the Constituent

Assembly ceased to exist. The respondents argue that it is because the

Constituent Assembly under the proviso to Article 370(3) only had the power

to make recommendations which were not binding on the President and that

the President could always unilaterally exercise the power under Article

370(3).

324. Thus, the question which needs to be addressed is whether Article 370

assumed permanency after the dissolution of the Constituent Assembly of

Jammu and Kashmir or whether it was by its very nature, object and purpose

temporary. This Court must take into account the inference drawn on an

analysis of the historical context of including Article 370 and the text,

placement and marginal note of the provision while deciding this issue. We

have concluded above that:

a. Article 370 by its text, placement and marginal note is a ‘temporary’

provision; and

b. A special provision in the form of Article 370 was included for the State

of Jammu and Kashmir because of three special circumstances, which

were that (a) the Maharaja of Jammu and Kashmir had accepted the

legislative competence of the Union on three limited subjects along with

certain ancillary powers; (b) the Constituent Assembly of the State had

not been convened before the Constitution of India was adopted to

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expand the scope of legislative competence and ratify the Constitution;

and (c) the impending war in Jammu and Kashmir at the time of framing

the Constitution of India.

a. The judgment in Sampath Prakash

325. In Sampath Prakash v. State of Jammu and Kashmir

249

, proceedings

under Article 32 of the Constitution were initiated challenging the validity of

an order of detention under the Jammu and Kashmir Preventive Detention

Act 1964. The detention had been continued without making a reference to

the Advisory Board, the State having purported to act under Section 13A. The

provisions of Article 13A were challenged on the ground that they were ultra

vires Article 22 of the Constitution. However, Article 35-C which was

introduced by CO 48 of 1954 in exercise of power under Article 370(1)(d) had

granted immunity to a law relating to preventive detention in Jammu and

Kashmir against invalidity on the ground that it violated any right under Part

III of the Constitution for a period of five years. The period of five years was

extended subsequently to ten and fifteen years by CO 59 of 1959 and CO 69

of 1964 respectively. The two modifications made in 1959 and 1964 were

challenged on the ground that they were ultra vires the power of the President

under Article 370(1).

326. The petitioner in that case argued that Article 370 contained temporary

provisions which would cease to be effective after the Constituent Assembly

249

(1969) 2 SCR 365

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of the State had ceased to exist. Reliance was placed on the speech of Shri

N Gopalaswami Ayyangar when he moved Draft Article 306A in the

Constituent Assembly which corresponded to Article 370. Since the

Constitution of the State came into force on 26 January 1956, the two COs of

1959 and 1964 were challenged on the ground that they were void.

327. The historical background of Article 370, which was discernible from the

speech of Gopalaswamy Ayyangar in the Constituent Assembly was

summarized in the judgment of the Constitution Bench thus:

“4…(1) that there had been a war going on within the limits of

Jammu & Kashmir State;

(2) that there was a cease-fire agreed to at the beginning of the year

and that cease-fire was still on;

(3) that the conditions in the State were still unusual and abnormal

and had not settled down;

(4) that part of the State was still in the hands of rebels and enemies;

(5) that our country was entangled with the United Nations in regard

to Jammu & Kashmir and it was not possible to say when we would

be free from this entanglement;

(6) that the Government of India had committed themselves to the

people of Kashmir in certain respects which commitments included

and undertaking that an opportunity be given to the people of the

State to decide for themselves whether they would remain with the

Republic or wish to go out of it; and

(7) that the will of the people expressed through the Instrument of a

Constituent Assembly would determine the Constitution of the State

as well as the sphere of Union jurisdiction over the State.”

Rejecting the challenge, the Court held:

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“5. We are not impressed by either of these two arguments

advanced by Mr Ramamurthy. So far as the historical background

is concerned, the Attorney-General appearing on behalf of the

Government also relied on it to urge that the provisions of Article

370 should be held to be continuing in force, because the situation

that existed when this article was incorporated in the Constitution

had not materially altered, and the purpose of introducing this article

was to empower the President to exercise his discretion in applying

the Indian Constitution while that situation remained unchanged.

There is considerable force in this submission. The legislative

history of this article cannot, in these circumstances, be of any

assistance for holding that this article became ineffective after the

Constituent Assembly of the State had framed the Constitution for

the State.”

The Constitution Bench then held that there were “much stronger reasons” for

holding that the provisions of Article 370 continued in force and remained effective

even after the Constituent Assembly of the State had adopted the Constitution for

the State because the Constituent Assembly did not in exercise of the power

under the proviso to Article 370 recommend that the provision shall cease to exist.

Rather the Constituent Assembly recommended that Article 370 must operate with

a modification of the Explanation to the provision:

“7. There are, however, much stronger reasons for holding that the

provisions of this article continued in force and remained effective

even after the Constituent Assembly of the State had passed the

Constitution of the State. The most important provision in this

connection is that contained in clause (3) of the article which lays

down that this article shall cease to be operative or shall be

operative only with such exceptions and modifications and from

such date as the President may specify by public notification,

provided that the recommendation of the Constituent Assembly of

the State referred to in clause (2) shall be necessary before the

President issues such a notification. This clause clearly envisages

that the article will continue to be operative and can cease to be

operative only if, on the recommendation of the Constituent

Assembly of the State, the President makes a direction to that effect.

In fact, no such recommendation was made by the Constituent

Assembly of the State, nor was any order made by the President

declaring that the article shall cease to be operative. On the

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contrary, it appears that the Constituent Assembly of the State made

a recommendation that the article should be operative with one

modification to be incorporated in the Explanation to clause (1) of

the article. This modification in the article was notified by the

President by Ministry of Law Order CO 44 dated 15th November,

1952, and laid down that, from 17th November, 1952, the article was

to be operative with substitution of the new Explanation for the old

Explanation as it existed at that time. This makes it very clear that

the Constituent Assembly of the State did not desire that this article

should cease to be operative and, in fact, expressed its agreement

to the continued operation of this article by making a

recommendation that it should be operative with this modification

only.”

328. The Constitution Bench also adverted to the proviso to Article 368 added by

a Constitutional Order in relation to the State of Jammu and Kashmir under

which an amendment to the Constitution made in accordance with Article 368

would not have any effect in relation to that State unless applied by the Order

of the President under Article 370 (1). In view of these provisions, the Court

held that “Article 370 of the Constitution has never ceased to be operative

and there can be no challenge on this ground to the validity of the orders

passed by the President in exercise of the powers conferred by this Article”.

329. The petitioners also contended that once any provision of the Constitution

was applied to the State of Jammu and Kashmir with modifications and

exceptions under Article 370(1)(d), the power under Article 370 would not

cover any modification in the Constitution as applied. That is, further

modifications to the provisions as applied to the State cannot be made.

Rejecting the submission, the Court held that the power under Article

370(1)(d) to issue an order applying provisions of the Constitution of India to

Jammu and Kashmir included the power to make modifications. Reference

was made to Section 21 of the General Clauses Act for this purpose which

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states that the power to issue a notification includes the power to amend the

notification:

“12. The legislative history of this article will also fully support this

view. It was because of the special situation existing in Jammu &

Kashmir that the Constituent Assembly framing the Constitution

decided that the Constitution should not become applicable to

Jammu & Kashmir under Article 394, under which it came into effect

in the rest of India, and preferred to confer on the President the

power to apply the various provisions of the Constitution with

exceptions and modifications. It was envisaged that the President

would have to take into account the situation existing in the State

when applying a provision of the Constitution and such situations

could arise from time to time. There was clearly the possibility that,

when applying a particular provision, the situation might demand an

exception or modification of the provision applied; but subsequent

changes in the situation might justify the rescinding of those

modifications or exceptions. This could only be brought about by

conferring on the President the power of making orders from time to

time under Article 370 and this power must, therefore, be held to

have been conferred on him by applying the provisions of Section

21 of the General Clauses Act for the interpretation of the

Constitution.”

The Constitution Bench held that the extension of the period of five years

under Article 35-C to ten years and fifteen years respectively by the C.Os of

1959 and 1964 “is justified prima facie by the exceptional state of affairs

which continue to exist as before”. Consequently, it was held that in view of

the validity of COs of 1959 and 1964, the validity of the Act could not be

challenged on the ground that any of its provisions were inconsistent with

Article 22 of the Constitution.

330. The issue before the Constitution Bench of this Court in Sampath Prakash

(supra) was whether Article 370 automatically ceased to exist when the

Constituent Assembly of the State was dissolved after it framed the

Constitution of Jammu and Kashmir. This Court held in the negative because

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the special conditions which warranted the introduction of Article 370

continued to exist and the Constituent Assembly of the State had not

recommended that the provision must cease to exist in exercise of the power

under the proviso to Article 370(3). In that case, the issue was whether the

power under Article 370(1)(d) ceased to exist upon the Constituent Assembly

ceasing to exist. The issue was answered with reference to Article 370(3),

that the power under Article 370(1) continues to exist because the Constituent

Assembly of the State did not in exercise of power under 370(3) recommend

that Article 370 must cease to exist. However, the issue of whether the power

under Article 370(3) could be exercised after the Constituent Assembly of the

State ceased to exist to did not arise for the Court’s consideration in that case.

This issue must be decided by this Bench.

b. The limited power of the Constituent Assembly under Article 370

331. The argument of the petitioners that Article 370 has attained permanence

after the Constituent Assembly of Jammu and Kashmir ceased to exist is

premised on the understanding that the constitutional body had unbridled

power to alter the constitutional integration of the State with the Union. In the

sections below, we will be analysing if the Constituent Assembly of Jammu

and Kashmir had such unrestrained power by referring to the constitutional

history and structure of the provision.

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I. The structure of Article 370(1) and 370(2)

332. Article 370(1) required the concurrence of the Government of the State for

both applying the provisions of the Constitution and expanding the ambit of

the legislative competence of the Union over the State.

333. The power under Article 370(1)(d) had three components. Firstly, the

President was empowered to notify which of the provisions other than Articles

1, 238 and 370 shall apply to the State of Jammu and Kashmir. Secondly, the

provisions of the Constitution need not be applied to the State of Jammu and

Kashmir in the same manner as they applied to the rest of the States since

the President was conferred with the power to prescribe modifications and

exceptions to the provision. Thirdly, such an order could be issued by the

President only with either the concurrence or the consultation of the

Government of the State depending on whether the provision related to the

matters in the IoA or otherwise. This provision indicates that upon the

adoption of the Constitution, all provisions of the Constitution did not

automatically apply to the State of Jammu and Kashmir. The Government of

the State had the power to grant its concurrence or otherwise on which of the

other provisions would apply to the State of Jammu and Kashmir. Those other

provisions could also be made applicable with such exceptions and

modifications.

334. To understand the scope of power under Article 370(1)(d), it is necessary

that we identify the breadth of the provision. Would it be open to the

Government of the State to not give its concurrence for the application of any

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other provision other than Article 1 and 370? That is, omit all other provisions

of the Constitution in its application to Jammu and Kashmir? Could the

Government of the State have chosen to omit the application of Part III in the

State of Jammu and Kashmir or ‘modify’ the provisions to the extent that the

core of the provision is lost? Could a Constitutional order have been issued

under Article 370(1)(d) omitting the application of Article 32 to Jammu and

Kashmir or omitting the jurisdiction of the Supreme Court over the State of

Jammu and Kashmir?

335. In Puranlal Lakhanpal I v. President of India

250

, the State of Jammu and

Kashmir detained the petitioner under Section 3 of the Jammu and Kashmir

Preventive Detention Act on 4 October 1955. This gave rise to the institution

of a petition seeking a writ of habeas corpus. The order of detention was

issued “with a view to prevent him from acting in any manner prejudicial to the

security of the State.” The order of detention denied to the petitioner the

grounds of detention in terms of the proviso to Section 8(1). The challenge

was that the terms of the Section were inconsistent with Articles 21 and 22 of

the Constitution and therefore void.

336. On 14 May 1954, the President, acting under Article 370(1) with the

concurrence of the State government, issued the Constitution (Application to

Jammu and Kashmir) Order 1954 applying certain specific provisions of the

Constitution to the State of Jammu and Kashmir subject to modifications. In

clauses (4) and (7) of Article 22, the legislature of the State of Jammu and

250

1955 (2) SCR 1101; “Puranlal Lakhanpal I”

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Kashmir was substituted for Parliament so that the former was competent to

legislate for preventive detention. Moreover, Article 35(c) was added, the

effect of which was that the provisions of the Jammu and Kashmir Preventive

Detention Act, insofar as they were in consistent with Part III of the

Constitution, would be valid for a period of five years from the commencement

of the Order. The exception which was made by Article 35(c) was co-

extensive with the life of the State legislation which had a limited life of five

years. In this backdrop, Justice BP Sinha (as the learned Chief Justice then

was) speaking for the Constitution Bench held that so long as the State

legislation continued in force, the provisions of Articles 21 and 22 of the

Constitution, insofar as they were inconsistent with the Act “are out of the

way.” Therefore, the Court held that the provisions of Section 8 could not be

held to be unconstitutional as being inconsistent with Part III. However, it was

urged on behalf of the petitioner that Article 35(c) which was inserted by the

CO of 1954 was in excess of the powers conferred on the President by Article

370. Rejecting the argument, the Constitution Bench held:

“8. … It is manifest that Article 370(1)(c) and (d) authorizes the

President by Order to specify the exceptions and modifications to

the provisions of the Constitution (other than Articles 1 and 370)

subject to which the Constitution shall apply to the State of Jammu

and Kashmir. Clause (c) as indicated above has been added to

Article 35 of the Constitution only so far as the State of Jammu and

Kashmir is concerned. Section 8 of the Act is not in excess of or

inconsistent with the provisions of clause (c) so added to Article 35

of the Constitution. That being so the orders as served upon the

petitioner are not inconsistent with or in excess of such provisions

of Part III of the Constitution as apply to the State of Jammu and

Kashmir. It must therefore be held that the petitioner was not entitled

to know the grounds upon which he had been detained beyond what

is disclosed in the order itself.”

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337. The Constitution Bench, therefore, held that

a. Article 370(1) empowered the President to apply the provisions of the

Constitution to the State of Jammu and Kashmir with modifications and

exceptions with the concurrence of the State government;

b. The C.O of 1954 was issued in exercise of the power conferred by

Article 370(1);

c. Article 35(c) was inserted by the CO of 1954 pursuant to the exercise

of that power;

d. The denial of the grounds for detention in terms of the proviso to Section

8 was valid; and

e. In view of the provisions of Article 35(c) as inserted by the CO of 1954,

the challenge to Section 8 of the State legislation on the ground that it

was inconsistent with Articles 21 and 22 of the Constitution could not

be sustained.

338. Puranlal Lakhanpal II v. The President of India

251

involved a challenge to

the constitutional validity of the Constitution (Application to Jammu and

Kashmir) Order 1954 made by the President under Article 370(1). The

petitioner was registered as an elector in the Parliamentary Constituency of

Delhi and claimed a right to stand for election from any Parliamentary

Constituency in the country. The State of Jammu and Kashmir had six seats

in the Lok Sabha. Ordinarily, under Article 81(1), election to these seats would

have taken place by a direct election from the territorial constituencies in the

251

1962 (1) SCR 688; “Puranlal Lakhanpal II”

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States. However, in relation to the State of Jammu and Kashmir, Article 81(1)

was modified by Paragraph 5(c) of CO of 1954 to indicate that the

representatives of the State in the Lok Sabha would be appointed by the

President on the recommendation of the Legislature of the State. The

challenge was to the substitution of a direct election to the Lok Sabha by

nomination made by the State Legislature.

339. K N Wanchoo, J. speaking for the Constitution Bench, held that Article 370

“recognizes the special position of the State of Jammu and Kashmir and that

is why the President is given the power to apply the provisions of the

Constitution to that State subject such exceptions and modifications as the

President may by order specify”. The submission was that in exercise of the

power under Article 370(1), the President could not amend the Constitution

so as to make a radical alteration in its provisions. In this context, reliance

was placed on the judgment in In re Delhi Laws Act

252

to urge that the

modification could not encompass a radical transformation. The Constitution

Bench ruled that there was no radical alteration of Article 81; while direct

election had been substituted by an indirect election by the State Legislature,

the element of election still remained. But assuming that the alteration made

by the CO was radical in nature, the Constitution Bench distinguished the

position in In re Delhi Laws Act (supra) which dealt with the power of

delegation to a subordinate authority which made subordinate legislation.

252

(1951) SCR 747

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Distinguishing the power of modification conferred on the President under

Article 370(1), the Court held:

“4… In the present case we have to find out the meaning of the word

“modification” used in Article 370(1) in the context of the

Constitution. As we have said already the object behind enacting

Article 370(1) was to recognise the special position of the State of

Jammu and Kashmir and to provide for that special position by

giving power to the President to apply the provisions of the

Constitution to that State with such exceptions and modifications as

the President might by order specify. We have already pointed out

that the power to make exceptions implies that the President can

provide that a particular provision of the Constitution would not apply

to that State. If therefore the power is given to the President to

efface in effect any provision of the Constitution altogether in

its application to the State of Jammu and Kashmir, it seems

that when he is also given the power to make modifications that

power should be considered in its widest possible amplitude.

If he could efface a particular provision of the Constitution altogether

in its application to the State of Jammu and Kashmir, we see no

reason to think that the Constitution did not intend that he

should have the power to amend a particular provision in its

application to the State of Jammu and Kashmir.”

(emphasis supplied)

The Court held that in the context of the Constitution it “must give the widest

effect to the meaning of the word modification used in Article 370(1) and in

that context, it includes an amendment” and that there was no reason to limit

the expression modifications only to those which did not make a radical

transformation.

340. In Puranlal Lakhanpal II (supra), this Court held that the power to make a

‘modification’ in Article 370(1) was not limited. It would include amendments

to provisions in their application to the State of Jammu and Kashmir including

the power to make radical transformation. Though modification includes the

power to amend or radically transform the provision, there are certain implied

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limits to the power. When the State of Jammu and Kashmir acceded to the

Dominion of India and the Maharaja issued a Proclamation ratifying and

adopting the Indian Constitution, there was a rupture of monarchic

governance and the simultaneous creation of a system of constitutional

governance. The State of Jammu and Kashmir by ratifying the Constitution

accepted the model of constitutional governance envisaged by the Indian

Constitution. Accession to India could not be merely a matter of territorial

integration to India without constitutional integration. Thus, there were certain

fundamental precepts or features of the Indian Constitution which could not

be abrogated by the exercise of the power of modification under Article

370(1)(d). For instance, there can be no deviation from a democratic form of

governance chosen for India. Similarly, it was not open to the State

Constituent Assembly to declare that the State of Jammu and Kashmir was

an independent sovereign country. The Constituent Assembly of Jammu and

Kashmir could fill in the details and provide a pattern of governance in the

state, consistent with the basic precepts of governance under the Constitution

of India. Indeed, the pattern of governance in Jammu and Kashmir mirrored

the governance under the articles of the Constitution of India. Though Part VI

of the Constitution was inapplicable to Jammu and Kashmir, the pattern of

constitutional governance under the State Constitution drew upon basic

precepts of parliamentary democracy under the Constitution of India.

341. Article 370(1) required the concurrence of the Government of the State and

not the concurrence of the Constituent Assembly of the State. Article 370(2)

stipulates that “if” the concurrence of the Government of the State is given

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before the Constituent Assembly of Jammu and Kashmir is convened, the

concurrence shall be placed before the Assembly for its decision. The

inclusion of Article 370(2) must be read with reference to the Explanation to

Article 370. The Explanation states that the Government of the State means

the person recognised by the President as the Maharaja of Jammu and

Kashmir acting on the advice of the Council of Ministers “for the time being in

office under the Maharaja’s Proclamation dated fifth day of March 1948.” The

Maharaja of Jammu and Kashmir by a Proclamation issued on 5 March 1948

appointed Sheikh Abdullah as the Head of Emergency Administration. The

Council of Ministers of the Emergency Administration was tasked to convene

the National Assembly based on Adult Suffrage. The Proclamation also notes

that the National Assembly would be tasked with framing the Constitution of

the State. Article 370(2) effectively meant that the decision which would be

taken by the Government of the State before the Constituent Assembly is

convened would be the decision of the emergency administration. The

purpose of Clause (2) was to subject the exercise of power by the emergency

administration to the democratic will of the people exercised through the

members of the Constituent Assembly. The Constitution Bench of this Court

in Sampath Prakash (supra) has recognised that the power under Article 370

extends even after the Constituent Assembly ceased to exist.

II. The structure of Article 370(3)

342. Article 370(3) vested the President with two powers: first, the power to

declare that Article 370 ceases to exists; and second the power to declare

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that Article 370 shall be operative with exceptions and modifications. The

effect of the President declaring under Clause (3) that Article 370 ceases to

exist is that provisions of the Constitution which apply to every other State in

the First Schedule would equally apply to the State of Jammu and Kashmir.

Article 370(3) was introduced with the purpose of enhancing constitutional

integration and not disintegration. The necessary consequence of the

exercise of this power is that the Constitution of Jammu and Kashmir would

cease to exist. Under Clause (3), the President also has the power to modify

Article 370. This includes the power of the President to remove the distinction

between matters in the IoA and otherwise or the power to apply all provisions

of the Constitution to the State of Jammu and Kashmir.

c. Inference

343. The proviso to Article 370(3) states that the “recommendation of the

Constituent Assembly referred to in Clause (2) shall be necessary before

the President issues such a notification”. The petitioners argue that the

President cannot exercise the power under Article 370(3) after the Constituent

Assembly of the State has ceased to exist because:

a. the recommendation is necessary before the President exercises

power under Article 370(3);

b. The recommendation of the Constituent Assembly is binding on the

President; and

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c. the recommendation must be of the Constituent Assembly referred

to in Clause (2) of Article 370 which refers to the Constituent

Assembly convened for the “purpose of framing the Constitution of

the State”. Thus, the recommendation of that Constituent Assembly

cannot be substituted with the recommendation of any other body.

344. The Constituent Assembly in exercise of the power under the proviso to

Article 370(3) did not recommend that Article 370 should cease to exist. The

Constituent Assembly recommended one modification of the Explanation to

Article 370 before it ceased to exist. The Government of the State was defined

as the person recognised by the President as the Maharaja of Jammu and

Kashmir acting on the aid and advice of the Council of Ministers. This

explanation was substituted to read that the Government of the State would

mean that person recognised as the Sadar-i-Riyasat by the President on the

recommendation of the Legislative Assembly of the State.

345. The petitioners argue that since the Constituent Assembly did not recommend

that Article 370 must cease to exist, the provision has attained permanence.

It was argued that the procedure to repeal the provision cannot be traced to

Article 370 after the Constituent Assembly ceased to exist but can only be

traced to Article 368 of the Constitution.

346. We do not agree with the submission for the following reasons:

a. The historical context in which Article 370 was included must be

recalled. The Constitution of India did not provide for the ratification of

the Constitution by the Indian States. It was decided by the Ministry of

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States that the Ruler of each Indian State must issue a Proclamation

ratifying the Constitution on the recommendation of the Constituent

Assembly, where such body existed. In States where the Constituent

Assembly was not convened by then, the Ruler of the State was to issue

a Proclamation accepting the Constitution. However, when a

Constituent Assembly was convened in those States, the Constituent

Assembly could make a recommendation for the modification of the

Constitution as it applied to the State and such a recommendation

would be “earnestly considered” by the Union. Since the Constituent

Assembly of Jammu and Kashmir had not yet been constituted when

the Constitution of India was adopted, the proviso to Article 370(3)

merely encapsulated the ratification process as decided by the Ministry

of States. The words “recommendation of the Constituent Assembly

referred to in Clause (2) shall be necessary before the President

issues such a notification” as it appears in the proviso to Article 370(3)

must be read in this context. Thus, the recommendation of the

Constituent Assembly was not binding on the President to begin with;

b. Article 370 was introduced to serve two purposes: the special

circumstances in the State in view of the impending war and the

absence of a Constituent Assembly in the State when the Constitution

of India was adopted. This purpose is discernible not just from the

historical context but also from the provisions of Article 370. If Article

370 was introduced only for the purpose of ratification of the

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Constitution of India and expanding the scope of legislative

competence, the provision would have clearly and unequivocally

granted such a power to the Constituent Assembly alone. Rather, the

provision grants the power to the Government of the State in terms of

Article 370(1). Similarly, Article 370 also restricts the application of the

Constitution to the State of Jammu and Kashmir. This was evidently

included to deal with the special circumstances in the State;

c. The Constituent Assembly, upon being convened, exercised power

under Article 370. Though the body ceased to exist, only one of the

special circumstances for which the provision was introduced ceased.

However, the other circumstance (that is, special circumstances

because of the climate in the State) for which Article 370 was introduced

subsisted even after the Constituent Assembly ceased to exist. This is

recognised by the judgment of the Constitution Bench in Sampath

Prakash (supra);

d. The dissolution of the Constituent Assembly of the State would not

impact the substantive power vesting in the President under Clause 3.

At the time of framing of the Constitution of India, it was obviously within

contemplation that the Constituent Assembly of Jammu and Kashmir

was formed for framing the Constitution for the State. It was not

intended to be a permanent body but a body with a specific remit and

purpose. The power conferred by the proviso to Article 370(3) was

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hence something which would operate in a period of transition when the

Constituent Assembly of Jammu and Kashmir was formed and was in

existence, pending the drafting of the State Constitution;

e. The President in exercise of the power under Article 370(1)(d) could not

make radical changes to the provisions of the Constitution of India as it

applies to Jammu and Kashmir. If the President exercises the power

under Article 370(3) issuing a notification that Article 370 ceases to

exist, the State of Jammu and Kashmir would be fully constitutionally

integrated with India similar to the other States. So, the power under

Article 370(1) and Article 370(3) even when exercised to its fullest

extent does not freeze the system of integration contemplated by Article

370. It was intended to enhance constitutional integration between the

Union and the State of Jammu and Kashmir. Holding that the power

under Article 370(3) cannot be exercised after the dissolution of the

Constituent Assembly would lead to freezing of the integration contrary

to the purpose of introducing the provision; and

f. If the contention of the petitioners on the interpretation of Article 370

vis-à-vis the dissolution of the Constituent Assembly is accepted then

Article 370(3) would become redundant and the provision would lose its

temporary character. This would be contrary to holding that Article 370

is a temporary provision.

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347. It could be argued that an interpretation which renders Article 370(3)

redundant does not make the provision permanent because Parliament in

exercise of its constituent power under Article 368 could repeal the provision.

This argument misses the scope of temporary and transitional provisions.

Article 368 states that Parliament in exercise of its constituent power may

“amend by way of addition, variation or repeal any provision of the

Constitution”. Thus, all provisions of the Constitution are amenable to change.

This power is only subject to the basic structure challenge. However, a

provision does not attain a temporary character merely because it can be

amended. A provision is temporary when the provision ceases to exist even

without the exercise of the amending power either through the lapse of time

or the absence of certain conditions. The provision could be temporary

because of the time frame, that is, the provision states it would cease to have

effect after the lapse of a particular time period or it could be temporary in

view of the existence of specific circumstances. If Article 370 can only be

repealed in the same manner as other provisions which are not placed within

Part XXI, the distinction between temporary and other provisions is lost.

348. The petitioners also contended that reading the power under Article 370(3)

independent of the proviso would lead to an internal interpretative

inconsistency. It was argued that the President could not unilaterally exercise

power under Article 370(1) by which the provisions of the Constitution are

applied to the State of Jammu and Kashmir but the President could

unilaterally extinguish the special status of the State of Jammu and Kashmir.

It was argued that this would lead to a situation where greater federal

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participation would be required for the purpose of applying the provisions of

the Constitution but not for extinguishing the special status which the State

enjoys. This argument misses the crux of the power conferred by Article

370(1). By virtue of the power under Article 370(1), the Union and the State

decide on the scope of the legislative powers of the Union in the State and

the provisions of the Constitution (with such modifications) which will apply to

the State of Jammu and Kashmir. Thus, the power under Article 370(1) is

exercised to establish a system of governance in the State.

349. The provisions of the Constitution of Jammu and Kashmir must be referred

to, to elucidate this point. The legislative and executive power of the State

depends on the scope of the legislative and executive power of the Union in

the State of Jammu and Kashmir. Under Section 5 of the Constitution of

Jammu and Kashmir, the extent of the legislative and executive power of the

State extends to those matters over which Parliament does not have

legislative competence under the provisions of the Constitution of India. In

other words, the residual power after excluding matters with respect to which

Parliament can enact laws in relation to the State falls within the ambit of the

legislative power of the State of Jammu and Kashmir.

350. Part IV of the Jammu and Kashmir Constitution contained provisions for the

Directive Principles of State Policy. Part V of the Constitution of Jammu and

Kashmir contained provisions for the executive including the Governor and

the Council of Ministers to aid and advice the Governor. Part VI contained

provisions for the State legislature including the Legislative Assembly and the

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Legislative Council. Parts IV, V, and VI of the Constitution of India were not

made applicable to the State of Jammu and Kashmir through the Constitution

Orders. The Constitution of Jammu and Kashmir deals with subjects which

have been omitted from the Constitution of India as it is applicable to the

State. In doing so, the Constitution of Jammu and Kashmir does not prescribe

principles and a system of governance which are radically different from that

which is prescribed by the Indian Constitution. In fact, there is more than one

similarity.

351. Part IV deals with the Directive Principles of State Policy. Section 12, similar

to Article 37 of the Constitution of India, states that the Directive Principles

are unenforceable in Courts and that they are guiding principles. Most of the

Directive Principles in the Constitution of India, find place in the Constitution

of Jammu and Kashmir.

253

352. The provisions on the scope of powers of the executive and the legislature

were also similar to the provisions in the Constitution of India. Section 35

provided for a Council of Ministers with a Chief Minister at the head to aid and

advice the Governor in the exercise of his functions. Sub-section (2) of

Section 35 provided that all functions of the Governor except those under

Sections 36, 38 and 92 shall be exercised by him only on the advice of the

Council of Ministers. Under Section 36(1), the Chief Minister would be

appointed by the Governor and all other Ministers would be appointed by the

253

The duty to secure a social order, organization of village Panchayats, Right to work, to education and to public

assistance, promotion of co-operative societies, early childhood care, promotion of educational, material, and

cultural interests of socially and economically backward sections.

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Governor on the advice of the Chief Minister. Section 53(2) entrusts the power

to the Governor to prorogue the legislature and dissolve the legislative

assembly. The Legislature of the State shall consist of both the Legislative

Assembly and the Legislative Council

254

and the Legislative Assembly of the

State shall consist of members chosen by direct election.

255

353. The Constitution of Jammu and Kashmir dealt with the residuary space which

was available after the application of the Constitution of India. This is not only

true for the legislative and executive competence of the State but also for the

provisions which are necessary for the establishment of a system of

governance. Thus, when an order is issued under Article 370(1)(d) applying

a provision of the Constitution to the State of Jammu and Kashmir,

corresponding amendments may have to be made to the Constitution of the

State to either enlarge or limit the executive and legislative power.

Collaboration between the Union and State units is necessary to ensure that

the provisions of the Constitution of Jammu and Kashmir are not inconsistent

with the provisions of the Constitution of India as applicable to the State.

354. A collaborative exercise between the Union and the State was imperative for

the smooth functioning of governance in the State. The power under Article

370(3) by which the President decides if special circumstances still exist in

the State is an independent inquiry unrelated to the power under Article

370(1). When the nature of power and the repercussions of the exercise of

such power vary under both the provisions, the argument that the

254

Section 46 of the Constitution of Jammu and Kashmir

255

Section 47 of the Constitution of Jammu and Kashmir

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interpretation of one provision contradicts with the principle in another loses

force.

vi. The Challenge to CO 272

355. CO 272 was issued under Article 370(1)(d) and sought to amend clause (3)

of Article 370. The petitioners challenge CO 272 as being ultra vires Article

370(1)(d) on the grounds that:

a. It modifies Article 370, which can 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).

356. These arguments are considered in turn.

a. Amendment of Article 370 through Article 370(1)(d)

I. The application of the Constitution to the State of Jammu and Kashmir

357. Before adverting to the issue at hand, it is necessary to understand the

structure of Article 370 and the mechanism by which different provisions of

the Constitution were made applicable to the State of Jammu and Kashmir.

358. Article 370(1)(a) stipulates that the provisions of Article 238 shall not apply in

relation to the State of Jammu and Kashmir. Article 238 concerned the

application of the provisions of Part VI of the Constitution to States in Part B

of the First Schedule. Article 238 was repealed by the Constitution (Seventh

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252

Amendment) Act 1956, which modified the categorisation of the constituent

units in the country and did away with the distinction between Part A States

and Part B States. Article 370(1)(b) limits the powers of Parliament to make

laws for the State of Jammu and Kashmir, as specified in sub-clauses (i) and

(ii) of the provision.

359. Article 370(1)(c) stipulates that the provisions of Article 1 and “of this article”

shall apply in relation to the State of Jammu and Kashmir. The import of Article

370(1)(c) is that Article 1 as well as “this Article,” meaning Article 370, applies

to the State of Jammu and Kashmir. Neither Article 370 nor any other

provision of the Constitution contemplates a modification or amendment of

the application of Article 1 to the State of Jammu and Kashmir. Article 1 is

therefore applicable to the State without any exceptions, modifications, or

amendments and without the possibility of any exceptions, modifications, or

amendments. This is in accordance with the principle that Article 1 is founded

on the territorial integrity and unity of India. As a Constitution Bench of this

Court observed in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha,

256

“India

is an indestructible Union of destructible units.”

257

The indestructible nature of

the Union of India

258

is underscored by its application to the State of Jammu

and Kashmir, which was otherwise subject to a special federal arrangement

by virtue of Article 370. The State of Jammu and Kashmir is an integral part

of the Union of India.

256

(2007) 3 SCC 184

257

Ibid at paragraph 27.

258

Subject to the sovereign power of the nation to acquire or cede territories, as recognized in In re Berubari

Union’s case (supra).

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253

360. Article 370, on the other hand, could be amended or modified in its application

to the State. Clause (3) of Article 370 stipulates that the President may

declare that “this article” shall cease to be operative or shall be operative only

with such exceptions and modifications as he may specify:

“(3) Notwithstanding anything in the foregoing provisions of this

article, the President may, by public notification, declare that this

article shall cease to be operative or shall be operative only with

such exceptions and modifications and from such date as he may

specify:

Provided that the recommendation of the Constituent Assembly of

the State referred to in clause (2) shall be necessary before the

President issues such a notification.”

(emphasis supplied)

361. The President was empowered to exercise this power by issuing a public

notification. The proviso to this provision provides that the recommendation

of the Constituent Assembly of the State shall be necessary before the

President issues such a notification. The term “this article” in clause (3) refers

to Article 370. Clause (3), therefore, provides for the manner in which the

application of Article 370 to the State of Jammu and Kashmir can be amended

or abrogated.

362. Article 370(1)(d) provides that “such of the other provisions” of the

Constitution shall apply to the State of Jammu and Kashmir as the President

may by order specify. The first proviso requires the President to issue an order

which relates to the matters specified in the IoA referred to in Article

370(1)(b)(i) in consultation with the State Government. The second proviso

requires the President to issue orders which relate to matters other than those

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254

specified in the IoA with the concurrence of the State Government. The term

“other provisions” indicates that the procedure laid down by Article 370(1)(d)

applies to provisions other than the ones indicated in sub-clauses (a) to (c) of

clause (1) of Article 370.

363. From this standpoint of Article 370, the following position on the application

of the Constitution to the State of Jammu and Kashmir emerges:

a. Article 238 (before it was repealed) did not apply to the State;

b. Article 1 applies to the State. Its application can neither be modified nor

amended nor can it cease to operate;

c. Article 370 applied to the State. Its application could be modified or

amended or it could cease to be operative by the issuance of a public

notification in accordance with the procedure prescribed by clause (3) of

Article 370; and

d. The provisions of the Constitution, other than Articles 1, 238 (before it

was repealed), and 370 shall apply to the State as specified by the

President by way of orders, with any exceptions and modifications. The

procedure contemplated by Article 370(1)(d) must be followed in this

case.

364. At this juncture, it is crucial to understand the difference between Article

370(1)(a), Article 370(1)(c) and Article 370(1)(d). Article 370 (1)(a) stipulates

that the provisions of Article 238 shall not apply to Jammu and Kashmir.

Article 370(1)(c) provides that Article 1 and Article 370 shall apply to Jammu

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and Kashmir. Article 370(1)(d) lays down the procedure by which any “other”

provision of the Constitution can be modified or amended in its application to

the State of Jammu and Kashmir. The expression “other” will exclude Articles

1, 238, and 370. Hence, recourse must be had to the procedure contemplated

by Article 370(3) if Article 370 is to cease to operate or is to be amended or

modified in its application to the State of Jammu and Kashmir.

365. It is trite law that a power under a statute must be exercised in accordance

with the provisions of that statute and in no other manner. In J.N. Ganatra v.

Morvi Municipality,

259

this Court set aside the dismissal of an employee by

the respondent municipality on the ground that it had failed to comply with the

procedure for dismissal set out in the relevant rule:

“4. It is no doubt correct that the General Board of the Municipality

had the power under the Act to dismiss the appellant but the said

power could only be exercised in the manner indicated by Rule 35

of the Rules. Admittedly the power of dismissal has not been

exercised the way it was required to be done under the Act. It is a

settled proposition of law that a power under a statute has to

be exercised in accordance with the provisions of the statute

and in no other manner. In view of the categoric finding given by

the High Court to the effect that the order of dismissal was on the

face of it illegal and void, we have no hesitation in holding that the

dismissal of the appellant was not an act done in pursuance or

execution or intended execution of the Act.”

(emphasis supplied)

366. The same rule of construction has been used in the context of various other

statutes

260

and is undoubtedly applicable to the Constitution. The principle

259

(1996) 9 SCC 495

260

Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala, (2002) 1 SCC 633; State of Uttar Pradesh v.

Singhara Singh, 1963 AIR 358

PART E

256

underlying this rule is that the provision may as well have not been enacted if

the procedure it provides is not followed.

261

II. Paragraph 2 of CO 272

367. CO 272 was issued in exercise of the power under Article 370(1)(d).

Paragraph 2 of CO 272 is extracted below:

“2. All provisions of the Constitution, as amended from time to time,

shall apply in relation to the State of Jammu and Kashmir and the

exceptions and modifications subject to which they shall so apply

shall be as follows: -

To article 367, there shall be added the following clause, namely: -

“(4) For the purposes of this Constitution as it applies in relation to

the State of Jammu and Kashmir –

(a) references to this Constitution or to the provisions thereof shall

be construed as references to the Constitution or the provisions

thereof as applied in relation to the said State;

(b) references to the person for the time being recognized by the

President on the recommendation of the Legislative Assembly

of the State as the Sadar-i-Riyasat of Jammu and Kashmir,

acting on the advice of the Council of Ministers of the State for

the time being in office, shall be construed as references to the

Governor of Jammu and Kashmir;

construed as including references to the Governor of Jammu

and Kashmir acting on the aid and advice of his Council of

Ministers; and

(d) in proviso to clause (3) of article 370 of this Constitution,

the expression “Constituent Assembly of the State referred

to in clause (2)” shall read “Legislative Assembly of the

State”.”

(emphasis supplied)

261

State of Uttar Pradesh v. Singhara Singh, 1963 AIR 358

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257

368. Paragraph 2 of CO 272 applies the entire Constitution of India (as amended

from time to time) to the State of Jammu and Kashmir. While paragraph 2

does not specify any exceptions, it sets out a modification. It adds clause (4)

to Article 367. Article 367, without the modification specified by CO 272, reads

as follows:

“367. Interpretation.—(1) Unless the context otherwise requires, the

General Clauses Act, 1897, shall, subject to any adaptations and

modifications that may be made therein under Article 372, apply for

the interpretation of this Constitution as it applies for the

interpretation of an Act of the Legislature of the Dominion of India.

(2) Any reference in this Constitution to Acts or laws of, or made by,

Parliament, or to Acts or laws of, or made by, the Legislature of a

State, shall be construed as including a reference to an Ordinance

made by the President or, to an Ordinance made by a Governor, as

the case may be.

(3) For the purposes of this Constitution “foreign State” means any

State other than India:

Provided that, subject to the provisions of any law made by

Parliament, the President may by order declare any State not to be

a foreign State for such purposes as may be specified in the order.”

369. CO 272 applies the entire Constitution to the State of Jammu and Kashmir

with a ‘modification’ to Article 367 by way of sub-clause (d) of the newly

inserted clause (4). In terms of this modification, the term “Constituent

Assembly of the State referred to in clause (2)” in the proviso to Article 370(3)

shall be read as “Legislative Assembly of the State.” In terms of this

modification, the proviso to Article 370(3) would read as follows:

“Provided that the recommendation of the Legislative Assembly of

the State shall be necessary before the President issues such a

notification.”

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258

370. The petitioners have challenged paragraph 2 of CO 272 on the ground that a

Constitutional Order issued in exercise of the power under Article 370(1)(d)

cannot amend Article 370 itself.

III. The substance or effect of a provision is more important than its form

371. Other similar provisions of the Constitution and the interpretation accorded to

them by this Court are instructive in the exercise of assessing whether the

procedure followed in this case is valid. Article 368 of the Constitution

provides for the procedure by which the Constitution may be amended.

Clause (2) of Article 368 is extracted below:

“Power of Parliament to amend the Constitution and procedure

therefor.—

…

(2) An amendment of this Constitution may be initiated only by the

introduction of a Bill for the purpose in either House of Parliament,

and when the Bill is passed in each House by a majority of the total

membership of that House and by a majority of not less than two-

thirds of the members of that House present and voting, it shall be

presented to the President who shall give his assent to the Bill and

thereupon] the Constitution shall stand amended in accordance with

the terms of the Bill:

Provided that if such amendment seeks to make any change in—

(a) Article 54, Article 55, Article 73, 566[Article 162, Article 241 or

Article 279-A, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part

XI, or

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259

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislature of

not less than one-half of the States by resolutions to that effect

passed by those Legislatures before the Bill making provision for

such amendment is presented to the President for assent.

…”

(emphasis supplied)

372. Clause (2) of Article 368 provides that the Constitution may be amended when

a Bill for the purpose is passed in each House of Parliament by a majority of

the total membership of that House and by a majority of not less than two-

thirds of the members of that House present and voting. However, an

amendment which seeks to make any “change” to certain specified provisions

is required to be ratified by the legislatures of not less than one-half of the

States in the manner provided, before the Bill is presented to the President

for assent. A long line of cases concerning Article 368 of the Constitution have

prioritised the substance or effect of an amendment while testing whether the

proviso to Article 368 would be attracted.

373. In Shankari Prasad Singh Deo v. Union of India,

262

this Court adjudicated

whether the Constitution (First Amendment) Act 1951, by which Articles 31-A

and 31-B were inserted in the Constitution of India was ultra vires. One of the

arguments advanced by the petitioners in this case was that the concerned

Bill ought to have been ratified in terms of the procedure contemplated by the

proviso to Article 368(2) because the impugned articles curtailed the powers

262

1951 SCC 966

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260

of the High Courts under Article 226 and of this Court under Articles 132 and

136. Rejecting this argument, this Court held that the impugned articles did

not make any change to Articles 226, 132 or 136:

“17. It will be seen that these Articles do not either in terms or in

effect seek to make any change in Article 226 or in Articles 132 and

136. …”

(emphasis supplied)

374. In Sajjan Singh v. State of Rajasthan,

263

this Court adjudicated the validity

of the Constitution (Seventeenth Amendment) Act 1964 by which Article 31-

A was amended and forty-four statutes were added to the Ninth Schedule to

the Constitution. Here too, one of the questions was whether the procedure

prescribed by the proviso to Article 368 ought to have been followed. This

Court rejected the challenge:

“14. … The impugned Act does not purport to change the provisions

of Article 226 and it cannot be said even to have that effect

directly or in any appreciable measure. That is why we think that

the argument that the impugned Act falls under the proviso, cannot

be sustained. It is an Act the object of which is to amend the relevant

Articles in Part III which confer fundamental rights on citizens and

as such it falls under the substantive part of Article 368 and does

not attract the provisions of clause (b) of the proviso. If the effect of

the amendment made in the fundamental rights on Article 226

is direct and not incidental and is of a very significant order,

different considerations may perhaps arise. But in the present

case, there is no occasion to entertain or weigh the said

considerations.”

(emphasis supplied)

263

1964 SCC OnLine SC 25

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261

375. Although the court relied on the object of the impugned statute, it placed equal

emphasis on its effect. Its reasoning indicates that the effect must be of an

appreciable or significant degree.

376. This line of precedent was consolidated in Kihoto Hollohan v. Zachillhu,

264

where a Constitution Bench of this Court was called upon to determine the

constitutional validity of the Tenth Schedule to the Constitution. One of the

grounds of challenge was that paragraph 7 of the Tenth Schedule brought

about a change in the operation of Articles 136, 226 and 227 of the

Constitution and that the concerned Bill ought to have been passed in

compliance with the procedure laid down by the proviso to clause (2) of Article

368. Paragraph 7 of the Tenth Schedule is extracted below:

“7. Bar of jurisdiction of courts. — Notwithstanding anything in this

Constitution, no court shall have any jurisdiction in respect of any

matter connected with the disqualification of a member of a House

under this Schedule.”

377. Articles 136, 226 and 227 concern the jurisdiction of this Court and the High

Courts respectively and the power of judicial review. Article 136 finds a place

in Chapter IV of Part V and Articles 226 and 227 are present in Chapter V of

Part VI. The proviso to clause (2) of Article 368 stipulates that a constitutional

amendment which seeks to make a change to these chapters must be ratified

in the manner provided, before the Bill which seeks to make such

amendments is presented to the President for assent. The petitioners argued

that the Bill inserting the Tenth Schedule attracted the proviso to Article 368(2)

264

1992 Supp (2) SCC 651

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262

because it curtailed the power of judicial review and therefore, ought to have

been ratified by the prescribed number of States before it was presented to

the President for assent.

378. The majority, speaking through M N Venkatachaliah, J., rejected the

challenge to the Tenth Schedule. However, it held that paragraph 7 had the

effect of changing the application of Articles 136, 226, and 227, thereby

attracting the proviso to Article 368(2). It found that paragraph 7 was

severable from the other provisions of the Tenth Schedule and struck down

paragraph 7 alone. The observations of this Court on the effect of paragraph

7 on the provisions which concerned judicial review are instructive and are

extracted below:

“61. … The changes in Chapter IV of Part V and Chapter V of Part

VI envisaged by the proviso need not be direct. The change could

be either “in terms of or in effect”. It is not necessary to change the

language of Articles 136 and 226 of the Constitution to attract the

proviso. If in effect these articles are rendered ineffective and

made inapplicable where these articles could otherwise have

been invoked or would, but for Paragraph 7, have operated

there is ‘in effect’ a change in those provisions attracting the

proviso. …

62. In the present case, though the amendment does not bring in

any change directly in the language of Articles 136, 226 and 227 of

the Constitution, however, in effect paragraph 7 curtails the

operation of those articles respecting matters falling under the Tenth

Schedule. There is a change in the effect in Articles 136, 226 and

227 within the meaning of clause (b) of the proviso to Article 368(2).

Paragraph 7, therefore, attracts the proviso and ratification was

necessary. …”

(emphasis supplied)

379. This Court determined the validity of paragraph 7 by considering whether it

changed Articles 136, 226 and 227 “in terms of or in effect.” It found that while

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263

the language of these provisions was not directly amended, the effect of

paragraph 7 was to change the operation of these provisions. This approach

indicates that this Court was concerned more with the substance of the

constitutional amendment as opposed to its form. The minority judgment in

Kihoto Hollohan (supra) concurred with the ruling of the majority on the

constitutional validity of paragraph 7 but differed on the question of the validity

of the entire Tenth Schedule, holding that it was constitutionally infirm in its

entirety. Its approach to the interpretation of the issue concerning paragraph

7 was similar to that of the majority.

265

380. Finally, in Union of India v. Rajendra N. Shah,

266

this Court adjudicated the

vires of the Constitution (Ninety Seventh Amendment) Act 2011 which inter

alia introduced Part IXB under a chapter titled ‘The Co-operative Societies.’

In particular, this Court dealt with the question of whether Part IXB was non

est for want of ratification by half of the States under the proviso to Article

368(2). Answering the question in the affirmative, this Court held that:

“56. A reading of the aforesaid judgments would indicate that the

“change” spoken about by Article 368(2) proviso in any provision of

the Constitution need not be direct in the sense of adding,

subtracting, or modifying the language of the particular Article or

provision spoken of in the proviso. The judgments above referred to

speak of a ‘change-in effect’ which would mean a change which,

though not in the language of any provision of the Constitution,

would yet be a change which would impact a particular article and

the principle contained therein in some significant way.

…

265

Paragraph 162: “…Thus, this extinction of the remedy alone without curtailing the right, since the question of

disqualification of a Member on the ground of defection under the Tenth Schedule does require adjudication on

enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in

Chapter V in Part VI of the Constitution.” (emphasis supplied)

266

2021 SCC OnLine SC 474

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264

61. It is always important to remember that in matters affecting the

Constitution of India, form always gives way to substance.”

381. From the above discussion, it emerges that the following aspects are of

significance when assessing whether a change has been made to a provision

of the Constitution:

a. A change may be either in terms of or in its effect;

b. A change can be said to have been made even if the language of the

concerned provision is not directly amended, by adding, subtracting or

modifying the language. This is a change in effect;

c. If the effect of an amendment is to change a provision, such effect must

be significant or appreciable; and

d. The substance of a change is more important than its form.

Although this position of law relates to the proviso to Article 368(2), it is equally

applicable to Article 370(3). This is because the precedents discussed in this

segment explore the manner in which a ‘change’ may be effected as well as

what a ‘change’ means at its core. While Article 370(3) employs the word

‘modification’ and not ‘change,’ the two terms are synonyms. Further, both

articles concern, in essence, amendments to a provision of the Constitution.

Therefore, the standards which have been set out in the preceding paragraph

to determine whether a ‘change’ was made apply to a determination of whether

a ‘modification’ was made. It follows that an assessment of whether a

Constitutional Order amounts to a ‘modification’ under Article 370(3) and

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consequently, whether the procedure under Article 370(1) or under Article

370(3) ought to have been followed depends on the standard set out in the

preceding paragraph.

IV. The validity of modification of Article 367

382. The effect of a provision of law is as important as its form. In other words,

what it actually does is as significant as what it appears to do, if not more.

While the change sought to be made by paragraph 2 of CO 272 may appear

to be a ‘modification’ or amendment of Article 367 at first blush, its effect is

to amend Article 370 itself. Paragraph 2 couches the amendment to Article

370 in the language of an amendment or modification to Article 367 but its

true import is to amend Article 370.

383. CO 272 purports to add Clause 4 to Article 367 and stipulates that the

expression ‘Constituent Assembly’ in the proviso to Article 370(3) shall be

read as ‘Legislative Assembly.’ The proviso to Article 370(3) states that the

recommendation of the Constituent Assembly referred to in Clause 2 is

necessary. Clause 2 of Article 370 refers to the Constituent Assembly for the

purpose of framing the Constitution of the State. Thus, the proviso to Article

370(3) confers the power to make recommendations to that specific

Constituent Assembly. CO 272 changes the language to the proviso to Article

370(3) in two ways. First, it changes the recommending body from the

Constituent Assembly to the Legislative Assembly; and second, it makes a

new arrangement at variance with that specific Constituent Assembly.

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266

384. Both these changes are not insignificant because they modify the essential

character of the proviso by substituting a particular type or kind of body with

another type or kind entirely. There are myriad differences between a

Constituent Assembly and Legislative Assembly. A Constituent Assembly is

tasked with framing a Constitution in exercise of constituent power. The power

to amend a Constitution is a derived constituent power – ‘derived’ because it

originates in the Constitution. Not having been entrusted with the

responsibility to do this, the Legislative Assembly cannot be equated to the

Constituent Assembly. Statutes and other laws (which fall within the domain

of the Legislative Assembly) are not comparable to a Constitution because

they are framed and enacted in exercise of legislative power. The Constitution

is the grundnorm or the basic law, from which all other laws derive their validity

and legitimacy. Indeed, the Legislative Assembly is itself constituted and

constrained to operate in terms of the Constitution and is bound by it. This is

not true of a Constituent Assembly, which has a free reign to frame a

Constitution. As the scholar Martin Loughlin writes,

“…constituent power is not the expression of the nation operating in

accordance with some law of nature; it is a modern concept

expressing the evolving precepts of political conduct which breathe

life into the constitution.”

267

385. This remains true despite the Legislative Assembly of Jammu and Kashmir

having the power to amend the Constitution of Jammu and Kashmir under

Section 147. The difference between the plenary power to frame a

267

Martin Loughlin, ‘On constituent power’ in Michael W. Dowdle and Michael A. Wilkinson (eds.)

Constitutionalism Beyond Liberalism, Cambridge University Press, 2017

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267

Constitution and the power to amend a Constitution was recognized by this

Court in I.R. Coelho v. State of T.N.:

268

“54. … No provision of the Constitution framed in exercise of plenary

law-making power can be ultra vires because there is no touchstone

outside the Constitution by which the validity of provision of the

Constitution can be adjudged. The power for amendment cannot be

equated with such power of framing the Constitution. The amending

power has to be within the Constitution and not outside it.”

386. In Indira Nehru Gandhi v. Raj Narain,

269

this Court expounded the meaning

of constituent power:

“48. When the constituent power exercises powers the constituent

power comprises legislative, executive and judicial powers. All

powers flow from the constituent power through the Constitution to

the various departments or heads. In the hands of the constituent

authority there is no demarcation of powers. It is only when the

constituent authority defines the authorities or demarcates the areas

that separation of power is discussed. The constituent power is

independent of the doctrine of separation of powers. The constituent

power is sovereign. It is the power which creates the organs and

distributes the powers.

49. The constituent power is sui generis. It is different from

legislative power. The position of unlimited law-making power is the

criterion of legal sovereignty. The constituent power is sovereign

because the Constitution flows from the constituent power.”

387. In framing a Constitution, which is basic law, Constituent Assemblies

deliberate upon and determine the mode and mechanism of governance, the

rights of the people, the restrictions on state power, the scope of functioning

of various institutions, the yardstick for the legality of state action, and other

matters, all of which go to the heart of its vision and mission for the nation or

the constituent unit (that is, the State) in question. A Constituent Assembly

268

(2007) 2 SCC 1

269

1975 Supp SCC 1

PART E

268

lays the foundation upon which the government will be built for ages to come.

In contrast, the Legislative Assembly is concerned with statutes, rules, and

regulations by which it responds to developments in society in real time. It is

concerned with the day-to-day functioning of the state, which are short-term

concerns relative to the concerns accounted for by a Constituent Assembly.

The mode of appointment of the members of these bodies, too, is not similar.

388. Article 366 of the Constitution lays down the definition of the phrases used in

the Constitution. These definitions shall apply unless the context requires

otherwise. Article 367(1) of the Constitution states that unless the context

otherwise requires, the General Clauses Act 1897 shall subject to any

adaptations and modifications made under Article 372 apply for the

interpretation of the Constitution as it applies for the interpretation of an Act

of the Legislature of the Dominion of India. Article 372(2) grants the President

the power to issue an order to make adaptations and modifications to any law

which was in force immediately before the commencement of the Constitution

to bring such law in accordance with the provisions of this Constitution.

Clause 2 of Article 367 states that a reference to an Act of the Legislature of

the State or Parliament shall be “construed” as including a reference to an

Ordinance made by the Governor in exercise of power under Article 223 and

the President in exercise of power under Article 123. Clause 2 of Article 367

merely reiterates the position of law in Articles 123 and 213 that an Ordinance

shall have the same force and effect as an Act passed by a Legislature.

Clause 3 to Article 367 states that for the purpose of the Constitution, “foreign

State” means any State other than India. It must be noted that both Articles

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269

366 and 367 begin with the phrase “unless the context otherwise requires”.

The purpose of including this phrase is that the general definitions which are

provided in Article 366 and the General Clauses Act must not render the

constitutional provision otiose or alter the purpose of the provision itself. This

is itself indicative that neither the interpretation clause nor the definition clause

can be used to substantively alter any of the provisions of the Constitution.

389. It is trite law that there is no bar on legislative bodies defining a word or term

in an ‘interpretation’ clause artificially

270

such that the term is stretched or

shrunk or otherwise given an artificial projection to make it more meaningful

or to subserve the objective of the statute.

271

The fundamental difference

between a Constituent Assembly and a Legislative Assembly renders the

modification of Article 367 a modification of Article 370(3), which has an effect

that is appreciable and substantive. The difference is of a magnitude as to

change the essential character of the proviso to Article 370. While the

‘interpretation’ clause can be used to define or give meaning to particular

terms, it cannot be deployed to amend a provision by bypassing the specific

procedure laid down for its amendment. This would defeat the purpose of

having a procedure for making an amendment.

390. The consequence of permitting amendments through the circuitous manner

would be disastrous. Many provisions of the Constitution would be susceptible

to amendments which evade the procedure stipulated by Article 368 or other

270

Kishan Lal v. State of Rajasthan, 1990 Supp SCC 742; Feroze N. Dotivala v. P.M. Wadhwani, (2003) 1 SCC

433

271

CIT v. Sundaram Spinning Mills, (2000) 1 SCC 466

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provisions. For instance, Articles 243D, 243T, 330 and 332 provide for the

reservation of seats for Scheduled Castes in Panchayats, Municipalities, the

Lok Sabha and the Legislative Assemblies of States respectively. Each of

these provisions uses the word “shall” while prescribing reservation. This is

indicative of the mandatory nature of the provision. Article 341 stipulates that

the President may specify the castes, races or tribes or parts of or groups

within castes, races or tribes which shall be deemed to be Scheduled Castes

for the purposes of the Constitution. Theoretically, can a public notification

which deletes all castes, races or tribes or parts of or groups within them from

the list of Scheduled Castes be contemplated? The consequence would be

that no caste, race or tribe would be considered a Scheduled Caste for the

purposes of the Constitution and the mandate of Articles 243D, 243T, 330

and 332 would be obviated without following the procedure prescribed by

Article 368. Hence, amendments cannot be carried out by bypassing a

procedure which has been laid down for that purpose.

391. The decision of this Court in Madhav Rao Jivaji Rao Scindia v. Union of

India

272

supports this interpretation. Article 291 of the Constitution stipulated

that where under any covenant or agreement entered into by the Ruler of any

Indian State before the commencement of the Constitution, the payment of

any sums free of tax has been guaranteed or assured by the Government of

the Dominion of India to any Ruler of the State as a Privy Purse, such sums

would be:

272

(1971) 1 SCC 85

PART E

271

a. charged on and paid out of the Consolidated Fund; and

b. be exempt from all taxes on income.

392. Article 366(21) as originally enacted and before its deletion by the Seventh

Amendment contained a definition of the expression ‘Rajpramukh’:

“(21) ‘Rajpramukh’ means—

(a) in relation to the State of Hyderabad, the person who for the time

being is recognised by the President as the Nizam of Hyderabad;

(b) in relation to the State of Jammu and Kashmir or the State of

Mysore, the person who for the time being is recognised by the

President as the Maharaja of that State; and

Schedule, the person who for the time being is recognised by the

President as the Rajpramukh of that State, and includes in relation

to any of the said States any person for the time being recognised

by the President as competent to exercise the powers of the

Rajpramukh in relation to that State,”

393. With the reorganization of the States in 1956 and the deletion of classification

of States to Part A, Part B, and Part C States, the definition became obsolete

and was deleted. Clause (22) of Article 366 defined the expression ‘Ruler’ in

relation to an Indian State to mean the Prince, Chief or other person by whom

a covenant or agreement referred to in Article 291(1) was entered into and

who, for the time being, was recognized as the Ruler of the State by the

President. The definition extended to any person who was recognised by the

President as being the successor of the Ruler.

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272

394. Before Article 362 was repealed in 1971,

273

it provided that in making laws or

in exercise of their executive powers, Parliament and the Union and States

shall have due regard to the guarantees or assurances given under any

covenant under clause (1) of Article 291 with respect to the personal rights,

privileges and dignities of the Ruler of an Indian State. The Privy Purses and

the privileges of the Rulers of the Indian States were continued until 6

September 1970. The Twenty-fourth Amendment Bill for terminating the Privy

Purses was moved in the Lok Sabha. While the Lok Sabha passed the Bill

with a 2/3

majority, the requisite majority was not attained in the Rajya

Sabha. When the Bill to amend the Constitution to delete the Privy Purses

failed to pass muster, the President issued an Order withdrawing recognition

of all the Rulers of Indian States on 6 September 1970. This gave rise to the

petitions under Article 32 of the Constitution.

395. Chief Justice M Hidayatullah, speaking for a eleven-Judge Bench, rejected

the contention of the Union of India that the petitions ought to fail in view of

the bar contained in Article 363 of the Constitution. This was because the

petitions sought to enforce the provisions of the Constitution relating to the

covenants and agreements entered into by the erstwhile Rulers. Construing

the provisions of Article 291, Hidayatullah, J. held that the immediate and

dominant purpose of Article 291 was to ensure payment of Privy Purses,

charge them under the Consolidated Fund and make them free of taxes on

income. What was sought to be enforced was not the covenants of the

273

The Constitution (Twenty-sixth) Amendment Act 1971

PART E

273

instruments or agreements which were entered into with the Rulers by the

Dominion but the mandate of Article 291 itself. The Orders of the President

were held to be ultra vires. J C Shah, J. held that by the provisions enacted

in Articles 366(22), 291 and 362, the privileges of the Rulers were made an

integral part of the constitutional scheme by which a class of citizens, for

historical reasons, was accorded special privileges. These privileges, the

learned Judge held, could not be withdrawn arbitrarily by merely exercising

the power under Article 366(22) to withdraw recognition. Article 291 was held

to raise an obligation of the Union to pay the Privy Purses. K S Hegde, J.

noted that the power under Article 366(22) was being exercised for a collateral

purpose after the Bill to amend the Constitution to delete Articles 291, 362

and 366(22) had failed. The learned Judge held that it was not open to the

Union Government to obviate complying with the provisions of the

Constitution by taking recourse to the power under Article 366(22).

396. The decision of the Constitution Bench in Raghunathrao Ganpatrao v.

Union of India

274

arose from a challenge to the constitutional validity of the

Twenty-sixth constitutional Amendment.

275

Articles 291 and 362 of the

Constitution stood repealed by constitutional amendment and a new Article,

Article 363A, was inserted resulting in the deprivation of the recognition

accorded to the Rulers, declaring the abolition of the Privy Purses, and

extinguishing the rights and obligations in respect of the Privy Purses.

274

1994 Supp (1) SCC 191

275

Constitution (Twenty-sixth Amendment) Act 1971

PART E

274

397. Adverting to the earlier decision in Madhav Rao Scindia (supra), the

Constitution Bench noted that the obligation to pay Privy Purses emanated

from the Constitution and not in the covenants and agreements which were

executed by the erstwhile Rulers. The Court held that the guarantees and

assurances given under the Constitution were independent of the documents

relating to their accession. Hence, after the introduction of Articles 291 and

362, the agreements and covenants had no existence at all and no obligation

emanated from them. Rejecting the argument that the Privy Purses

constituted an essential part of the constitutional structure so as to be a part

of the basic structure, the Court held that the permanent retention of the Privy

Purses and the privileges and rights “would be incompatible with the

sovereign and republican form of Government.” The Constitution Bench

rejected the submission that the grant of the Privy Purses was a consideration

for the surrender of sovereignty by the Rulers of the Indian States. L M

Sharma, J. noted:

“97. A serious argument has been advanced that the privy purse

was a just quid pro quo to the Rulers of the Indian States for

surrendering their sovereignty and rights over their territories and

that move for integration began on a positive promising note but it

soon degenerated into a game of manoeuvre presumably as a

deceptive plan or action. This argument based on the ground of

breaking of solemn pledges and breach of promise cannot stand

much scrutiny. To say that without voluntary accession, India i.e.

Bharat would be fundamentally different from that Bharat that came

into being prior to the accession is untenable much less

inconceivable … the integration could have been achieved even

otherwise. One should not lose sight of the fact that neither because

of their antipathy towards the Rulers nor due to any xenophobia, did

the Indian Government entertain the idea of integration but because

of the will of the people. It was the people of the States who were

basically instrumental in the integration of India.”

PART E

275

398. The Court held that “the attitude of the princes towards joining a united India

was one of resistance, reluctance and high bargain and it was the people of

the States who forced them to accede to the new United India.” The States,

in other words, “were free but not stable because of the stress and strain they

underwent both from inside and outside.” Through the process of integration

and democratisation (or unionization, as Sardar Patel called it), multiple

forces – political, economic and geographic, and the democratic movement

within the States accelerated the process of integration. The removal of

Articles 291 and 362 was held not to infringe the basic structure of the

Constitution. S Mohan, J. noted that though in Madhav Rao Scindia (supra),

Articles 291 and 366(22) were held to be an “integral part of the Constitution”,

this statement by itself in the judgment of J C Shah, J. did not elevate those

articles to be a part of the basic structure of the Constitution. Mohan, J. held:

“198. No doubt, unity and integrity of India would constitute the basic

structure as laid down in Kesavananda Bharati case [Kesavananda

Bharati v. State of Kerala, (1973) 4 SCC 225] but it is too far-fetched

a claim to state that the guarantees and assurances in these articles

have gone into the process of unification and integration of the

country. One cannot lose sight of the fact that it was the will of the

people and the urge to breathe free air of independent India as equal

citizens that brought about the merger of these princely States.

Therefore, the contention that the Articles 291 and 362 facilitated

the organic unity of India is unacceptable.”

399. Having discussed the two judgments (of the 11-judge Bench in Madhav Rao

Scindia (supra) and of the Constitution Bench in Raghunathrao Ganpatrao

(supra)), it becomes necessary to summarise the principles which are

relevant to the present controversy:

PART E

276

a. The guarantee of Privy Purses to the rulers of the erstwhile Indian states

who had acceded to or merged with the Union emanated from the text

of the Constitution (Article 291 and Article 366(22)) and not from the

agreements antecedent to the adoption of the Constitution entered into

by the rulers with the Dominion of India;

b. So long as Article 291 continued to subsist, the abrogation of the Privy

Purses could not be brought about by an executive act of de-recognition

of the rulers;

c. Once the Constitution was itself amended so as to delete the entitlement

of the erstwhile Rulers to receive Privy Purses and the corresponding

obligation of the Union to pay Privy Purses, both the right and the

obligation embodied in Article 291 came to an end;

d. The payment of Privy Purses could not be regarded as a quid pro quo

or consideration for the surrender of sovereignty by the erstwhile rulers

of Indian states. Integration into the Union of India was a complex

historical process which was shaped by history, politics, economics and

geography as well as by the internal and external strains which were

faced by the rulers and above all by the process of democratisation

which was taking place in the Union of India;

e. Article 291 and Article 366 (22) were not a part of the basic features of

the Constitution. J C Shah, J. in Madhav Rao Jivaji Rao Scindia

(supra) held that these Articles were an “integral part” of the Constitution.

Tested on the anvil of the basic structure doctrine which was evolved in

PART E

277

Kesavananda Bharati v. State of Kerala,

276

this decision being

subsequent to Madhav Rao Scindia (supra), the Constitution Bench

held in Raghunathrao Ganpatrao (supra) that those observations could

not be elevated to construe Articles 291 and 366(22) to be a part of the

basic features;

f. The abrogation of Articles 291 and 366(22) by a constitutional

amendment was as much a part of the political process which had

commenced with the integration of the erstwhile princely States into the

Union of India and the ultimate act of abrogation was a part of that

political process designed to bring about substantive equality by doing

away with the privileges which were extended to the erstwhile Indian

rulers; and

g. While the decision in Madhav Rao Scindia (supra) held that the

guarantee under Article 291 could not be abrogated by a mere executive

act of de-recognising the erstwhile rulers of the Indian states, the

subsequent decision in Raghunathrao Ganpatrao (supra) upheld the

act of abrogation once it was backed by a constitutional amendment

which deleted the provisions for the payment of Privy Purses.

400. The discussion of the decisions in these two cases makes it evident that in

Madhav Rao Scindia (supra), this Court held that the power under Article

366(22) could not be used for a collateral purpose, to obviate the procedure

under Article 368. This position of law was not diluted by Ragunathrao

276

(1973) 4 SCC 225

PART E

278

Ganpatrao (supra). In the present case, Article 370(1)(c) read with the

proviso to Article 370(3) provides a procedure by which Article 370 may be

modified. Articles 370(1)(d) and 367 cannot be used for a collateral purpose

in effect to modify or obliterate Article 370.

V. Previous Constitutional Orders which modified Article 367

401. The Union of India argued that CO 272 was not the first Constitutional Order

issued to modify Article 370 through Article 367. It flagged that this

mechanism has been followed consistently in the past. The following

Constitutional Orders were issued from time to time, which appear to modify

or alter Article 370:

a. Constitutional Order 44,

277

issued in 1952;

b. Constitutional Order 48,

278

issued in 1954;

c. Constitutional Order 56,

279

issued in 1958; and

d. Constitutional Order 74,

280

issued in 1965.

402. The manner in which these Constitutional Orders sought to modify Article 370

is germane to this Court’s enquiry as to the validity of paragraph 2 of CO 272.

They are considered in turn.

277

“CO 44”

278

“CO 48”

279

“CO 56”

280

“CO 74”

PART E

279

403. CO 44 was issued by the President in exercise of the power under Article

370(3). The relevant part reads thus

“In exercise of the powers conferred by clause (3) of article 370 of

the Constitution of India, the President, on the recommendation of

the Constituent Assembly of the State of Jammu and Kashmir,

is pleased to declare that, as from the 17th day of November, 1952,

the said article 370 shall be operative with the modification that for

the "Explanation" in clause (1) thereof the following Explanation is

substituted, namely: -

"Explanation - For the purposes of this article, the Government of

the State means the person for the time being recognised by the

President on the recommendation of the Legislative Assembly of the

State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the

advice of the Council of Ministers of the State for the time being in

office.”

(emphasis supplied)

404. CO 44 modified the application of Article 370 by substituting the Explanation

in sub-clause (b) of clause (1). Significantly, CO 44 was issued on the

recommendation of the Constituent Assembly of Jammu and Kashmir. At that

time, the Constituent Assembly was functioning. It was dissolved only in 1957

and until then, the procedure contemplated by the proviso to Article 370(3)

could be (and was) followed. The modification of CO 44 was therefore valid

and not comparable to paragraph 2 of CO 272.

405. The President issued CO 48 in exercise of the power under Article 370(1)(d).

This Constitutional Order applied various provisions of the Constitution of

India, with some modifications, to the State of Jammu and Kashmir. One of

the modifications was sought to be effected by adding a provision to Article

367:

PART E

280

“(14) PART XIX.

…

(d) To article 367, there shall be added the following clause, namely:

“(4) For the purposes of this Constitution as it applies in relation to

the State of Jammu and Kashmir-

(a) references to this Constitution or to the provisions thereof shall

be construed as references to the Constitution or the provisions

thereof as applied in relation to the said State;

(b) references to the Government of the said State shall be

construed as including references to the Sadar-i-Riyasat acting on

the advice of his Council of Ministers;

Court of Jammu and Kashmir;

(d) references to the Legislature or the Legislative Assembly of the

said State shall be construed as including references to the

Constituent Assembly of the said State;

(e) references to the permanent residents of the said State shall be

construed as meaning persons who, before the commencement of

the Constitution (Application to Jammu and Kashmir) Order, 1954,

were recognised as State subjects under the laws in force in the

State or who are recognised by any law made by the Legislature of

the State as permanent residents of the State; and

(f) references to the Rajpramukh shall be construed as references

to the person for the time being recognised by the President as the

Sadar-i-Riyasat of Jammu and Kashmir and as including references

to any person for the time being recognised by the President as

being competent io exercise the powers of the Sadar-i-Riyasat.”

406. The route utilised by CO 48 and CO 272 are similar in that both Constitutional

Orders modify Article 367 in its application to the State of Jammu and

Kashmir. The similarities end there. The changes that CO 48 made by virtue

of the addition of clause (4) to Article 367 do not amount to a ‘modification’ of

PART E

281

Article 370 itself. This is because the changes are in the nature of

clarifications:

a. CO 48 made large parts of the Constitution applicable to the State.

However, considerable portions continued to remain inapplicable. Sub-

clause (a) therefore clarified the extent of applicability and obviated

confusion by providing that references to the Constitution or its provisions

were to be construed as references to the Constitution as it applied to the

State;

b. Sub-clause (b) merely reiterated what had already been achieved by CO

44, which followed the procedure prescribed by Article 370(3). It did not

have any effect on the law as it then stood;

c. Sub-clause (d), which clarified that references to the Legislature of the

State were to be construed as including the Constituent Assembly of the

State, was necessitated by the fact that the latter had functioned as a

legislature for the State and enacted several laws. Some of them were:

NAME OF THE ACT

ACT NO.

YEAR

Immovable Properties Requirement Orders

(Validation) Act, 2009

Samvat, 2009

Vegetable Seeds Act, 2009

XII

Samvat, 2009

Prohibition of Smoking (Cinema and

Theatre Halls) Act, 2009

XVIII

Samvat, 2009

Utilization of Lands Act, 2010

Samvat, 2010

Enemy (Confiscation of Property) ]

Ordinance (Repeal) Act, 2011

III

Samvat, 2011

Anand Marriage Act, 2011

Samvat, 2011

PART E

282

Town Area Act, 2011

XVII

Samvat, 2011

Kahcharai Act, 2011

XVIII

Samvat, 2011

Transfer of Land (Validating) Act, 2011

XXVI

Samvat, 2011

Village Panchayat (Levy of Dharat)

Validation Act, 2011

XXVII

Samvat, 2011

Opium Smoking Act, 2011

XXXVII

Samvat, 2011

Natural Calamities Destroyed Areas

Improvement Act, 2011

XXXVIII

Samvat, 2011

Pharmacy Act, 2011

LIII

Samvat, 2011

Registration (Amendment and Validation of

Transfer of Property) Act, 1955

1955

Hindu Marriage Act, 1955

1955

Legislative Assembly (Speakers

Emoluments) Act, 1956

1956

Ministers and Ministers of State Salaries

Act, 1956

1956

PARTICULARS

Habitual Offenders (Control and Reform)

Act, 1956

1956

Prize Competitions Act, 1956

XII

1956

Civil Servants (Removal Doubts and

Declaration of Rights) Act, 1956

XIV

1956

Government Servants (Held in Detention)

Act, 1956

1956

Registration of Deeds (Validation) Act,

1956

XXI

1956

Deputy Speakers and Deputy Chairman’s

Emoluments Act, 1956

XXIV

1956

Common Lands (Regulation) Act, 1956

XXIV

1956

Chowkidari Act, 1956

XXXVII

1956

Hindu Succession Act, 1956

XXXVIII

1956

Nurses, Midwives and Health Visitors

Registration Act, 1956

XLI

1956

Christian Marriage and Divorce Act, 1957

III

1957

PART E

283

Representation of People Act, 1957

1957

Deputy Ministers Salaries and Allowance

Act, 1957

1957

Hindu Minority and Guardianship Act,

1957

VII

1957

407. Any provision which referred to the Legislative Assembly of the State would

therefore be applicable to the Constituent Assembly which was filling the

shoes of the former until its dissolution in 1957. The Constituent Assembly of

Jammu and Kashmir continued to be treated as the Legislative Assembly and

the provision enabling this was subsequently removed by CO 56 on 26

February 1958 after the Constituent Assembly ceased to exist; and

d. Sub-clauses (c) and (e), too, merely clarified the meaning to be accorded

to certain terms without modifying their fundamental nature.

408. Hence, the modifications made by CO 48 to Article 367 were in the nature of

clarifications. They did not amount to a modification of Article 370 itself either

in terms or in effect, to a significant or appreciable extent.

409. The Union of India suggested that the insertion of sub-clause (d) was

indicative of the fact that the terms ‘Legislative Assembly’ and ‘Constituent

Assembly’ were used synonymously. It averred that the two organs were co-

equal in the context of the State of Jammu and Kashmir. This argument

cannot be accepted. Sub-clause (d) was inserted in recognition of the state

of affairs which existed at the time, namely, that the Constituent Assembly

had enacted certain laws for the State prior to the constitution of the

PART E

284

Legislative Assembly. This does not indicate that the two organs were at par

with one another. While the Constituent Assembly may have discharged the

functions of the Legislature for some time, its role did not end there. The task

of framing a Constitution is different from the function of enacting laws. The

other differences between the two bodies have been discussed in detail in the

preceding segments of this judgment.

410. CO 56 modified CO 48 inter alia by substituting the word “Rajpramukh” with

the word “Governor” in the following terms:

“(b) clause (c) shall be omitted', and clause (d) shall be re-lettered

as clause (c);

(i) sub-clause (d) shall be omitted, and sub-clauses (e) and (f) shall

be re-lettered as sub-clauses (d) and (e) respectively;

(ii) in sub-clause (e) as so re-lettered, for the word "Rajpramukh",

the word "Governor" shall be substituted”

411. The Constitution (Seventh Amendment) Act 1956 did away with the position

of ‘Rajpramukh’ and introduced the ‘Governor’ in its place. The portion of CO

56 extracted above, like CO 48, was a clarificatory provision introduced to

recognise the state of affairs which existed at the time. Both CO 48 and CO

56 did not attempt to change or modify the law as it then existed. Rather, they

clarified that the law would continue to apply in the same manner even after

certain changes to the Constitution had been effected by other Amending

Acts. They are most accurately classified as consequential amendments to

the Constitution, which bring it in line with an existing state of affairs.

PART E

285

412. CO 74 modified paragraph 2 of CO 48 for the second time by inter alia

substituting the following sub-clauses of clause (4) of Article 367 as it applied

to the State of Jammu and Kashmir:

“(i) for sub-clause (b), the following sub-clauses shall be substituted,

namely: -

“(aa) references to the person for the time being recognized by the

President on the recommendation of the Legislative Assembly of the State

as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the

Council of Ministers of the State for the time being in office shall be

construed as references to the Governor of Jammu and Kashmir;

(b) references to the Government of the said State shall be construed as

including references to the Governor of Jammu and Kashmir acting on the

advice of his Council of Ministers:

…

(ii) for sub-clause (e), the following sub-clause shall be substituted,

namely: -

(e) references to a Governor shall include references to the Governor of

Jammu and Kashmir:

…” ”

413. It is evident from a plain reading of these substituted clauses that the effect

of CO 74 was to clarify that references to the Sadar-i-Riyasat must be read

as meaning references to the Governor of the State. Mohd. Maqbool

Damnoo v. State of Jammu and Kashmir

281

involved a petition challenging

an order of preventive detention under the Jammu and Kashmir Preventive

Detention Act 1964. The District Magistrate passed an order under Section

13A that it was against the public interest to disclose the grounds of detention

281

(1972) 1 SCC 536

PART E

286

to the petitioner. Among the grounds which were urged in support of the

petition was that the Amending Act by which amendments were made to the

Preventive Detection Act in the State was invalid since it was not assented to

by the Sadar-i-Riyasat. Chief Justice S M Sikri speaking for the Constitution

Bench noted that CO 44 was issued by the President on 16 November 1952

on the recommendation of the Constituent Assembly of the State of Jammu

and Kashmir under Article 370 by which an explanation was introduced for

the purposes of Article 370. The explanation stated that the Government of

the State means the person recognised by the President as Sadar-i-Riyasat

of Jammu and Kashmir on the recommendation of the Legislative Assembly,

acting on the advice of the Council of Ministers for the State.

414. Clause (4) was added to Article 367 so as to provide that for the purpose of

the Constitution as it applies in relation to Jammu and Kashmir, references to

the Government of the State would be construed as including references to

the Sadar-i-Riyasat acting on the advice of his Council of Ministers.

Thereafter, on 24 November 1965, the President with the concurrence of the

State Government issued CO 74. Under this Constitutional Order, Article 367

in its application to the State was modified so as to provide that references to

the Sadar-i-Riyasat acting on the aid and advise of the Council of Ministers

shall be construed as references to the Governor of Jammu and Kashmir

acting on the aid and advice of the Council of Ministers. The petitioner

challenged the replacement of the Sadar-i-Riyasat by the Governor on the

ground that it was ultra vires. Rejecting the challenge, Chief Justice Sikri held

that what the State Government is at a particular time had to be determined

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287

in the context of the Constitution of Jammu and Kashmir. The Explanation did

no more than recognise the constitutional position as it existed on that date:

“24. …We are concerned with the situation where the explanation

ceased to operate. It had ceased to operate because there is no

longer any Sadar-i-Riyasat of Jammu and Kashmir. If the definition

contained in the Explanation cannot apply to the words “government

of the State” then the meaning given in Article 367(4), as amended,

will have to be given to it. If this meaning is given, it is quite clear

that the Governor is competent to give the concurrence stipulated in

Article 370 and perform other functions laid down by the Jammu and

Kashmir Constitution.”

415. This court held that the Governor was the successor of the Sadar-i-Riyasat

and that the latter was only the name given to the head of the State. This

perfectly encapsulates the reasons for which CO 74’s modification of Article

367 was clarificatory. Moreover, CO 74 did not modify Article 370 in terms or

in effect, to a significant or appreciable extent. In fact, the Court in Damnoo

(supra) held that CO 74 did not amount to an amendment of Article 370(1) “by

the back-door”:

“28. Mr Garg drew our attention to clauses (aa) and (b) of Article 367

(4), as substituted by CO 74 … He said that this was amendment of

Article 370(1) by the back-door and the President could not exercise

these powers under Article 370(1) when he had not purported to

exercise these powers under Article 370(3). But, as we have already

said, the explanation had become otiose and references to the

Sadar-i-Riyasat in other parts of the Constitution had also become

otiose. There were two alternatives; first, either to leave the courts

to interpret the words “government of the State” and give it its legal

meaning, or secondly, to give the legal meaning in a definition

clause. What has been done is that by adding clauses (aa) and (b)

a definition is supplied which the Courts would have in any event

given. Therefore, we do not agree that there has been any

amendment of Article 370(1) by the backdoor.

29. If we had regarded this as an amendment to Article 370(1), then

we would have to consider whether the amendatory powers had

been validly exercised or not, but as we have said, we are not

concerned with this question.”

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288

416. Hence, the changes made by CO 74 were also clarificatory and consequential

in nature. They did not have the effect of amending Article 370.

417. Convention certainly does not stand in the way of this Court’s adjudication as

to the legal validity of an impugned provision of law including a Constitutional

Order. However, in this case, three of the four Constitutional Orders which

have been issued in the past and which modify Article 367 do not amount to

modifications of Article 370, either in terms or in effect, in a manner that is

appreciable or significant. These are CO 48, CO 56 and CO 74. The argument

of the Union of India that these Constitutional Orders are indicative of the

validity of CO 272 cannot be accepted. CO 44, which modified Article 370 by

amending its language, was issued in a valid exercise of the power under

Article 370(3) and hence does not come to the aid of the Union of India.

b. Applying the entire Constitution to Jammu and Kashmir through

exercise of power under Article 370(1)(d)

418. Article 370(1)(c) applies the provisions of Articles 1 and 370 to the State of

Jammu and Kashmir. Article 370(1)(d) confers the President with the power

to apply “other” provisions of the Constitution subject to “exceptions and

modifications”. The President issued CO 272 in exercise of power under

Article 370(1)(d) by which all the provisions of the Constitution were applied

to Jammu and Kashmir. The petitioners argue that Article 370(1)(d) only

contemplates a piece-meal approach, that is the application of specific

provisions of the Constitution and not the application of the Constitution as a

whole. They argue that the entire Constitution can only be applied by the

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289

exercise of power under Article 370(3) by issuing a declaration that Article

370 shall cease to exist.

419. We do not agree with the argument of the petitioners. Article 370(1)(d) states

that “such other provisions” shall apply. The power under Article 370(1)(d)

can be used to apply one provision, more than one provision, an entire Part

of the Constitution, or all the provisions of the Constitution (that is, the entire

Constitution). The provision does not make a distinction between one or all

provisions of the Constitution. Non-application of mind cannot be claimed

merely because the Constitution Order applies all provisions of the

Constitution to Jammu and Kashmir in one go.

420. The application of all the provisions of the Constitution has the same effect as

exercising power under Article 370(3) declaring that Article 370 ceases to

exist because when Article 370 ceases to exist, all the provisions of the

Constitution automatically apply to Jammu and Kashmir. However, there is a

crucial difference. The exercise of power under Article 370(1)(d) to apply all

provisions of the Constitution is reversible and modifiable. That is, the

President could issue another order omitting or modifying certain provisions

of the Constitution in its application to Jammu and Kashmir. This Court in

Sampath Prakash (supra) held that the power of the President to issue a

Constitutional order under Article 370(1)(d) includes the power to modify or

amend the order in terms of Section 21 of the General Clauses Act 1897.

Thus, an order issued Article 370(1)(d) applying all the provisions of the

Constitution to the State can be amended, rescinded or modified. However,

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the exercise of power under Article 370(3) is irreversible. Once issued, the

special status of the State ceases to exist. Thus, while applying all the

provisions of the Constitution by exercising power under Article 370(1)(d), a

conscious decision is being made to apply the entire Constitution but not

abrogate the special provision. In the subsequent section, we have elucidated

the Constitutional Orders issued in exercise of power under Article 370(1)(d)

applying the provisions of the Constitution to Jammu and Kashmir to bring out

the point that CO 273 is the culmination of the process of integration. The

observations equally apply to the exercise of power to issue CO 272.

c. Securing the concurrence of the Union Government under the second

proviso to Article 370(1)(d)

421. Article 370(1)(d) states that the President may by order specify which of the

provisions of the Constitution other than Articles 1 and 370 shall apply to

Jammu and Kashmir. The second proviso to Article 370(1)(d) stipulates that

if the provision does not relate to matters in the IoA, the President must issue

the order with the concurrence of the Government of the State of Jammu and

Kashmir. In exercise of the power under Article 370(1)(d), the President

issued CO 272 by which all provisions of the Constitution of India were applied

to the State of Jammu and Kashmir. The CO states that the President issued

the CO “with the concurrence of the Government of the State of Jammu and

Kashmir”. The phrase Government of the State as it occurs in Article 370 was

defined in CO 1965 to mean the Governor on the aid and advice of the Council

of Ministers. However, it was the President giving concurrence since the

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Governor had by then dissolved the Legislative Assembly of State and the

President by the 2018 Proclamation assumed to himself “all the functions of

the Government of the said State and all powers vested in or exercisable by

the Governor of that State under the Constitution”. The petitioners have

challenged CO 272 on the ground that the Union Government (acting through

the President) could not have given concurrence for issuing a CO 272.

422. Applying the standard devised above to test the validity of exercise of power

by the President when the Proclamation is in force, the petitioner has to first

prove that the exercise of power was mala fide.

423. The effect of applying all the provisions of the Constitution without any

modifications or exceptions is that the Constitution as a whole applies to

Jammu and Kashmir in a manner similar to other States. Thus, the distinction

that Article 370 sought to bring between Jammu and Kashmir and the other

states in the First Schedule would cease to exist. As already observed, an

order applying all the provisions of the Constitution in exercise of power under

Article 370(1)(b) has the same effect of declaring that Article 370 ceases to

exist in exercise of the power under Article 370(3).

424. The Explanation to Article 370 at the time of the adoption of the Constitution

stated that the Maharaja of the State shall be the Government of the State for

the purposes of the provision. The President issued CO 44 in exercise of the

power under Article 370(3) upon the recommendation of the Constituent

Assembly to amend the Explanation to Article 370. In the amended

Explanation to Article 370, Government of the State meant the Sadar-i-

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Riyasat. The President then issued CO 1965 in exercise of power under

Article 370(1)(b) by which Article 367 (the interpretation provision) was

amended in its application to Jammu and Kashmir. A provision was added to

Article 367 that reference to Sadar-i-Riyasat in the Explanation to Article 370

shall mean the Governor. The petitioners in Damnoo (supra) challenged the

CO on the ground that it brought an amendment of Article 370 in exercise of

the power under Article 370(1)(d) instead of Article 370(3). It was argued that

Article 370 can only be amended through Article 370(3) by constituting a fresh

constituent assembly or through Article 368.

425. This Court while rejecting the argument of the petitioner observed that the

Explanation only recognised the constitutional position as it existed in the

State. This Court observed that the Governor, similar to the Sadar-i-Riyasat,

is the head of the State and though the Governor is not elected as was the

Sadar-i-Riyasat, he exercises the power under the aid and advice of the

Government of the State. Hence, the “fundamental character of

representative government” is not altered.

426. The judgment of the Constitution Bench in Damnoo (supra) holds that the

fundamental character of representative democracy underlines the provisos

to Article 370(1)(d) and 370(1)(b) by which the concurrence and consultation

of the Government of the State is required before the President issues an

order expanding the legislative powers of the Union in the State or applying

the provisions of the Constitution of India to Jammu and Kashmir. As

discussed in the preceding section of this judgment, the power under Article

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370(1)(b) and 370(1)(d) could only be exercised with the collaboration

between the Union and the State. The purpose which the condition seeks to

serve (collaboration between the federal units and representative democracy)

would be lost if the President secures his own concurrence while exercising

the power.

427. However, in the present case, the President seeking the concurrence of the

Union Government instead of the Government of the State to issue CO 272

is not invalid because:

a. The effect of applying all the provisions of the Constitution to the State

through the exercise of power under Article 370(1)(d) is the same as an

exercise of power under Article 370(3) notifying that Article 370 shall

cease to exist, that is, all provisions of the Constitution of India will apply

to the State of Jammu and Kashmir, except for the fact that the former

can be reversed while the latter cannot;

b. The President has the power under Article 370(3) to unilaterally notify

that Article 370 shall cease to exist;

c. Consultation and collaboration between both the units will only be

necessary where the application of the provisions of the Indian

Constitution to the State would require amendments to the State

Constitution because as explained above the purpose of the

requirements of consultation and collaboration is for the smooth

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functioning of governance in the State and to ensure that the provisions

of the Constitution of Jammu and Kashmir are not inconsistent with the

provisions of the Constitution of India;

d. The principle of consultation and collaboration underlying the provisos

to Article 370(1)(d) would not be applicable where the effect of the

provision is the same as Article 370(3). Since the effect of applying all

the provisions of the Constitution to Jammu and Kashmir through the

exercise of power under Article 370(1)(d) is the same as issuing a

notification under Article 370(3) that Article 370 ceases to exist, the

principle of consultation and collaboration are not required to be

followed;

e. The President in exercise of the power under Article 370(1)(d) issued

CO 272 applying all the provisions of the Constitution to the State of

Jammu and Kashmir. Thus, the concurrence of the Government of the

State under the second proviso to Article 370(1)(d) was not required to

be secured in the first place; and

f. The exercise of power is mala fide only if power was exercised with an

intent to deceive. Deception can only be proved if the power which is

otherwise unavailable to the authority or body is exercised or if the

power that is available is improperly exercised. Since the concurrence

of the State Government was not required for the exercise power under

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Article 370(1)(d) to apply all provisions of the Constitution to the State,

the President securing the concurrence of the Union of India (on behalf

of the State Government) is not mala fide.

428. In view of the above discussion, the concurrence of the Government of the

State was not necessary for the President to exercise power under Article

370(1)(d) to apply all provisions of the Constitution to Jammu and Kashmir.

The exercise of power by the President under Article 370(1)(d) to issue CO

272 is not mala fide. Thus, CO 272 is valid to the extent that it applies all the

provisions of the Constitution of India to the State of Jammu and Kashmir.

vii. The Challenge to CO 273

429. The President in exercise of the power under Article 370(3) and upon the

recommendation of Parliament declared that Article 370 shall cease to exist.

The provision was substituted with a clause which stipulated that all

provisions of the Constitution as amended from time to time, without any

modifications or exceptions shall apply to the State of Jammu and Kashmir

notwithstanding anything contrary in any provision of the Constitution of India

or Jammu and Kashmir or any law. We have in the preceding segment of the

judgment held the substitution of the phrase Constituent Assembly of the

State with Legislative Assembly of the State by CO 272 is invalid. The Union

of India made an alternative argument that the power under Article 370(3)

subsists independent of the proviso after the Constituent Assembly of the

State was dissolved in 1957. If this contention is accepted then the invalidity

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of the substitution to the proviso to Article 370(3) would not affect the exercise

of power by the President under the provision to CO 273.

430. We have in the preceding portion of this judgment held that the President has

the power to unilaterally issue a notification under Article 370(3) declaring that

Article 370 shall cease to exist or that it shall exist with such modifications and

that the dissolution of the Constituent Assembly does not affect the scope of

power held by the President under Article 370(3). The next issue that falls for

the consideration of this Court is whether the exercise of power under Article

370(3) in issuing CO 273 was justified. The President while deciding if the

power under Article 370(3) must be exercised determines if the special

circumstances which warranted a special solution in the form of Article 370

have ceased to exist. This is a policy decision which completely falls within

the realm of the executive. The Court cannot sit in review of the decision of

the President on whether the special circumstances which led to the

arrangement under article 370 have ceased to exist. However, the decision is

not beyond the scope of judicial review. It is settled law that the exercise of

executive power can be challenged on the ground that it is mala fide.

431. The petitioners have referred to the questions which were asked in Parliament

after the Proclamation under Article 356 was issued about whether the

Government proposed to repeal Article 370.

282

The Union Government did

not give a categorical answer to the questions which were raised in

282

Question asked by Shri Prabhat Jha answered on 26.6.2019; Question asked by Shri Sanjay Sethi answered

on 10.7.2019; Question posed by Shri Jai Prakash answered on 23.7.2019

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Parliament. This in itself does not lead to the conclusion that the exercise of

power was mala fide, irrational and without application of mind.

432. At this stage, the Constitutional orders which were issued by the President in

exercise of powers under Article 370(1) applying the provisions of the

Constitution must be referred to.

433. On 26 January 1950, the President issued the Constitution (Application to

Jammu and Kashmir) Order 1950

283

in consultation with the Government of

Jammu and Kashmir. Paragraph 2 to CO 10 states that Parliament may enact

laws for Jammu and Kashmir with respect to matters specified in the First

Schedule to the CO which corresponds to the matters specified in the IoA.

Paragraph 3 states that in addition to Articles 1 and 370, the provisions in the

Second Schedule shall apply to Jammu and Kashmir subject to such

modifications and exceptions as specified. The subjects in List I of the

Seventh Schedule on which Parliament could make laws were Entries 1-6, 9-

22, 25-31, 41, 72-77, 80, 93-96. The constitutional provisions which were

made applicable with exceptions and modifications were:

• Part V [The Union],

• Part XI [Relations between the Union and the States],

• Part XII [Finance, Property, Contracts and Suits],

283

“CO 10”

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• Part XV [Elections],

• Part XVI [Special Provisions relating to certain classes],

• Part XVII [Official language],

• Part XIX [Miscellaneous],

• Part XX [Amendment of the Constitution],

• Part XXI [Temporary Transitional and Special Provisions],

• Part XXII [Short Title, Commencement, Authoritative Text in Hindi

and Repeals],

• First Schedule, Second Schedule, Third Schedule, Fourth Schedule and

Eight Schedule.

434. On 14 May 1954, the President issued with the concurrence of the Jammu

and Kashmir government, the Constitution (Application to Jammu and

Kashmir) Order 1954

284

, in supersession of CO 10 as amended from time to

time. Paragraph 2 set out those provisions of the Constitution which in

addition to Article 1 and Article 370 would be applicable to the State of Jammu

284

‘CO 48”

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and Kashmir with exceptions and modifications. In Article 3 of the

Constitution, the following proviso was introduced:

“Provided further that no Bill providing for increasing or diminishing

the area or the State of Jammu and Kashmir or altering the name or

boundary of that State shall be introduced in Parliament without the

consent of the Legislature of that State.”

435. CO 48 amended Article 35 and introduced Article 35A as a new Article into

the Constitution in the following terms:

“In article 35-

References to the commencement of the Constitution shall be

construed as references to the commencement of this Order;

In clause (a) (i), the words, figures and brackets “clause (3) of article

16, clause (3) of article 32” shall be omitted; and

After clause (b), the following clause shall be added, namely :-

“(c) no law with respect to preventive detention made by the

Legislature of the State of Jammu and Kashmir, whether before or

after the commencement of the Constitution (Application to Jammu

and Kashmir) Order, 1954, shall be void on the ground that it is

inconsistent with any of the provisions of this Part, but any such law

shall, to the extent of such inconsistency, cease to have effect on

the expiration of five years from the commencement of the said

Order, except as respects things done or omitted to be done before

the expiration thereof”.

After article 35, the following new article shall be added, namely:-

“35A. Saving of laws with respect to permanent residents and their

rights – Notwithstanding anything contained in this Constitution, no

existing law in force in the State of Jammu and Kashmir, and no law

here-after enacted by the Legislature of the State-

defining the classes of persons who are, or shall be, permanent

residents of the State of Jammu and Kashmir; or

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conferring on such permanent residents any special rights and

privileges or imposing upon other persons any restrictions as

respects-

employment under the State Government;

Acquisition of immovable property in the State;

Settlement in the State; or

Right to scholarships and such other forms of aid as the State

Government may provide.

Shall be void on the ground that it is inconsistent with or takes away

or abridges any rights conferred on the other citizens of India by any

provision of this Part.”

CO 48 also added clause (4) into Article 367 of the Constitution in the following

terms:

“(4) For the purposes of this Constitution as it applies in relation to

the State of Jammu and Kashmir-

References to this Constitution or to the provision thereof shall be

construed as references to the Constitution or the provisions thereof

as applied in relation to the said State;

References to the Government of the said State shall be construed

as including references to the Sadar-i-Riyasat acting on the advice

of this Court of Ministers ;

References to a High Court shall include references to the High

Court of Jammu and Kashmir;

References to the Legislature or the Legislative Assembly of the

said State shall be construed as including references to the

Constituent Assembly of the said State;

References to the permanent residents of the said State shall be

construed as meaning persons who, before the commencement of

the Constitution (Application to Jammu and Kashmir) Order, 1954,

were recognised as State subjects under the laws in force in the

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State or who are recognised by any law made by the Legislature of

the State as permanent residents of the State; and

References of the Rajpramukh shall be construed as references to

the person for the time being recognised by the President as the

Sadar-i-Riyasat of Jammu and Kashmir and as including references

to any person for the time being recognised by the President as

being competent to exercise the powers of the Sadar-i-Riyasat.”

436. The amending power under Article 368 of the Constitution was modified in

relation to the State of Jammu and Kashmir by the insertion of the following

proviso:

“Provided further that no such amendment shall have effect in

relation to the State of Jammu and Kashmir unless applied by order

of the President under clause (1) of article 370.”

437. CO 48 applied some Parts of the Constitution to Jammu and Kashmir but with

exceptions and modifications. These Parts were:

• Part I [Union and its Territory],

• II [Citizenship],

• III [Fundamental Rights],

• V [The Union],

• XI [Relations between the Union and the States],

• XII [Finance, Property, Contracts and Suits],

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• XIII [Trade, Commerce and Intercourse within the territory of

India],

• XIV [Services under the Union and the States],

• XV [Elections],

• XVI [Special Provisions relating to certain classes],

• XVII [Official language],

• XVIII [Emergency provisions],

• XIX [Miscellaneous],

• XX [Amendment of the Constitution],

• XXI [Temporary Transitional and Special Provisions],

• XXII [Short Title, Commencement, Authoritative Text in Hindi

and Repeals],

• First Schedule, Second Schedule, Third Schedule, Fourth Schedule,

Seventh Schedule, Eight Schedule, Ninth Schedule.

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Other notable features of CO 48 were:

a. The introduction of a separate provision for permanent residents under

Article 7;

b. The removal of references to Scheduled Tribes from Article 15(4);

c. Application of Articles 19, 22, 31, 31A and 32 with some modifications.

Clause (7) was added by CO 48 to Article 19 of the Constitution in the

following terms:

“(7) The words "reasonable restrictions" occurring in clauses (2), (3),

(4) and (5) shall be construed as meaning such restrictions as the

appropriate Legislature deems reasonable.”

438. The CO also specified that List II and List III of the Seventh Schedule shall be

omitted. With respect to List I, a few entries were substituted (entries 3, 43,

81, 53, 72 and 76) and omitted (entries 44, 50, 52, 55, 60, 67, 69, 78, 79, and

97). Entry 97 of List I which grants Parliament the residuary power to enact

laws with respect to any matter not enumerated in List II or List III including

any tax not mentioned in either of those lists was omitted.

439. On 16 January 1958, the President issued CO 55 so as to expand the powers

of the Central government in matters pertaining to the taxation of inter-state

commerce. CO 55 modified the application of Articles 269 and 286 and

inserted a new entry into the Seventh Schedule.

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440. On 26 February 1958, the Constitution of India as in force on 15 February

1958 was applied with exceptions and modifications. The following provisions

of the Constitution were also applied to Jammu and Kashmir with suitable

modifications:

• Article 149, 150 and 151 were applied [relating to CAG, forms of accounts

and audit]

• Article 266 [consolidated funds],

• Article 267(2) [contingency fund],

• Article 273 [Grant in lieu of exports duty on jute and jute products],

• Article 282 [grants from revenues],

• Article 283 [law to be made for withdrawal from contingency fund],

• Article 284 [custody of deposits with public servants and courts],

• Article 298 [Power to carry on trade],

• Article 299 [contractual powers of the State in the name of Governor]

• Article 300 [suits and proceedings] were applied to Jammu and Kashmir.

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305

• Part XIV relating to services under the State was applied with suitable

modifications.

• The Union List of the Seventh Schedule was modified as under :

“(i) for entry 3, the entry '3. Administration of cantonments’ shall be

substituted;

(ii) entries 8, 9 and 34, the words 'trading corporations including'

in entry 43, entries 44, 50, 52, 55 and 60, the words 'and records' in

entry 67, entries 69, 78 and 79, the words 'inter-State migration' in

entry 81, and entry 97 shall be omitted; and

(iii) in entry 72, the reference to the States shall be construed as

not including a reference to the State of Jammu and Kashmir.”

441. CO 56 deleted in clause 4(d) of Article 367, the reference to the Legislative

Assembly as including references to the Constituent Assembly. The clause

was added in 1954 and, following the adoption of the Jammu and Kashmir

Constitution, the clause came to be deleted. On 9 February 1959, CO 57

which was issued by the President made the provisions of Entry 69 of the

Union List (cultivation, manufacture and sale for export of opium) available for

Parliament in its legislative domain.

442. On 23 April 1959, as a consequence of CO 59, the exceptions and

modifications to Article 19 and Article 35(C) made by C.O of 1954 were

extended from five to ten years. On 20 January 1960, Part VI of the

Constitution (“the states”) was applied with suitable modifications (to the

exclusion of Articles 153-217, 219, 221, 223 and 237). The provision was

added to enable the transfer of judges on the recommendation of the Sardar-

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306

i-Riyasat. A new clause was introduced into Article 229 of the Constitution to

provide that transfers to or from State of Jammu and Kashmir shall be made

after consultation with the Sadar-i-Riyasat.

443. On 22 June 1960, Entry 50 of the Union List in the Seventh Schedule

(Establishment of Standards of Weight and Measure) was made available to

Parliament. On 2 May 1961, as a consequence of CO 62, Entry 50

(“Industries, the control of which by the Union is declared by Parliament by

law to be expedient in the public interest”) was brought within the legislative

domain of Parliament in relation to Jammu and Kashmir.

444. On 26 September 1963, CO 66 was issued. Article 246 of the Constitution

which originally applied with one clause by virtue of CO 48 of 1954 was

applied with the modification that Parliament would have the power to make

laws in respect of those Entries in the Union List and in the Concurrent List

which were applicable to Jammu and Kashmir. Article 254 was also applied

so as to ensure the supremacy of Parliamentary legislation in the case of a

repugnancy with State legislation on areas which fell within the domain of

Parliament. The Seventh Schedule was made applicable with certain

modifications in the following terms:

“(a) In the Union List -

(i) for entry 3, the entry "3. Administration of cantonments" shall be

substituted;

(ii) entries 8, 9 and 34, the words "trading corporations, including"

in entry 43, entries 55 and 60, the words "and records" in entry 67,

entries 78 and 79, the words "Inter-State migration" in entry 81,

and entry 97 shall be omitted.

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307

(iii) in Entry 44, after the words "but not including universities", the

words "in so far as such corporations relate to the legal and medical

professions" shall be inserted and

(iv) in entry 72, the references to the States shall be construed as

not excluding a reference to the State of Jammu and Kashmir.

(b) The State List shall be omitted.”

The Concurrent List was applied for the first time in the following

form :

“(c) In the Concurrent List-

(i) for entry 26, the entry "26 Legal and medical professions." shall

be substituted;

(ii) entries 1 to 25 (both inclusive) and entries 27 to 44 (both

inclusive) shall be omitted; and

(iii) in entry 45, for the words and figures "List II or List III', the words

"this List" shall be substituted”

445. On 6 March 1964, by the issuance of CO 69, the exceptions and

modifications which were made to Article 19 and Article 35(C) by C.Os 48 and

59 were extended from 10 to 15 years. Changes were earlier made in the

Concurrent List, to the following effect:

"(c) In the Concurrent List..

(a) for entry 1, the following entry shall he substituted, namely:

“1. Criminal law (excluding offences against laws with respect to any

of the matters specified in List I and excluding the use of naval,

military or air forces or any other armed forces of the Union in aid of

the civil power) in so far as such criminal law relates to offences

against laws with respect to trade and commerce in. and the

production, supply and distribution and price control of gold.":

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(ii) in entry 24, after the words and maternity benefits", the words

"bar only with respect to labour employed in the cool-mining

industry" shall be inserted.

(iii) tor entry 26, the entry "26. Legal and medical professions" shall

be substituted:

(iv) for entry 33, the following entry shall he substituted, namely:

“33. Trade and commerce in, and the production. supply and

distribution of, the products of any industry where the control of such

industry by the Union is declared by Parliament by law io be

expedient in the public interest, in so far as such industry relates to

gold, and imported goods of the same kind as such products.";

(v) for entry 34, the entry "34. Price control of gold." shall be

substituted,

(vi) entries 2 to 23 (both inclusive). entry 25, entries 27 to 32 (both

inclusive) and entries 35 to 44 (both inclusive) shall be omitted; and

(vii) in entry 45, for the words and figures "List Il or List III", the words

"this List' shall be substituted.”

446. On 2 October 1964, further Entries in the Union List and the Concurrent List

were made applicable as a result of CO 70. In the Union List, Entry 55

(Regulation of Labour and Safety in mines and oilfields) and Entry 60

(Sanctioning of cinematograph films for exhibition) were made applicable. In

the Concurrent List, Entry 1 was substituted so as to read:

“Criminal law (excluding offences against laws with respect to any

of the matters specified in List I and excluding the use of naval,

military or air force or any other armed forces of the Union in aid of

the civil power) in so far as such criminal law relates to offences

against laws with respects to any of the matter specified in this List”

Entry 30 was substituted to read as “vital statistics in so far as they relate to

births and deaths including registration of births and deaths”. Entries 25

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309

(Education), 39 (Newspapers, books and printing presses) became available

in the Concurrent List.

447. On 21 November 1964, by CO 71, CO 48 of 1954 was amended. As a

consequence, Article 356 of the Constitution was applied in a modified form

so that references to the Constitution would include the Constitution of Jammu

and Kashmir.

448. On 10 April 1965, the Legislative Assembly passed the Constitution of Jammu

and Kashmir (Sixth Amendment) Act 1965 as a consequence of which the

expression “Sadar-i-Riyasat” and “Prime Minister” in the Constitution of the

State were to be substituted with the expressions “Governor” and “Chief

Minister”.

449. On 17 May 1965, further changes were made in the applicability of the

Seventh Schedule to the Constitution by CO 72. As a result, additional Entries

in the Union List : Entry 43, (incorporation, regulation and winding up of

trading corporations, including banking, insurance and financial corporations

but not including co-operative societies) and Entry 78 (Constitution and

organisation of the High Courts except provisions as to officers and servants

of High Courts; persons entitled to practise before the High Court) became

available to Parliament in the Union List. In the Concurrent List, Entries 33

285

33. Trade and Commerce in, and the production, supply and distribution of,-

(a) the products of any industry where the control of such industry by the Union is declared by Parliament by

law to be expedient in public interest, and imported goods of the same kind as such products;

(b) foodstuffs, including edible oilseeds and oils;

(d) raw cotton, whether ginned or unginned, and cotton seed; and

(e) raw jute.

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and 34

286

became available within the Legislative domain of Parliament

without modifications. Entries 4

287

, 11

288

and 35

289

were made applicable.

450. On 24 November 1966, CO 74 was issued as a consequence of which the

Constitution as in force on 20 June 1964 was applied with exceptions and

modifications. The application of Article 222 of the Constitution was modified

so as to provide for consultation with the Governor while transferring the

judges of the High Court. CO 74 modified the application of CO 48, insofar as

Article 367(4) was concerned so as to provide for the following:

“(4) For the purposes of this Constitution as it applies in relation to

the State of Jammu and Kashmir-

(a) references to this Constitution or to the provisions thereof shall

be construed as references to the Constitution or the provisions

thereof as applied in relation to the said State;

(aa) references to the person for the time being recognised by the

President on the recommendation of the Legislative Assembly of the

State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the

advice of the Council of Ministers of the State for the time being in

office, shall be construed as references to the Governor of Jammu

and Kashmir;

(b) references to the Government of the said State shall be

construed as including references to the Governor of Jammu and

Kashmir acting on the advice of his Council of Ministers;

Provided that in respect of any period prior to the 10th day of April,

1955, such references shall be construed as including references to

the Sadar-i-Riyasat acting on the advice of his Council of Ministers;

Court of Jammu and Kashmir;

286

Price control.

287

Removal from one State to another State of prisoners, accused persons and persons subjected to preventive

detention for reasons specified in Entry 3 of this List.

288

Administrators-general and official trustees.

289

Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied.

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(d) references to the legislature or the legislative assembly of the

said state shall be construed as including references to the

constituent assembly of the said state;

(d) references to the permanent residents of the said State shall be

construed as meaning persons who, before the commencement of

the Constitution (Application to Jammu and Kashmir) Order, 1954,

were recognised as State subjects under the laws in force in the

State or who are recognised by any law made by the Legislature of

the State as permanent residents of the State; and

(e) references to a Rajpramukh Governor shall include references

to the Governor of Jammu and Kashmir:

Provided that in respect of any period prior to the 10th day of April,

1555, such references shall be construed as references to the

persons recognised by the President as the Sadar -Riyasat of

Jammu and Kashmir and as including references to a person

recognised by the President as being competent to exercise the

powers of the Sadar-i-Riyasat."

In the Union List, Entry 44

290

was made available to Parliament. In the

Concurrent List, Entries 24

291

and 26

292

were applied.

On 29 June 1966, CO 75 was issued as a result of which the application of

Article 81 of the Constitution in regard to the delimitation of seats was

provided. The provisions of Article 81 were modified by the insertion of the

following clause:

“In article 81 for clauses (2) and (3), the following clause shall be

substituted, namely :-

(2) For the purposes of sub-clause (a) of clause (1), -

there shall be allotted to the State six seats in the House of the

People;

the State shall be divided into single-member territorial

constituencies by the Delimitation Commission constituted under

290

Incorporation, regulation and winding up of corporations whether trading or not, with objects not confined to

one State but not including universities.

291

Welfare of labour including conditions of work, provident funds, employers’ liability, workmen’s compensation,

invalidity and old age pensions and maternity benefits.

292

Legal, medical and other professions.

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312

the Delimitation Commission Act, 1962, in accordance with such

procedure as the Commission may deem fit;

the constituencies shall, as far as practicable, be geographically

compact areas, and in delimiting them regard shall be had to

physical features, existing boundaries of administrative units,

facilities of communication and public convenience;

the constituencies into which the State is divided shall not comprise

the area under the occupation of Pakistan; and

until the dissolution of the existing House of the People, the

representatives of the State in that House shall be appointed by the

President on the recommendation of the Legislature of the State.”

On 13 February 1967, as a result of the issuance of CO76 the Constitution

in force after the 19

Amendment was applied with suitable exceptions and

modifications. On 5 May 1967, certain incidental changes were made in

regard to the applicability of the Seventh Schedule in terms of which Entry

293

of the Concurrent List was applied. On 11 August 1967, CO 79 was

issued as a consequence of which the Constitution in force after the 21

Amendment was applied with suitable exceptions and modifications as on

date.

451. On 26 December 1967, Entries 16

294

and 18

295

of the Concurrent List were

applied by CO 80 and on 9 February 1968, Entry 72 of the Union List was

modified in its application from CO 48 of 1954. On 17 February 1969, CO 85

293

Drugs and poisons, subject to the provisions of Entry 59 of List I with respect to opium.

294

Lunacy and mental deficiency, including places for the reception or treatment of lunatics and mental deficients.

295

Adulteration of foodstuffs and other goods.

PART E

313

applied the provisions of Article 248 of the Constitution in a substituted form,

giving exclusive power to Parliament to make laws in the following domain:

“248. Residuary powers of legislation.- Parliament has exclusive

power to make any law with respect to prevention of activities

directed towards disclaiming questioning or disrupting the

sovereignty and territorial integrity of India or secession of a part of

the territory of India from the Union or causing insult to the Indian

National Flag, the Indian National Anthem and this Constitution.”

The above CO hence provided Parliament with the residuary powers

to legislation in the sphere dealing with the sovereignty and integrity

of India.”

452. On 31 March 1969, CO 86 extended from 15 to 20 years the exceptions and

modifications which were made to Articles 19 and 35C by COs 48 and 59. On

24 August 1971, as a result of CO 89, the 21

Amendment to the Constitution

and Section 5 of the 23

Amendment came to be applied. Clause 3 of Article

32 of the Constitution was omitted and Part VI was applied with suitable

modifications

296

. On 8 November 1971, as a consequence of CO 90 a minor

change was made to the Concurrent List and Entry 43

297

. On 29 November

1971, the 24

Amendment to the Constitution was applied by CO 91.

453. On 24 February 1972, as a result of CO 92, Entry 60

298

of the Union List was

applied. On 6 May 1972, upon the issuance of CO 93, the scope of Article

248 of the Constitution was widened so as to enable Parliament to exclusively

legislate for imposing taxes on foreign travel by sea or air, Inland air travel,

296

Articles 153-217, 219, 221, 223, 224, 224A, 225, 227-237 were omitted.

297

Recovery in a State of claims in respect of taxes and other public demands, including arrears of land-revenue

and sums recoverable as such arrears, arising outside that State.

298

Sanctioning of cinematograph films for exhibition.

PART E

314

postal articles, including money orders, phonograms and telegrams

299

. As a

consequence Entry 97, the residuary entry in the Union List was applied in a

modified form

300

454. As a result of CO 94 issued in 1972, the amendments to the Constitution until

the 26

Amendment were applied. Article 290 of the Constitution dealing with

the adjustment in respect of certain expenses and pensions was applied.

Certain changes were made in the application of Entry 2 (Criminal Law), Entry

12 (Evidence) and Entry 13 (Civil Procedure) of the Concurrent List.

455. On 10 August 1972 as a result of CO 95, Entry 67 of the Union List

301

was

applied without modifications while Entries 36 (Factories), 40 (Archaeological

sites and remains other than those declared by or under law made by

Parliament) and 42 (Acquisition and requisitioning of property) were applied

with modifications.

456. On 1 May 1974 as a result of CO 97, the exceptions and modifications which

were made to Article 19 and Article 35C by C.Os 48 and 59 were extended

from twenty to twenty-five years. On 26 June 1974 as a result of CO 98, the

299

Article 248 as substituted by CO 93 read as follows:

248. Residuary powers of legislation- Parliament has exclusive power to make any law with respect to –

(a) prevention of activities directed towards disclaiming questioning or disrupting the sovereignty and territorial

integrity of India or bringing about cession of a part of the territory of India or session of a part of the territory of

India from Union or causing insult to the Indian National Flag, the Indian National Anthem and this Constitution;

and

(b) taxes on –

(i) foreign travel by sea or air;

(ii) inland air travel;

(iii) postal articles, including money orders, phonograms and telegrams.

300

Prevention of activities directed toward disclaiming, questioning or disrupting the sovereignty and territorial

integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of

India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and this Constitution

taxes on foreign travel by sea or air, or inland air travel and on postal articles, including money orders, phonograms

and telegrams.

301

Ancient and historical monuments and records, and archaeological sites and remains, [declared by or under

law made by Parliament] to be of national importance.

PART E

315

Amendment and Section 2 of the 30

and 31

Constitutional

Amendments were applied. The provisions with regard to delimitation were

updated.

457. The provisions of Article 352 of the Constitution dealing with the proclamation

of emergency as modified in their application by CO 48 of 1954 were further

modified on 29 June 1975 by CO 100 so as to provide for an ex post facto

request or concurrence. By CO 101 which was issued on 23 July 1975, the

application of Article 368 of the Constitution was modified to provide for

restrictions on the power of the State Legislative Assembly to amend the

Constitution of Jammu and Kashmir regarding the terms of service and the

privileges and immunities of the Governor and the superintendence, direction

and control of elections by the Election Commission of India

302

. By CO 103

which was issued on 2 March 1976 and CO 104 which was issued on 25 May

1976, provisions were made for the applicability of the 26

, 30

, 31

, 33

and

Amendments to the Constitution as specified.

458. On 12 October 1976 upon the issuance of CO 105, the application of the 26

, 31

, 33

, 38

and 39

Amendments was envisaged to the extent as

specified. On 31 December 1976, the Ninth Schedule was amended by CO

106. On 31 December 1977 as a result of CO 108, Section 2 of the 25

302

clause 4 of Article 368 as added by CO 101 read as follows:

(4) No Law made by the Legislature of the State of Jammu and Kashmir seeking to make any change in or in the

effect of any provision of the Constitution of Jammu and Kashmir relating to-

(a) appointment, powers, functions, duties, emoluments, allowances, privileges or immunities of the Governor; or

(b) superintendence, direction and control of elections by the Election Commission of India, eligibility for inclusion

in the electoral rolls, without discrimination, adult suffrage and composition of the Legislative Council being matters

specified in sections 138, 139, 140 and 50 of the Constitution of Jammu and Kashmir.

shall have any effect unless such law has after having been reserved for the consideration of the President received

his assent.

PART E

316

Amendment and the 40

Amendment were applied to the State of Jammu

and Kashmir.

459. On 4 June 1985 as a result of CO 122, Article 248 of the Constitution as it

applied to the State of Jammu and Kashmir was modified by empowering

Parliament to make law for prevention of terrorist activities and the Union List

as they applied to the State was amended so as to empower Parliament to

legislate on the subject. Similar changes were made to Entry 97 of the Union

List. Entries 2 (Criminal Law) and 12 (Evidence) of the Concurrent List were

applied with modifications.

460. On 4 December 1985, CO 124 was issued in terms of which Articles 339 and

342 of the Constitution were applied to the State of Jammu and Kashmir to

allow the President to appoint a Commission for the welfare of Scheduled

Tribes in the State and to notify Scheduled Tribes.

461. During the prevalence of Governor’s rule, CO 129 was issued on 30 July 1986

to provide for the modified application of Article 249. In terms of the

modification, it was envisaged that the Rajya Sabha could by passing a

resolution with a two-thirds majority empower Parliament to make laws on

“any matter specified in the resolution being a matter which is not enumerated

in the Union List or the Concurrent List”. As a consequence, Parliament could

legislate on any subject which would have otherwise been under the sole

competence of the State legislature.

462. The provisions of the anti-defection Law were extended to the State of Jammu

and Kashmir by CO 136 on 20 January 1989. The 61st constitutional

PART E

317

amendment which lowered the voting age from twenty-one to eighteen years

was extended to the State of Jammu and Kashmir by CO 141 on 25 July 1989.

463. On 6 July 2017, CO 269 harmonised the tax administration of the State of

Jammu and Kashmir with the Goods and Services Tax regime as was

prevalent in the rest of the country. As a consequence, Entry 82 of the Union

List

303

was applied with modifications. As a consequence of CO 269, the

Jammu and Kashmir Goods and Services Tax Act 2017, the Central Goods

and Services Tax (Extension to Jammu and Kashmir) Ordinance 2017 and

the Integrated and Goods and Services Tax

304

(Extension to Jammu and

Kashmir) Ordinance 2017, resulted in the CGST

305

, SGST

306

and IGST

307

regime being applicable in Jammu and Kashmir.

464. Since the first Constitution Order issued under Article 370(1)(d) in 1950, the

President has used the power to issue Constitution Orders more than forty

times. As the Constitution of India applied to the State of Jammu and Kashmir

before CO 272 was issued, the following Parts or provisions of the

Constitution were not applied to Jammu and Kashmir:

a. Part IV dealing with the Directive Principles of State Policy;

b. Articles 153 to 213 dealing with the executive power of States, the State

Legislature, and the legislative power of the Governor;

303

Taxes on income other than agricultural income.

304

IGST

305

Central Goods and Services Tax

306

State Goods and Services Tax

307

Integrated and Goods and Services Tax

PART E

318

c. Articles 214 to 217, 219, 221, 223 to 225 dealing with the power of

appointing judges to High Court of Jammu and Kashmir and their

conditions of service;

i. Part VII dealing with the States in Part B of Schedule 1;

ii. Part VIII dealing with Union Territories;

iii. Part X dealing with the Scheduled and Tribal Areas; and

iv. The Fifth and Sixth Schedules.

465. The slew of Constitutional orders issued by the President under Article

370(1)(d) applying various provisions of the Constitution and applying

provisions with modification indicate that over the course of the last seventy

years, the Union and the State has through a collaborative exercise

constitutionally integrated the State with the Union. This is not a case where

only Articles 1 and 370 of the Constitution were applied to the State of Jammu

and Kashmir and suddenly after seventy years the entire Constitution was

being made applicable. 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 in exercise

of the power under Article 370(3) is a culmination of the process of integration.

Thus, we do not find that the President’s exercise of power under Article

370(3) was mala fide.

viii. The status of the Constitution of Jammu and Kashmir

PART E

319

466. It is necessary to determine the status and applicability of the Constitution of

Jammu and Kashmir, in view of COs 272 and 273. In the segment of the

judgment on whether the State of Jammu and Kashmir possesses

sovereignty, this Court analysed the provisions of the Constitution of India and

the Constitution of Jammu and Kashmir and arrived at the conclusion that the

latter is subordinate to the former.

467. Paragraph 2 of CO 272 stipulated that the provisions of the Constitution of

India (as amended from time to time) shall apply in relation to the State of

Jammu and Kashmir. In the preceding segments of the judgment, this Court

has struck down the portion of paragraph 2 of CO 272 which seeks to amend

Article 370 by specifying a modification to Article 367. It was, however, held

that the application of the entire Constitution of India to the State is a valid

exercise of power. CO 273 was issued a day after CO 272 was issued. It

stated that all clauses of Article 370 shall cease to be operative except the

following:

“370. 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, by-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.”

(emphasis supplied)

468. While the modified version of Article 370 provided that all the provisions of the

Constitution of India shall apply to the State of Jammu and Kashmir, CO 272

PART E

320

had already accomplished this. The new provision reiterated CO 272 and

clarified that the Constitution would apply notwithstanding certain provisions

which may have suggested otherwise. This Court has upheld the validity of

CO 273. Significantly, Article 370 (as it now stands) provides that the

Constitution of India shall apply to the State:

a. Without any modifications and exceptions;

b. Notwithstanding anything contrary contained in Article 152 or Article 308

or any other article of the Indian Constitution;

c. Notwithstanding anything contrary contained in any other provision of the

Constitution of Jammu and Kashmir; and

d. Notwithstanding anything contrary contained in any law, document,

judgement, ordinance, order, by-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.

The stipulation that the Constitution of India shall apply to the State

notwithstanding anything contrary contained in any other provision of the

Constitution of Jammu and Kashmir is significant because it clarifies beyond

a shadow of doubt that it is the Constitution of India which is the supreme

governing document in relation to every aspect of governance in the State.

469. The Constitution of India is a complete code for constitutional governance. It

provides for the establishment and scope of powers of the legislature, the

PART E

321

executive, and the judiciary at the level of the Union and the States. It

delineates the Fundamental Rights and the Directive Principles of State

Policy. It regulates aspects of finance and property and provides for Public

Service Commissions. The country and all the States are governed in

accordance with the provisions of the Constitution. Upon the application of

the entire Constitution to the State of Jammu and Kashmir, Jammu and

Kashmir too is liable to be governed in the same manner.

470. The Constitution of Jammu and Kashmir, though subordinate to the

Constitution of India, provided for many of these aspects of governance. This

was necessitated by Article 370 in terms of which it was to apply in parts and

in a gradual manner to the State. The gaps left by the non-application of some

parts of the Constitution of India were filled by the Constitution of the State.

After the abrogation of Article 370 (as it stood before the issuance of CO 272

and CO 273) and the application of the entirety of the Constitution of India to

the State, the Constitution of the State does not fulfil any purpose or serve

any function. Hence, the implicit but necessary consequence of the

application of the Constitution of India in its entirety to the State of Jammu

and Kashmir is that the Constitution of the State is inoperative.

ix. The challenge to the Reorganisation Act on substantive grounds

471. Parliament enacted the Reorganisation Act 2019 in exercise of the power

under Article 3. The Act received the assent of the President on 9 August

2019. Part II of the Reorganisation Act reorganises the State of Jammu and

Kashmir into two Union territories – the Union Territory of Ladakh without a

PART E

322

legislature

308

and the Union Territory of Jammu and Kashmir with a

legislature.

309

The territories of the former comprise Kargil and Leh whereas

the territories of the latter comprise territories other than Kargil and Leh.

310

Section 103 of the Reorganisation Act empowers the President to issue an

order removing any difficulties which arise in giving effect to the provisions of

the statute. In exercise of this power, the President issued the Jammu and

Kashmir Reorganisation (Removal of Difficulties) Second Order 2019 which

states that the territory of Leh district comprises of Gilgit, Gilgit Wazarat,

Chilas, tribal territory and ‘Leh and Ladakh’ except the “present territory of

Kargil.”

311

472. The petitioners’ challenge to the constitutional validity of the Reorganisation

Act is on the following grounds:

a. The Reorganisation Act was enacted without fulfilling the prerequisites in

Article 3; and

b. Article 3 does not empower Parliament to extinguish the character of a

state in its entirety.

In response, the Union of India contended that this Court is not the

appropriate authority to examine the desirability of the exercise of the power

under Article 3 because administrative and other considerations have a

bearing on Parliament’s decision. The Union of India also submitted that the

308

Section 3, Reorganisation Act

309

Section 4, Reorganisation Act

310

Sections 3, 4 Reorganisation Act

311

Section 2, Jammu and Kashmir Reorganisation (Removal of Difficulties) Second Order 2019

PART E

323

sufficiency of the material or the circumstances which necessitated the

exercise of the power under Article 3 lie beyond the realm of judicial review.

Finally, it submitted that Parliament possesses the power to convert a State

into two Union territories.

473. The submissions of the petitioners require this Court to adjudicate on (a) the

scope of the powers of Parliament under Article 3; and (b) whether the

procedure contemplated by Article 3 was complied. In the sections below we

have highlighted a few aspects which must weigh on Courts while determining

the scope of the powers under Article 3.

a. The constitutional history of States and Union territories and the reason

for the existence of Article 3

474. When the Constitution was adopted, the constituent political units in the

country consisted of different types of States (albeit with different structures,

powers, and relationships with the Union Government) and not of States and

Union territories, as we now understand them. At that time, India consisted of

Part A, Part B, and Part C States as detailed in the First Schedule to the

Constitution. Part A States consisted of former Governors’ Provinces (prior to

Independence) and some princely states. The former were governed by

elected legislative bodies as well as a Governor. Part B States consisted

largely of the former princely states and were governed by elected legislative

bodies and the Rajpramukh. Part C States were formerly the Chief

Commissioners’ Provinces

312

(and some princely states) which were

312

Under the Government of India Act 1935

PART E

324

governed by a Chief Commissioner appointed by the President. Additionally,

the Andaman and Nicobar Islands alone found a place in Part D of the First

Schedule. A Lieutenant Governor appointed by the Union Government

oversaw the administration of this territory.

475. Evidently, the constitutional classification of the constituent units in the

country at the time of Independence mirrored their classification by the

colonial power. This was not intended to be a permanent feature. Accordingly,

Article 3 of the Constitution was intended to subserve an arrangement in place

until a reclassification which was suited to the needs of the local populace

and which was based on a careful evaluation of administrative, cultural,

linguistic, financial, and other relevant considerations rather than on the

expediency of the colonial government.

313

The Constituent Assembly was

also cognizant that certain princely states were yet to be integrated into the

country and that some segments of society demanded the organisation of

states on the basis of language. Article 3 therefore empowered Parliament to

reorganise the constituent units of the newly-formed country.

476. Conscious of the imperial basis for the organisation of states and in view of

the growing demand for the organisation of states on a linguistic basis, the

Union Government appointed the States Reorganisation Commission

314

313

See the speech of KT Shah, Constituent Assembly Debates, Volume 7, 17 November 1948 – “… We are all

aware that the existing Units which make up this Federation are not equal inter se are not logical, are not happily

constructed so as to minister to the development of the country or even of the areas themselves. It is necessary,

and it will soon perhaps have to be implemented in some form or another, that these areas be reconstructed. That

would mean that their boundaries, perhaps even their name, and their territories, may be altered, upwards or

downwards …”

314

“Commission”

PART E

325

gauge public opinion and assess the manner in which constituent political

units ought to be rationalised. The Commission was formed to:

“…investigate the conditions of the problem, the historical

background, the existing situation and the bearing of all important

and relevant factors thereon. They will be free to consider any

proposal relating to such reorganisation. The Government expect

that the Commission would, in the first instance, not go into the

details, but make recommendations in regard to the broad principles

which should govern the solution of this problem and, if they, so

choose, the broad lines on which particular States should be

reorganised, and submit interim reports for the consideration of

Government.”

315

477. The Commission submitted its report after undertaking extensive

consultations with members of the public from all States. It found that the

demarcation of the States at the time was based almost entirely on colonial

interests:

“To the extent, therefore, there was a conscious or deliberate design

behind the demarcation of the territories of administrative units, it

was grounded in imperial interests or the exigencies of a foreign

government and not in the actual needs, wishes or affinities of the

people.”

316

478. Based on its analysis of the demarcation of States, the Commission found

that the distinction between the States which existed at that time could not be

maintained. The Commission recommended that:

a. A balanced approach which accounted for all relevant factors (and not

solely language or culture) be adopted to reorganise the States;

b. Part A States and Part B States be of an equal status;

315

Ministry of Home Affairs, Resolution dated 29 December 1953

316

Paragraph 20, Report of the States Reorganisation Commission 1955

PART E

326

c. Part C States be merged with the adjoining States or retained as

independent units with temporary control by the Union Government; and

d. Overall, the constituent units of the country ought to consist of ‘States’

and ‘Territories’ with the latter being centrally administered.

317

479. The Constitution (Seventh Amendment) Act 1956 amended the First

Schedule and modified the categorisation of the constituent units in the

country, largely in accordance with the recommendations made by the

Commission. It removed the distinction between the States. Currently, the

administrative or federal units consist solely of States and Union Territories.

The States Reorganisation Act 1956 was enacted in pursuance of this

amendment to the Constitution. It provided for the territorial changes and the

formation of new States as well as for other matters connected with or

incidental to these changes.

b. The contours of the power under Article 3

480. It is necessary to advert to the principles which animate the Constitution in

general and Article 3 in particular and the Constituent Assembly Debates on

Statehood.

I. Federalism, representative democracy, and the significance of States

481. Democracy and federalism are basic features of the Constitution. The term

‘federal’ is used to indicate the division of powers between the Union or

317

Summary and Conclusions, Report of the States Reorganisation Commission 1955

PART E

327

Central Government and the State Governments. While there are certain

‘unitary’ characteristics present in the constitutional structure in terms of which

the Union Government has overriding powers in some situations, the

existence of federal elements in the form of governments envisaged by the

Constitution is a cornerstone of the polity. This set-up has been described as

quasi-federal, asymmetric federalism or cooperative federalism. This Court

need not engage in a comprehensive discussion of the nature of federalism

postulated by the Indian Constitution. The judgments of this Court in Bommai

(supra), Kuldip Nayar v. Union of India,

318

State (NCT of Delhi) v. Union

of India,

319

and Swaraj Abhiyan (V) v. Union of India

320

extensively discuss

the principles of federalism embodied in the Constitution.

482. The States neither derive their powers from the Union Government nor do

they depend upon the Union Government to exercise their powers under the

structure of the Constitution. Part V of the Constitution inter alia provides for

the structure, functions and powers of the Union Government. Part VI inter

alia provides for the structure, functions and powers of the States. The

Constituent Assembly Debates reveal that the federal nature of our

Constitution was considered to be one of its significant features. Dr. B R

Ambedkar observed:

“… dual polity under the proposed Constitution will consist of the

Union at the Centre and the States at the periphery each endowed

with sovereign powers to be exercised in the field assigned to them

respectively by the Constitution. … the Indian Constitution proposed

318

(2006) 7 SCC 1

319

(2023) 9 SCC 1

320

(2018) 12 SCC 170

PART E

328

in the Draft Constitution is not a league of States nor are the States

administrative units or agencies of the Union Government.”

321

(emphasis supplied)

In response to a remark complaining that the Constitution favoured too strong

a Centre, Dr. B R Ambedkar stated in no uncertain terms that the States were

not dependent upon the Centre for their legislative or executive authority:

“A serious complaint is made on the ground that there is too much

of centralisation and that the States have been reduced to

municipalities. It is clear that this view is not only an exaggeration,

but is also founded on a misunderstanding of what exactly the

Constitution contrives to do. As to the relation between the Centre

and the States, it is necessary to bear in mind the fundamental

principle on which it rests. The basic principle of federalism is that

the legislative and executive authority is partitioned between the

Centre and the States not by any law to be made by the Centre but

by the Constitution itself. This is what Constitution does. The States

under our Constitution are in no way dependent upon the

Centre for their legislative or executive authority. The Centre

and the States are coequal in this matter. It is difficult to see how

such a Constitution can be called centralism.”

(emphasis supplied)

483. The division of legislative and executive competence between the Union and

the federating States and the independence conferred on the federating

States in their own sphere furthers representative democracy. The electorate

elects their representatives to the State Legislature. The State Government

(through the Council of Ministers) is accountable to the Legislative Assembly,

which in turn is accountable to the citizenry. In this manner, the existence of

the States breathes life into democracy by empowering citizens to participate

321

Constituent Assembly Debates, Volume 7, 4 November 1948

PART E

329

in governance. This conception of democracy is fortified by Article 1(1), which

states:

“1. Name and territory of the Union. –

(1) India, that is Bharat, shall be a Union of States.

…”

322

Article 1(1) indicates that the States are essential and indispensable to the

constitutional structure of the country. The Union cannot exist without the

existence of the States.

484. In State (NCT of Delhi) v. Union of India,

323

a Constitution Bench of this

Court described the importance of States in the federal structure in the

following terms:

“131. The interest of the States inherent in a federal form of

Government gains more importance in a democratic form of

Government as it is absolutely necessary in a democracy that the

will of the people is given effect to. To subject the people of a

particular State/region to the governance of the Union, that too, with

respect to matters which can be best legislated at the State level

goes against the very basic tenet of a democracy.”

The existence of States is therefore essential to the constitutional project of

democracy and federalism. Why, then, does the Constitution envisage Union

territories? What purpose do they serve? The following segment considers

these questions.

322

Article 1(1), Constitution of India

323

(2018) 8 SCC 501

PART E

330

II. The reason for the creation of Union territories

485. Despite the centrality of the States to the Constitution and the structure of

governance that it envisages, Union Territories (which are administered by

the Union Government) exist within the constitutional scheme. Every State

has a Legislative Assembly

324

(and some have Legislative Councils

325

addition) with a Governor who acts on the aid and advice of the Council of

Ministers.

326

In contrast, only some Union territories have a Legislative

Assembly.

327

The Union territories are administered by the President acting,

to such extent as he thinks fit, through an Administrator.

328

The President also

has the power to make regulations for certain Union territories.

329

There are

many other differences between these constituent units. In essence, States

are governed by their own governments and are directly accountable to the

citizenry whereas Union territories are governed by the Union Government.

There is no gainsaying that the relationship that the States have with the

Union is different from the relationship that the Union Territories have with the

Union. Generally, States have a degree of autonomy in comparison to Union

Territories. This remains true even if a Union Territory like Puducherry has a

legislative assembly. However, there is no homogenous class of Union

territories. They each have differing levels of autonomy.

324

Article 168

325

Ibid

326

Articles 153 and 163,

327

Article 239A, Constitution of India. Delhi is a sui generis unit which also has a Legislative Assembly and a Chief

Minister; See Article 239AA.

328

Article 239

329

Article 240

PART E

331

486. The Report of the States Reorganisation Commission formed the basis for

the Constitution (Seventh Amendment) Act 1956 by which the constituent

units of India were organised into States and Union territories. The report is

therefore an authoritative source in the endeavour to understand the reasons

for the creation of two categories of constituent units and the reasons for the

creation of Union Territories in particular.

487. The report recommended the creation of two categories of constituent units –

states and territories. States would be the “primary constituent units” and

“cover virtually the entire country” while the territories would be centrally

administered.

330

The report indicated that for the States to enjoy a uniform

status, it was necessary that each of them is capable of surviving as a “viable

administrative unit” which has the financial, administrative and technical

resources to sustain itself.

331

It stated that each state should be able to

establish and maintain institutions to educate and equip its people to carry out

the various functions that it would be required to undertake.

332

recommended the creation of centrally administered territories (or, as we now

know them, Union Territories) if, for “strategic, security or other compelling

reasons,” it was not practical to integrate a small territory with an adjoining

State.

333

488. The report recommended that most of the Part C States merge with adjoining

States inter alia because:

330

Paragraph 285, Report of the States Reorganisation Commission 1955

331

Paragraph 238, Report of the States Reorganisation Commission 1955

332

Ibid

333

Paragraph 237, Report of the States Reorganisation Commission 1955

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332

a. Of the six Part C States with legislatures, only Coorg was in a position

to administer itself without assistance from the Centre and that the other

five were highly dependent on financial assistance from the Centre;

b. The administrative services in the Part C States were inadequate and

had anomalies; and

c. Part C States continued to have close economic links with the adjacent

areas.

334

In addition, for three Part C States – Himachal Pradesh, Kutch, and Tripura –

it recommended that the Union Government should retain supervisory power

for some time to maintain the pace of development.

335

489. The Commission recommended that three constituent units or areas be

retained as territories administered by the Union Government:

“1. Delhi.—Delhi should be constituted into such a centrally-

administered territory; the question of creating a municipal

Corporation with substantial powers should be considered.

(Paragraphs 580 to, 594).

2. Manipur.—Manipur should be a centrally-administered territory

for the time being. The ultimate merger of this State in Assam

should be kept in view. (Paragraphs 723 to 732).

3. Andaman and Nicobar Islands.—The status quo in the Andaman

and Nicobar Islands should continue. (Paragraph 753).”

336

(emphasis supplied)

334

Paragraph 246 to 268, Report of the States Reorganisation Commission 1955

335

Paragraphs 270, 271 Report of the States Reorganisation Commission 1955

336

Summary and Conclusions, Report of the States Reorganisation Commission 1955

PART E

333

490. From the information noticed in these paragraphs, the following aspects need

to be underscored:

a. The Commission recommended that the constituent units which were

“viable administrative units” with financial, administrative and technical

resources be classified as States. The States were to be the primary

constituent units and were autonomous;

b. The Commission recommended that some Part C States which were not

viable administrative units merge with adjoining States. Such mergers

resulted in the retention or development of the features of federalism and

representative democracy for the unit which was absorbed because the

State into which that unit was absorbed had these features. Crucially,

this had the effect of imparting autonomy to the territory which was

absorbed;

c. Where the Commission recommended that certain constituent units be

centrally administered, it largely envisaged the development of

autonomy through eventual mergers with other States or the conferral

of State-like characteristics. It recommended the creation of a municipal

corporation with substantial powers for Delhi. It envisaged the merger of

Manipur with the State of Assam. As for the Andaman and Nicobar

Islands, it noted that some time may elapse before they de jure became

PART E

334

a part of India and that it was not desirable to fetter the discretion of the

Union Government at the stage at which it submitted its report;

337

and

d. The Commission recommended that some territories remain under

temporary central supervision and envisaged that they too would

become fully autonomous (either by merging with an adjoining state

or otherwise).

491. Union territories were, therefore, created when certain areas were not “viable

administrative units” and did not have requisite resources to sustain

themselves. In addition, strategic, security, or other compelling reasons could

play a role in the decision to create a Union territory. Regardless of the

category into which they were initially slotted, the recommendations of the

Commission evince its opinion that most Union territories or other centrally

supervised territories were on a journey towards becoming viable

administrative units and attaining autonomy. It appears that the report

submitted by the Commission was accepted – the Constitution (Seventh

Amendment) Act 1956 and the States Reorganisation Act 1956 implemented

most of its recommendations. The view of the Commission that most Union

territories were on the journey towards becoming viable administrative units

and attaining autonomy is borne out by their journey in the decades after its

report.

337

Paragraph 753, Report of the States Reorganisation Commission 1955

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335

III. The journey of Union territories: 1956 to 2023

492. It is useful to examine the journey of the constitutional status of various Union

territories. We preface this historical journey with the preface that there is no

homogenous class of Union territories since the Constitution envisages a

unique relationship of each of them with the Union.

493. The Constitution (Seventh Amendment) Act 1956 created six Union

territories: Delhi, Himachal Pradesh, Manipur, Tripura, the Andaman and

Nicobar Islands, and the Laccadive, Minicoy and Amindivi Islands.

338

Delhi

attained a distinct, sui generis status with the insertion of Article 239AA in

1991 by the Sixty-ninth constitutional amendment and is not similar to other

Union territories.

339

Himachal Pradesh was granted statehood with the

enactment of the State of Himachal Pradesh Act 1970. Manipur and Tripura

became States upon the enactment of the North-Eastern Areas

(Reorganisation) Act 1971. This statute also established the Union territories

of Mizoram and Arunachal Pradesh, which were granted statehood in 1986.

340

The Andaman and Nicobar Islands continue to be Union territories as do the

Laccadive, Minicoy and Amindivi Islands, the name of which was changed to

Lakshadweep.

341

494. Goa, Daman and Diu were added to the First Schedule as a Union Territory

in 1962

342

as was Puducherry (previously known as Pondicherry).

343

In 1966,

338

Section 2, Constitution (Seventh Amendment) Act 1956

339

State (NCT of Delhi) v. Union of India, (2023) 9 SCC 1

340

State of Mizoram Act 1986; State of Arunachal Pradesh Act 1986

341

Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Act 1973

342

Constitution (Twelfth Amendment) Act 1962

343

Constitution (Fourteenth Amendment) Act 1962

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336

Chandigarh was also made a Union territory.

344

A couple of decades later, the

State of Goa was formed with the enactment of the Goa, Daman and Diu

Reorganisation Act 1987. Daman and Diu continued to be a single Union

Territory. It was eventually merged with Dadra and Nagar Haveli.

345

495. Of all the Union territories in the history of the country, Himachal Pradesh,

Manipur, Tripura, Goa, Mizoram and Arunachal Pradesh attained full

statehood and Delhi attained significant autonomy with its sui generis status.

As each of these territories (except Delhi in view of its status as the National

Capital) became viable administrative units, they found a place in the

constitutional structure as States. However, other areas continued to remain

as Union Territories because they were not considered to be viable

administrative units or because of other strategic or security-based reasons.

These Union territories are smaller than those which eventually attained

statehood.

496. The relevance of this discussion is elucidated by the observations of one of

us (DY Chandrachud, CJI) in State (NCT of Delhi) v. Union of India:

346

“303. … The words of the Constitution cannot be construed merely

by alluding to what a dictionary of the language would explain. While

its language is of relevance to the content of its words, the text of

the Constitution needs to be understood in the context of the history

of the movement for political freedom. Constitutional history

embodies events which predate the adoption of the Constitution.

Constitutional history also incorporates our experiences in the

unfolding of the Constitution over the past sixty-eight years while

confronting complex social and political problems. Words in a

constitutional text have linkages with the provisions in which they

appear. It is well to remember that each provision is linked to other

344

Punjab Reorganisation Act 1966

345

Dadra and Nagar Haveli and Daman and Diu (Merger of Union Territories) Act 2019

346

(2018) 8 SCC 501

PART E

337

segments of the document. It is only when they are placed in the

wide canvas of constitutional values that a true understanding of the

text can emerge … ”

IV. The scope of Article 3

497. Article 2 of the Constitution provides that Parliament may admit new States

into the Union or establish new States:

“2. Admission or establishment of new States. – Parliament may by

law admit into the Union, or establish, new States on such terms and

conditions as it thinks fit.”

Article 3, as it now stands,

347

is extracted below:

“3. Formation of new States and alteration of areas, boundaries or

names of existing States.— Parliament may by law—

(a) form a new State by separation of territory from any State or

by uniting two or more States or parts of States or by uniting any

territory to a part of any State;

(b) increase the area of any State;

I diminish the area of any State;

(d) alter the boundaries of any State;

(e) alter the name of any State:

Provided that no Bill for the purpose shall be introduced in either

House of Parliament except on the recommendation of the

President and unless, where the proposal contained in the Bill

affects the area, boundaries or name of any of the States, the Bill

has been referred by the President to the Legislature of that State

for expressing its views thereon within such period as may be

specified in the reference or within such further period as the

347

Article 3 was amended multiple times. The proviso was substituted in 1955. Explanations I and II were added

in 1966.

PART E

338

President may allow and the period so specified or allowed has

expired.

Explanation I.—In this article, in clauses (a) to (e), “State” includes

a Union territory, but in the proviso, “State” does not include a Union

territory.

Explanation II.—The power conferred on Parliament by clause (a)

includes the power to form a new State or Union territory by uniting

a part of any State or Union territory to any other State or Union

territory.”

348

(emphasis supplied)

498. In exercise of the power under Article 3, Parliament has enacted legislations

which reorganised the constituent units of the country at various points in

time. It has altered the names of Karnataka (previously Mysore), Tamil Nadu

(previously Madras), Uttarakhand (previously Uttaranchal) and Odisha

(previously Orissa).

349

The erstwhile State of Bombay was divided into

Gujarat and Maharashtra.

350

The State of Nagaland was carved out from the

State of Assam.

351

The State of Meghalaya was established,

352

which was

previously an autonomous state within the State of Assam.

353

The State of

Haryana was carved out of the State of Punjab.

354

The State of Chhattisgarh

was carved out of the State of Madhya Pradesh.

355

Sikkim was admitted into

the Union of India in 1975 and was granted the status of a full State.

356

Uttarakhand (previously Uttaranchal) was carved out of the State of Uttar

348

Article 3, Constitution of India

349

Mysore State (Alteration of Name) Act 1973, Madras State (Alteration of Name) Act 1973, Uttaranchal (Alteration

of Name) Act 2006, Orissa (Alteration of Name) Act 2011.

350

Bombay Reorganisation Act 1960

351

State of Nagaland Act 1962

352

North-Eastern Areas (Reorganisation) Act 1971

353

Assam Reorganisation (Meghalaya) Act 1969

354

Punjab Reorganisation Act 1966

355

Madhya Pradesh Reorganisation Act 2000

356

Constitution (Thirty-sixth Amendment) Act 1975

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339

Pradesh.

357

Similarly, Jharkhand was carved out of the State of Bihar.

358

Most

recently, the State of Telangana was carved out of the State of Andhra

Pradesh.

359

499. It is evident from these examples that Parliament admitted and established

new States in India. In the process, some States such as the State of Bombay

appear to be “extinguished” (so to speak). Some may argue that the alteration

of names of the States similarly “extinguishes” the older State. However, the

difference between extinguishing a State and extinguishing the character of

a constituent unit as a State is of great consequence. A particular State may

cease to exist because it is divided to create two (or more) new States.

Similarly, a particular State may cease to exist because it is divided to create

a State (or more than one State) and a Union territory (or more than one Union

territory). In both cases, the alteration of the area (or at least some part of the

area) does not result in it losing its character as a State, with the attendant

constitutional implications. A constituent unit can be said to lose its character

as a State only if it is converted into a Union territory in full, with no part of it

retaining statehood. A change in the boundaries or the name of a State does

not result in the change of its character as a State because such a character

is derived not from its name or boundaries but from its relationship with the

Union Government – one characterised by autonomy. As discussed in the

previous segment, the Constitution confers legislative and executive powers

on the States, which play an indispensable role in our democratic set-up.

357

Uttar Pradesh Reorganisation Act 2000

358

Bihar Reorganisation Act 2000

359

Andhra Pradesh Reorganisation Act 2014

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340

These characteristics of States are not usually lost when its boundaries, size,

or name are changed.

500. States under the Indian Constitution have their own independent

constitutional existence. The various organs of governance such as the State

Governor, the State Legislature, the High Courts, the Public Service

Commissions, the State Elections Commissions are all creatures of the

Constitution. As Dr Ambedkar noted in the Constituent Assembly:

“As to the relation between the Centre and the States, it is necessary

to bear in mind the fundamental principle on which it rests. The basic

principle of federalism is that the legislative and executive

authority is partitioned between the Centre and the States not

by any law to be made by the Centre but by the Constitution

itself. This is what the Constitution does. The States under our

Constitution are in no way dependent upon the Centre for their

legislative or executive authority. The centre and the States are

coequal in this matter.”

360

(emphasis supplied)

501. Dr Ambedkar highlighted that power of the States to govern emanated from

the Constitution and not Parliament. The exact significance of this

understanding of States’ powers may be demonstrated by reference to the

decision in State of Himachal Pradesh v. Union of India.

361

That case

concerned an inter-State dispute over the sharing of power from a hydro-

electric plant between the States of Punjab and Himachal Pradesh. The State

of Himachal Pradesh argued that it was entitled to 12% free power based on

360

Kuldip Nayar v. Union of India 2006 (7) SCC 1 [52]

361

2011 (13) SCC 344.

PART E

341

its status as the ‘mother-State’ of the power project. The State of Punjab

sought to repel this argument by contending that Himachal Pradesh’s claim

of 12% free power was based on a notion that Himachal Pradesh had some

pre-existing rights over the land and water, which could not be accepted as

the territory of States, and potentially the very existence of States, owed their

existence to Parliamentary legislation under Article 3. If Parliament could

unilaterally alter the territory of Himachal, how could Himachal claim any pre-

existing rights over its land and water? Rejecting this argument, the Division

Bench in State of Himachal held:

“93. We find that under the provisions of Article 3 of the Constitution,

Parliament has the power to form a new State by separation of

territory from any State or by uniting two or more States or parts of

States or by uniting any territory to a part of any State, increase the

area of any State, diminish the area of any State, alter the

boundaries of any State and alter the name of any State, but under

Article 3, Parliament cannot take away the powers of the State

executive or the State legislature in respect of matters

enumerated in List II of the Seventh Schedule to the

Constitution.”

(emphasis supplied)

502. As Dr Ambedkar explained to the Constituent Assembly, the division of

executive and legislative authority between the Union and the States, the

hallmark of a federal constitution, is enshrined in constitutional text. As a

result of this, the Union cannot alter the division of powers between the Union

and the States absent a constitutional amendment which would require

ratification by a majority of the States.

362

In State of Himachal Pradesh

(supra), the Division Bench highlights an important corollary of this logic. If

362

Constitution of India (1950), Article 368(2).

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342

Parliament cannot alter the division of powers between the Union and all

States absent a constitutional amendment, can it logically alter the division of

powers between the Union and one State by extinguishing its territory (and

hence existence) under Article 3? The Division Bench held it cannot.

503. The Solicitor General (for the Union of India) submitted that statehood will be

restored to Jammu and Kashmir and that its status as a Union territory is

temporary. The Solicitor General submitted that the status of the Union

Territory of Ladakh will not be affected by the restoration of statehood to

Jammu and Kashmir. In view of the submission made by the Solicitor General

that statehood would be restored of Jammu and Kashmir, we do not find it

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. The status of Ladakh as a Union Territory is

upheld because Article 3(a) read with Explanation I permits forming a Union

Territory by separation of a territory from any State. This Court is alive to the

security concerns in the territory. Direct elections to the Legislative

Assemblies which is one of the paramount features of representative

democracy in India cannot be put on hold until statehood is restored. We

direct that steps shall be taken by the Election Commission of India to conduct

elections to the Legislative Assembly of Jammu and Kashmir constituted

under Section 14 of the Reorganisation Act by 30 September 2024.

Restoration of statehood shall take place at the earliest and as soon as

possible.

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343

504. The question of whether Parliament can extinguish the character of statehood

by converting a State into one or more Union Territories in exercise of power

under Article 3 is left open. In an appropriate case, this Court must construe

the scope of powers under Article 3 in light of the consequences highlighted

above, the historical context for the creation of federating units, and its impact

on the principles of federalism and representative democracy.

x. The Challenge to the Reorganization Act on procedural grounds

a. Parliament’s exercise of power under the first proviso to Article 3

505. The Proclamation issued by the President under Article 356 on 19 December

2018 states that the President had received a report from the Governor of the

State of Jammu and Kashmir and after considering the report and other

information received , the President is satisfied that a situation has arisen in

which the government of the State cannot be carried out in accordance with

the provisions of the Constitution of India as applicable to the State of Jammu

and Kashmir and the Constitution of Jammu and Kashmir. In exercise of the

power under Article 356, the President, inter alia:

a. assumed to himself all the functions of the Government of the State and

all the powers exercisable by the Governor of Jammu and Kashmir;

b. declared that the powers of the Legislature shall be exercisable by or

under the authority of Parliament; and

c. suspended the first and second proviso to Article 3.

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344

506. In the present case, the proviso to Article 3 was suspended by the

Proclamation dated 19 December 2018 and the act of Parliament expressed

its views in support of the Reorganisation Act. The Union of India has argued

that as the views expressed by States under the proviso to Article 3 are non-

binding, there is no substantial constitutional violation that can result in the

invalidation of the Reorganisation Act even if the proviso was not strictly

complied with.

507. The first proviso to Article 3 stipulates that where the proposal contained in

the Bill affects the area, boundaries or name of any of the States, the

President must refer the Bill to the Legislature of that State for expressing

their views. The President referred the Reorganisation Bill to the Lok Sabha

and the Rajya Sabha for their views since Parliament exercised the “powers

of the Legislature” of the State of Jammu and Kashmir in view of the

Proclamation issued under Article 356. On 5 August 2019, the Lok Sabha

and Rajya Sabha expressed the view in favour of the acceptance of the

proposal in the Reorganisation Bill. The resolution reads thus:

“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 19th December, 2018. This House resolves to

express the view to accept the Jammu and Kashmir

Reorganisation Bill, 2019.”

508. The issue that arises for consideration is whether the procedure which was

followed in passing the Reorganisation Bill 2019 is valid. That is, could

Parliament have substituted its own views for the views of the State legislature

PART E

345

as required under the proviso to Article 3 in view of the power conferred upon

it by the Proclamation issued under Article 356?

509. Applying the standard laid above to test the exercise of power after a

Proclamation under Article 356 is issued, the petitioners must first prove that

the exercise of power was mala fide. We have in the preceding section of this

judgment held that the scope of the powers of Parliament under Article

356(1)(b) cannot be restricted to only law-making powers of the Legislature

of the State. Thus, the exercise of power cannot be held mala fide merely

because it is a non-law making power or that it furthers an important federal

principle.

510. The decision of the five-Judge Bench of this Court in Babulal Parate v. State

of Bombay

363

must be referred to. It was held that the views expressed by

the State Legislature under the proviso to Article 3 are not binding on

Parliament. In that case, the States Reorganisation Bill 1956 was introduced

in the Lok Sabha. The Bill had a proposal for the formation of three separate

states namely, the Union Territory of Bombay, the State of Maharashtra

including Marathwada and Vidharbha, and the State of Gujarat including

Saurashtra and Cutch. The Bill was referred to a Joint Select Committee.

Pursuant to the recommendations of the Joint Select Committee, an amended

version of the Bill was introduced in both Houses. Both Houses of Parliament

passed the Bill. According to the States Reorganisation Act 1956, a new Part

A State known as the State of Bombay was formed. The appellant initiated

363

AIR 1960 SC 51

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346

proceedings under Article 226 on the ground that the Legislature of the State

of Bombay had no opportunity of expressing its views on the formation of a

composite State instead of three separate units as proposed earlier. This

Court held that the views of the State Legislature are only recommendatory

and that it is not necessary that, the views of the concerned State Legislature

have to be secured on every occasion that a bill is amended:

“5. […] Nor is there anything in the proviso to indicate that

Parliament must accept or act upon the views of the State

Legislature. Indeed, two State Legislatures may express

totally divergent views. […] It was pointed out in the course

of arguments that if the second proviso required fresh

reference and a fresh bill for every amendment, it might

result in an interminable process, because any and every

amendment of the original proposal contained in the Bill

would then necessitate a fresh Bill and a fresh reference to

the State Legislature. Other difficulties might also arise if

such a construction were put on the proviso; for example,

in a case where two or three States were involved, different

views might be expressed by the Legislatures of different

States. If Parliament were to accept the views of one of the

Legislatures and not of the other, a fresh reference would

still be necessary by reason of any amendment in the

original proposal contained in the Bill.”

511. If the views of the State Legislature were binding on Parliament (which is not

the case), there would be scope for debate on whether Parliament in exercise

of powers under Article 356(1)(b) could have substituted its views for the

views of the Legislative Assembly of the State. However, the views of the

Legislature of the State are not binding on Parliament in terms of the first

proviso to Article 3. The views of the Legislature of the State under the first

proviso to Article 3 are recommendatory to begin with. Thus, Parliament’s

exercise of power under the first proviso to Article 3 is valid and not mala fide.

PART E

347

b. Suspension of the second proviso to Article 3 as applicable to Jammu and

Kashmir

512. The petitioners have challenged the suspension of the second proviso to

Article 3 which was inserted in Article 3 in its application to the State of Jammu

and Kashmir by CO 48 of 1954. By the second proviso (as it applies to the

State of Jammu and Kashmir) a Bill providing for increasing or diminishing the

area of the State of Jammu and Kashmir or altering the name or boundary of

the State cannot be introduced in Parliament without the consent of the

legislature of the State.

513. Once this court has come to the conclusion that CO 272 is valid, all the

provisions of the Constitution of India apply to the State of Jammu and

Kashmir. The exceptions and modifications to the provisions of the

Constitution in its application to Jammu and Kashmir ceased to exist. CO 272

was issued by the President on 5 August 2019. On the same day, the

Reorganization Bill was sent to the Rajya Sabha and Lok Sabha for securing

their views under the first proviso to Article 3 and the Rajya Sabha passed the

Reorganization Act. The next day, the Lok Sabha passed the Reorganization

Act. Thus, when the Reorganisation Bill was introduced, that is 5 August

2019, the second proviso to Article 3 as it applied to the State of Jammu and

Kashmir ceased to exist because of CO 272. Thus, the issue of whether the

second proviso to Article 3 could have been suspended in exercise of the

power under Article 356(1)(c) no longer survives.

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348

F. Conclusion

514. In view of the above discussion, the following are the conclusions:

a. The State of Jammu and Kashmir does not retain any element of sovereignty

after the execution of the 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;

b. 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;

c. The exercise of power by the President after the Proclamation under Article

356 is issued is subject to judicial review. The 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 fide 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;

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d. 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;

e. 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;

f. 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 affect the power held by the

President under Article 370(3);

g. 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 modified 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 modifies Article 370, in effect, without following the

procedure prescribed to modify Article 370. An interpretation clause cannot

be used to bypass the procedure laid down for amendment;

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350

h. The exercise of power by the President under Article 370(1)(d) to issue CO

272 is not mala fide. The President in exercise of power under Article 370(3)

can unilaterally issue a notification 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 effect as an exercise of power under Article 370(3) for which the

concurrence or collaboration with the State Government was not required;

i. 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

fide merely because all the provisions were applied together without following

a piece-meal approach;

j. The President had the power to issue a notification declaring 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;

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351

k. 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;

l. The views of the Legislature of the State under the first proviso to Article 3

are recommendatory. Thus, Parliament’s exercise of power under the first

proviso to Article 3 under the Proclamation was valid and not mala fide;

m. 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 we do not find it 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,

we uphold the validity of the decision to carve out the Union Territory of

Ladakh in view of Article 3(a) read with Explanation I which permits forming a

Union Territory by separation of a territory from any State; and

n. We direct that steps shall be taken by the Election Commission of India to

conduct elections to the Legislative Assembly of Jammu and Kashmir

constituted under Section 14 of the Reorganisation Act by 30 September

2024. Restoration of statehood shall take place at the earliest and as soon as

possible.

515. The writ petition and special leave petitions are disposed of in the above

terms.

PART F

352

516. Pending application(s), if any, stand disposed of.

…….……………………………………CJI

[Dr Dhananjaya Y Chandrachud]

…….………………………………………J

[B R Gavai]

.……………………………………………J

[Surya Kant]

New Delhi;

December 11, 2023

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J U D G M E N T

SANJAY KISHAN KAUL, J.

INDEX

Kashmir (Kas’mira) 8

Prelude 16

Instrument of Accession and the Constituent Assembly Debates 18

Constituent Assembly of the State of J&K and Article 370 28

1989-1990 onwards: Another troubled time 39

The recent developments 41

The Challenge 44

1. The relation between the Union and the State of Jammu

& Kashmir.

A. The evolution of constitutional relationship

between the Union and the State of Jammu &

Kashmir prior to the impugned executive actions

B. Article 370 had assumed permanence in the

Constitution of India

C. The effect of Article 370(3) of the Constitution

2. The Impugned Executive Orders are not competent to

alter the relationship between the State and the Union:

A. C.O. 272 is illegal and mala fide

B. C.O. 273 is illegal and mala fide

C. Improper exercise of power under Article 356 of

the Constitution while issuing C.O. 272 and C.O. 273

3. The big question mark of even altering the status of

the State to Union Territory.

A. Article 3 of the Constitution does not warrant the

power to convey a State into Union Territory

B. The suspension of proviso to Article 3 was illegal

The Constitutional defense of the respondents 64

1. The nature of the Constitutional relationship between the 64

Page 6 of 121

Union and the State of Jammu and Kashmir prior to the

impugned Executive actions.

A. No semblance of sovereignty remained with the

State of Jammu & Kashmir, as its integration was

complete

B. Article 370, both from the Part in which it falls

(Heading) as well as reading of the transitional

provision

C. Article 370(3) – How it works out? The proviso to

Article 370(3) became otiose once the State

Constituent Assembly dissolved itself

2. Whether the relationship could be altered by the

impugned Executive orders.

A. C.O. 272 is intra vires

B. C.O. 273 is intra vires

C. Permissible exercise of power under Article 356

while issuing C.O. 272 and C.O 273

3. Whether the alteration from a State to a Union Territory

was permissible?

A. Article 3 grants Parliament the power to convert a

State into a Union Territory

B. The suspension of the proviso to Article 3 was

permissible

Resolution of Constitutional Dilemma 78

1. The Constitutional Relationship between the Union and

the State of Jammu and Kashmir prior to the impugned

actions.

A. The concept of internal sovereignty after the IoA

B. Article 370 of the Constitution as a temporary

provision

C. The effect of Article 370(3)

2 Article 370(3) after the dissolution of the Constituent 91

Page 7 of 121

Assembly of the State.

A. Article 370(3) continues to operate

B. The President can exercise their power under sub-

clause (3) without a recommendation from the

Jammu and Kashmir Constituent Assembly

3. The issuance of CO 272.

A. The power under Article 370(1)(d) read with

Article 367 was improperly exercised

B. Concurrence with the Government of the State

was not necessary to apply all the provisions of the

Constitution of India to the State

100

4. Whether the exercise of power under Article 356 was

permissible while issuing COs 272 and 273.

A. Article 356 can be imposed once the Legislative

Assembly had been dissolved

B. Article 356 permits the President to make

irreversible changes

C. The President reserves both legislative and non-

legislative powers after the proclamation of

emergency

102

103

104

5. The extent of powers under Article 3 and the

constitutionality of the Reorganization Act.

A. The Parliament's authority to alter or extinguish a

State under Article 3

B. Suspension of the first proviso to Article 3 was

permissible during President's rule

108

110

CONCLUSION 111

EPILOGUE

114

Page 8 of 121

Kashmir (Kas’mira)

1. Legend has it that eons ago Kashmir valley was a vast mountain

lake called ‘Satisar’ and that Rishi Kashyap created the valley of Kashmir

by draining this lake.

2. An analysis of the Nilamat Purana, the oldest scripture of Aryan

Saraswat Brahmins of Kashmir (can put Kas’mira) indicates that the first

set of settlers in Kashmir were the Nagas – snake worshippers and

animists. A batch of Aryans, originally settled on the banks of the mighty

Vedic River Saraswati, moved to the Valley when the Saraswati river

dried up. This was about 5,000 years ago.

The origin of the people of

the Valley has had varied versions, including that they were descendants

of one of the lost tribes of Israel.

The Valley has heritage and culture as

a place of learning. One of the most respected places of learning is the

Sharda Peeth, now in the Pakistan Occupied Kashmir area, where

education was gender neutral and based on excellence.

3. In 326 BC, Alexander the Great is said to have invaded the Jammu

and Kashmir area. Thereafter, from 206 BC, Kashmir was part of the Silk

As per the 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.

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.

Page 9 of 121

Route, connecting China with southern Europe.

A land which has

witnessed different faiths, the Valley carries the history of giving passage

to Christ, and root to Buddhism, from where it spread to Tibet, China and

Central Asia.

4. In much later periods of time, Thomas Moore (18

Century AD)

introduced Kashmir to the Western world in his famous poem ‘Lalla

Rookh’ (1817)

with these words:

“Who has not heard of the Vale of Cashmere,

With its roses the brightest that earth ever gave,

Its temples, and grottos, and fountains as clear

As the love-lighted eyes that hung over their wave?”

5. The State of Jammu & Kashmir, prior to the independence of our

country, consisted of the Kashmir Valley, Jammu, Ladakh, Baltistan,

Gilgit, Hunza and Nagar. It stands on the old Central Asian trade route,

and the Kashmir Valley, since ancient times, has been the halting place

for caravans travelling between the plains of India and the high reaches

of Central Asia.

The mountains provide a wall of protection to the

Valley and Kalhana speaks of Kashmir as unconquerable by the force of

Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story, (Bloomsbury India 2019) 1-2.

Ibid at 3.

P.N.K Bamzai, Culture and Political History of Kashmir: Ancient Kashmir, vol. 1 (M.D.

Publications Pvt. Ltd., New Delhi, 1994) 16.

P.N.K Bamzai, Culture and Political History of Kashmir: Ancient Kashmir, vol. 1 (M.D. Publications

Pvt. Ltd., New Delhi, 1994) 1-2.

Page 10 of 121

soldiers.

The Chinese travelers (Hiuen Tsang and Ou-Kong), thus, refer

to the difficulty of coming through the mountain passes.

To the south of

the Valley is the area now known as Jammu, which is the home of the

Dogras and several other castes and sects, both Hindus and Muslims.

Into this region have also come people from the Kashmir Valley, as

settlers. Another interesting tribe in the area is the Gujjar tribe which

leads a semi-nomadic life, moving its herds and flock from Jammu to

Kashmir, depending on the weather of the local region.

6. An overwhelming majority of the people in the Valley professed

Islam, which started its advent in the Valley during the 14

century, apart

from the presence of the Kashmiri Pandits and the Sikh population. Both

the Shia and Sunni sects find their presence in the Muslim population.

The State, in its pre-independence era, did not have historical boundaries

in the same form as those of other princely States, but these disparate

territories were brought under a single State only in the 19

century. The

unifiers were a clan of Dogra Rajputs from Jammu, who conquered

Ladakh in the 1830s and acquired the Valley of Kashmir from the British

in the 1840s for a consideration of Rs.75 lakh, moving into the Gilgit

area by the end of the century.

P.N.K Bamzai, Culture and Political History of Kashmir: Ancient Kashmir, vol. 1 (M.D. Publications

Pvt. Ltd., New Delhi, 1994) 10.

P.N.K Bamzai, Culture and Political History of Kashmir: Ancient Kashmir, vol. 1 (M.D.

Publications Pvt. Ltd., New Delhi 1994) 10.

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) 60; See also V.P. Menon, The Story of the Integration of the Indian States (Orient Longmans

Pvt. Ltd. 1956) 391.

Page 11 of 121

7. The people of Kashmir have many resemblances in their dressing

style, social customs and ceremonies, across followers of the two

different faiths. The sacred shrines of both the communities are situated

close together and often fairs at these shrines are also held on the same

date, with the participation of one community in the celebrations of the

other.

8. The State had dual capitals - Srinagar and Jammu, with the

‘Darbar’ moving from one place to the other for a period of six (6)

months giving them political sanctity. Srinagar, in the Valley, stands on

the banks of Vitasta, and its history dates back to the time of Asoka, who

is credited with having founded it during his visit to Kashmir. In view of

its numerous canals and the Dal Lake, it is aptly called the ‘Venice of the

East’.

9. Originally, the population of Kashmir is stated to be Brahmin, but

with other sects namely, Nishads, Khashas, Darads, Bhauttas, Bhikshas,

Damaras, Tantrins, etc, also prevalent.

This was prior to the advent of

Islam in the 14

century, when the Zoji-la Pass acted as a route for

successful invasions of Kashmir. The early 14

century saw the forays

of the Turk Dulca and Bhautta Rincana. About two centuries later, Mirza

P.N.K Bamzai, Culture and Political History of Kashmir: Ancient Kashmir, vol. 1 (M.D.

Publications Pvt. Ltd., New Delhi 1994) 21.

P.N.K Bamzai, Culture and Political History of Kashmir: Ancient Kashmir, vol. 1 (M.D.

Publications Pvt. Ltd., New Delhi 1994) 7.

P.N.K Bamzai, Culture and Political History of Kashmir: Ancient Kashmir, vol. 1 (M.D.

Publications Pvt. Ltd., New Delhi 1994) 16.

Page 12 of 121

Haider Dughlat, with his small Mughal force, successfully fought his

entrance into Kashmir, in 1533 AD.

Interaction, however, was not

restricted to these invasions. In this chequered history of Kashmir, there

have also been periods when the people came in contact with the Roman,

Greek and Persian civilizations, resulting in a happy blending of cultures

which were tolerant and sympathetic towards the ideas and beliefs of

others.

This is reflected in the presence of different forms of Naga

worship, Brahmanism, Buddhism and Islam. The synthesis of Hindu and

Islamic religious thought found its greatest champions in Lalleshwari and

Sheikh Nur-ud-din, who are even to this day venerated by the Hindus and

Muslims alike.

Sheikh Nur-ud-Din Wali, originally known as Nund

Rishi preached and practised a faith of tolerance and inclusivity,

Kashmiriyat.

The Brahmins were, and are, popularly called Kashmiri

Pundits.

The Kashmiri Pandits are believed to be residents of Kashmir

from the Vedic era, being part of the society, culture milieu, civilization,

customs, traditions, myths and realities of Kashmir. They trace their

history to more than 11,000 years ago, beginning with the early origins of

the Valley.

Religious persecution made them leave the Valley en masse

Durgaprasad (ed.), The Rajatarangini of Kalhana, vol. 2 (1894) 408.

P.N.K Bamzai, Culture and Political History of Kashmir: Ancient Kashmir, vol. 1 (M.D.

Publications Pvt. Ltd., New Delhi 1994) 16.

P.N.K Bamzai, Culture and Political History of Kashmir: Ancient Kashmir, vol. 1 (M.D.

Publications Pvt. Ltd., New Delhi 1994) 17.

Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story, (Bloomsbury India 2019) 3.

Monier-Williams, Modern India and the Indians (3

edn., Trübner and Co. 1879) 151.

A.R. Nazki, ‘In Search of Roots’ in S.S. Toshkhani & K. Warikwoo (eds.), Cultural Heritage of

Kashmiri Pandits (Pentagon Press 2009) 2.

Page 13 of 121

for the plains on many occasions,

but in subsequent peaceful reigns,

like that of Sultan Zain-ul-abidin, they returned to their original

homeland.

10. Turning back again to the political entity of Jammu & Kashmir, as

was known then, and its comparatively recent history of the Sultan

dynasty establishing itself and continuing its rule till 1586,

when Akbar

invaded Kashmir and appended it to the Mughal Empire. For the next,

approximately, 200 years, it remained the summer residence of the

Mughal emperors.

As Emperor Jahangir described the Valley- “Gar

firdaus, bar-ruee zameen ast, hameen asto, hameen asto, hameen ast” (if

there is a paradise on earth, it is this, it is this, it is this).

In 1752,

Kashmir passed on to the powerful grasp of the Pathans, but in 1819, it

was conquered by Maharaja Ranjit Singh, the great Sikh Ruler, and it

remained under the Sikh administered dynasty till 1846.

Meanwhile, in

the latter half of the 18

century, Jammu was ruled by a Dogra chief of

Rajput descent, Ranjit Deo. The quarrel about his succession gave the

Sikhs an opportunity of turning Jammu & its neighbouring hill tracks into

Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story, (Bloomsbury India 2019) 3.

P.N.K Bamzai, Culture and Political History of Kashmir: Ancient Kashmir, vol. 1 (M.D.

Publications Pvt. Ltd., New Delhi 1994) 17.

Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story, (Bloomsbury India 2019) 3.

VP Menon, The Story of the Integration of the Indian States (Orient Longmans Pvt. Ltd. 1956) 390.

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.

VP Menon, The Story of the Integration of the Indian States (Orient Longmans Pvt. Ltd. 1956) 390-

391.

Page 14 of 121

a dependency.

Having conquered Jammu, Maharaja Ranjit Singh

installed one of his soldiers, Gulab Singh, who happened to be one of the

great-grand nephews of Ranjit Deo, as the vassal ruler of Jammu in

1822.

The principality of Jammu was conferred on Gulab Singh, with

the hereditary title of ‘Raja’ in 1823. With the death of Ranjit Singh in

1839, followed the Sikh Wars and post the first Sikh war (1846), Gulab

Singh appeared as a mediator between the English and the Lahore

Darbar.

Political expediency made Gulab Singh, thus, the independent

ruler of Jammu & Kashmir, with the treaty at Amritsar being inked on

16.3.1846. It is this treaty which marks the commencement of the history

of Jammu & Kashmir as a political entity.

11. Owing to his failing health, Maharaja Gulab Singh, abdicated his

throne in favour of Maharaja Ranbir Singh, who was then succeeded by

Maharaja Pratap Singh. Maharaja (Sir) Hari Singh became the ruler of

Jammu & Kashmir in 1925 and was the ruler at the time of transfer of

power in 1947.

Maharaja Hari Singh’s tenure saw growing opposition

from the Muslim population in the Valley, who wanted a greater say in

the administration. This saw the emergence of a local popular leader in

Sheikh Abdullah, known as the ‘Lion of Kashmir’. In 1932, the ‘All

Jammu & Kashmir Muslim Conference’ was formed, which, six (6) years

VP Menon, The Story of the Integration of the Indian States (Orient Longmans Pvt. Ltd. 1956) 390-

391.

Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story, (Bloomsbury India 2019) 3.

VP Menon, The Story of the Integration of the Indian States (Orient Longmans Pvt. Ltd. 1956) 390-

391.

VP Menon, The Story of the Integration of the Indian States (Orient Longmans Pvt. Ltd. 1956) 392.

Page 15 of 121

later, was transformed into the ‘National Conference’, having

representation from all communities.

12. A negotiation between the rulers and the ruled, with a more

democratic process, saw the promulgation of the Jammu & Kashmir

Constitution Act, 1939 on 7.9.1939,

with sovereignty and supremacy

over all legislative, executive and judicial functions being retained by the

Maharaja while empowering the Praja Sabha to make laws for the entire

State of Jammu & Kashmir.

Executive functions under the Act were

vested with a Council consisting of the Prime Minister and such other

Ministers as appointed by the Maharaja.

The Act also provided for the

establishment of a High Court (which, in fact, had already been

established in 1928),

which was to be a court of record with jurisdiction

to adjudicate upon any original civil suits of value of Rupees ten

thousand or more, and also civil, criminal and revenue appeals.

Ramachandra Guha, India After Gandhi: The History of the World's Largest Democracy (Picador

2008) 60.

Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story, (Bloomsbury India 2019) 24.

Sections 5 & 23 of the Jammu & Kashmir Constitution Act, 1939. See also Justice A.S. Anand, The

Constitution of Jammu & Kashmir: Its Development & Comments (3

edn., Universal Law Publishing

Co. Pvt. Ltd. 1998) 41, 44.

Section 7 of the Jammu & Kashmir Constitution Act, 1939. See also Justice A.S. Anand, The

Constitution of Jammu & Kashmir: Its Development & Comments (3rd edn., Universal Law

Publishing Co. Pvt. Ltd. 1998) 42.

Justice A.S. Anand, The Constitution of Jammu & Kashmir: Its Development & Comments (3

edn.,

Universal Law Publishing Co. Pvt. Ltd. 1998) 50.

Section 56 of the Jammu & Kashmir Constitution Act, 1939. See also Justice A.S. Anand, The

Constitution of Jammu & Kashmir: Its Development & Comments (3

edn., Universal Law Publishing

Co. Pvt. Ltd. 1998) 51.

Page 16 of 121

Prelude

13. The Second World War and the independence movement made

independence inevitable. The Cabinet Mission Plan of 16.5.1946

envisaged a Union of India where the Union would have responsibility

over defence, foreign affairs and communication and the States would

retain jurisdiction over all other subjects not ceded to the Union.

The

Constituent Assembly of India on 22.1.1947 unanimously adopted the

Objective Resolution declaring the Assembly’s “firm and solemn resolve

to proclaim India as an Independent Sovereign Republic.” The Princely

States that had joined the Union of India were to possess and retain the

status of autonomous units, together with residuary powers, save and

except such powers and functions as were vested or assigned to the

Union.

14. On 3.6.1947, the Mountbatten Plan envisaged a partition of India

with accession of Indian States to one dominion or the other (i.e. India or

Pakistan). The deadline of 15.8.1947 was set for transferring power to an

independent India.

The State of Jammu & Kashmir had the biggest area

in India with a predominantly Muslim population ruled by a Hindu

King.

It was the political acumen of Sardar Patel, assisted by V.P.

Menon, which saw over 500 autonomous and sometimes ancient

chiefdoms being dissolved into 14 new administrative units of India, a

Point 15 of the Cabinet Mission Plan, 1946.

Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story, (Bloomsbury India 2019) 49.

V.P. Menon, The Story of the Integration of the Indian States (Orient Longmans Pvt. Ltd. 1956) 394.

Page 17 of 121

stupendous achievement brought about by wisdom, foresight and hard

work.

But Junagadh, Jammu & Kashmir and Hyderabad proved to be a

challenge, as by 15.8.1947, none of these three had acceded to India.

Kashmir was a peculiar situation. Unlike the other two, it was on the

border of India and Pakistan. The then Maharaja Hari Singh dreamt of

Jammu & Kashmir as an independent State – not part of either the Indian

or Pakistani Dominion.

He offered to sign a standstill agreement with

both countries which would allow the free movement of people and

goods across the borders. Pakistan signed, but India was waiting and

watching.

This was in the background of the local Muslim leadership

of the Valley not being in favour of the two-nation theory and the

presupposed inevitability of the Valley joining Pakistan. Eventually, it

took a deliberate and conscious decision of joining India and negotiating

autonomy within the asymmetrical federal model. The ideological

symmetry of the National Conference and the Indian National Congress

was an important factor towards this path.

15. Pakistan was not willing to wait. On 22.10.1947, with the onset of

winter, several Pathan tribesmen, led unofficially by the Pakistani Army,

invaded Kashmir and rapidly pushed towards Srinagar. The Maharaja’s

Ramachandra Guha, India After Gandhi: The History of the World's Largest Democracy (Picador

2008) 44.

Bipin Chandra, Mridula Mukherjee & Aditya Mukherjee, India After Independence 1947-2000

(Penguin Books 2007) 92.

Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story, (Bloomsbury India 2019) 46.

Ramachandra Guha, India After Gandhi: The History of the World's Largest Democracy (Picador

2008) 63.

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.

Page 18 of 121

army proved no match for the invading forces. The Maharaja was left

with little option but to appeal to India for military assistance, but India

awaited a formal accession, in the spirit of true democratic principles.

Finally, on 26.10.1947, the Maharaja acceded to India and agreed to

install Shri Sheikh Abdullah as the head of the state administration.

Lord Mountbatten accepted the accession, with the caveat that there

would be a plebiscite to ratify the accession.

The Indian troops, thus,

moved in and saved the day. Nehru’s words addressed to his sister

capture it well, “Srinagar might have been a smoking ruin. We got there

in the nick of time.”

Instrument of Accession and the Constituent Assembly Debates

16. The moot point – whether the original Instrument of Accession

(hereinafter referred to as “IoA”) was different for the 500 Principality

States. The answer would be in the negative. The next question - was

the IoA for Jammu & Kashmir State different in any manner. The answer

is again in the negative. The IoA for the State of Jammu & Kashmir reads

as under:

“Instrument of Accession of Jammu and Kashmir State

WHEREAS the Indian Independence Act, 1947, provides that as

from the fifteenth day of August, 1947, there shall be set up an

Bipin Chandra, Mridula Mukherjee & Aditya Mukherjee, India After Independence 1947-2000

(Penguin Books 1999) 93-94.

Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story, (Bloomsbury India 2019) 80.

Ramachandra Guha, India After Gandhi: The History of the World's Largest Democracy (Picador

2008) 69.

Page 19 of 121

independent Dominion known as INDIA, and that the Government

of India Act, 1935, shall, with such omissions, additions,

adaptations and modification as the Governor- General may by

order specify be applicable to the Dominion of India ;

AND WHEREAS the Government of India Act, 1935, as so

adapted by the Governor-General, provides that an Indian State

may accede to the Dominion of India by an Instrument of

Accession executed by the Ruler thereof :

NOW THEREFORE

I Shriman Inder Mahinder Rajrajeswar Maharajadhiraj Shri Hari

Singhji, Jammu and Kashmir Naresh Tatha Tibbet adi

Deshadhipatti, Ruler of Jammu &Kashmir State in the exercise of

my sovereignty in and over my said State Do hereby execute this

my Instrument of Accession and

1. I hereby declare that I accede to the Dominion of India with the

intent that the Governor-General of India, the Dominion

Legislature, the Federal Court and any other Dominion authority

established for the purposes of the Dominion shall, by virtue of this

my Instrument of Accession, but subject always to the terms

thereof, and for the purposes only of the Dominion, exercise in

relation to the State of Jammu and Kashmir (hereinafter referred to

as “this State”) such functions as may be vested in them by or

under the Government of India Act, 1935, as in force in the

Dominion of India on the 15th day of August, 1947 (which Act as

so in force is hereinafter referred to as “the Act”).

2. I hereby assume the obligation of ensuring that due effect is

given to the provisions of the Act within this State so far as they

are applicable therein by virtue of this my Instrument of

Accession.

3. I accept the matters specified in the Schedule hereto as the

matters with respect to which the Dominion Legislature may make

Page 20 of 121

laws for this State.

4. I hereby declare that I accede to the Dominion of India on the

assurance that if an agreement is made between the Governor

General and the Ruler of this State whereby any functions in

relation to the administration in this State of any law of the

Dominion Legislature shall be exercised by the Ruler of this State,

then any such agreement shall be deemed to form part of this

Instrument and shall be construed and have effect accordingly.

5. The terms of this my Instrument of Accession shall not be varied

by any amendment of the Act or of the Indian Independence Act,

1947 unless such amendment is accepted by me by an Instrument

supplementary to this Instrument.

6. Nothing in this Instrument shall empower the Dominion

Legislature to make any law for this state authorizing the

compulsory acquisition of land for any purpose, but I hereby

undertake that should the Dominion for the purposes of a

Dominion law which applies in this State deem it necessary to

acquire any land, I will at their request acquire the land at their

expense or if the land belongs to me transfer it to them on such

terms as may be agreed, or, in default of agreement, determined by

an arbitrator to be appointed by the Chief Justice of India.

7. Nothing in this Instrument shall be deemed to commit me in any

way to acceptance of any future constitution of India or to fetter

my discretion to enter into arrangements with the Government of

India under any such future constitution.

8. Nothing in this Instrument affects the continuance of my

sovereignty in and over this State, or, save as provided by or under

this Instrument, the exercise of any powers, authority and rights

now enjoyed by me as Ruler of this State or the validity of any law

at present in force in this State.

9. I hereby declare that I execute this Instrument on behalf of this

Page 21 of 121

State and that any reference in this Instrument to me or to the Ruler

of the State is to be construed as including a reference to my heirs

and successors.

Given under my hand this 26th day of OCTOBER Nineteen

hundred and forty seven.

Sd/-

Hari Singh

Maharajadhiraj of Jammu and Kashmir State.

I do hereby accept this Instrument of Accession.

Dated this twenty seventh day of October, Nineteen hundred and

forty seven.

Sd/-

Mountabatten of Burma,

Governor-General of India.

SCHEDULE

THE MATTERS WITH RESPECT TO WHICH THE DOMINION

LEGISLATURE MAY MAKE LAWS FOR THIS STATE

A. Defence

1. The naval, military and air forces of the Dominion and any other

armed force raised or maintained by the Dominion; any armed

forces, including forces raised or maintained by an Acceding State,

which are attached to, or operating with, the armed forces of the

Dominion.

2. Naval, military and air force works, administration of

cantonment areas.

Page 22 of 121

3. Arms; firearms; ammunition.

4. Explosives.

B. External Affairs

1. External affairs; the implementing of treaties and agreements

with other countries; extradition, including the surrender of

criminals and accused persons to parts of His Majesty's dominions

outside India.

2. Admission into, and emigration and expulsion from, India,

including in relation thereto the regulation of the movements in

India of persons who are not British subjects domiciled in India or

subjects of any acceding State; pilgrimages to places beyond India.

3. Naturalisation.

C. Communications

1. Posts and telegraphs, including telephones, wireless,

broadcasting, and other like forms of communication.

2. Federal railways; the regulation of all railways other than minor

railways in respect of safety, maximum and minimum rates and

fares, station and service terminal charges, interchange of traffic

and the responsibility of railway administrations as carriers of

goods and passengers; the regulation of minor railways in respect

of safety and the responsibility of the administrations of such

railways as carriers of goods and passengers.

3. Maritime shipping and navigation, including shipping and

navigation on tidal waters; Admiralty jurisdiction.

4. Port quarantine.

5. Major ports, that is to say, the declaration and delimitation of

such ports, and the constitution and powers of Port Authorities

therein.

Page 23 of 121

6. Aircraft and air navigation; the provision of aerodromes;

regulation and organization of air traffic and of aerodromes.

7. Lighthouses, including lightships, beacons and other provisions

for the safety of shipping and aircraft.

8. Carriage of passengers and goods by sea or by air.

9. Extension of the powers and jurisdiction of members of the

police force belonging to any unit to railway area outside that unit.

D. Ancillary

I. Elections to the Dominion Legislature, subject to the provisions

of the Act and of any Order made there under.

2. Offences against laws with respect to any of the aforesaid

matters.

3. Inquiries and statistics for the purposes of any of the aforesaid

matters.

4. Jurisdiction and powers of all courts with respect to any of the

aforesaid matters but, except with the consent of the Ruler of the

Acceding State, not so as to confer any jurisdiction or powers+

upon any courts other than courts ordinarily exercising jurisdiction

in or in relation to that State.”

17. We may refer to communication from Lord Mountbatten to

Maharaja Hari Singh on the very next day, i.e., 27.10.1947, which reads

as under:

“My dear Maharajah Sahib,

Your Highness’s letter, dated the 26

October has been delivered

to me by Mr. V.P. Menon. In the special circumstances mentioned

Page 24 of 121

by Your Highness, my Government have decided to accept the

accession of Kashmir State to the Dominion of India. Consistently

with their policy that, in the case of any State where the issue of

accession has been the subject of dispute, the question of accession

should be decided in accordance with the wishes of the people of

the State, it is my Government’s wish that, as soon as law and

order have been restored in Kashmir and her soil cleared of the

invader, the question of the State’s accession should be settled by a

reference to the people. Meanwhile, in response to your

Highness’s appeal for military aid, action has been taken today to

send troops of the Indian Army to Kashmir to help your own forces

to defend your territory and to protect the lives, property and

honour of your people.

My Government and I note with satisfaction that your Highness

has decided to invite Sheikh Abdullah to form an Interim

Government to work with your Prime Minister.

Yours sincerely,

Sd/-

Mountbatten of Burma”

18. Now turning to the preparation of the first draft of the Indian

Constitution, which was handed over by Dr. B.R. Ambedkar on behalf of

the Drafting Committee as its Chairman to the Constituent Assembly

President, Dr. Rajendra Prasad on 21.2.1948.

There was no equivalent

of Article 370 in that draft Constitution. During this period, the Jammu &

Kashmir dispute between India and Pakistan was being tabled at the

‘Draft Constitution of India, 1948’ (Constituent Assembly Debates)

<https://www.constitutionofindia.net/historical_constitutions/draft_constitution_of_india__1948_21st

%20February%201948>.

Page 25 of 121

United Nations.

The insertion of Article 306-A (the equivalent of

Article 370) took place during the Constituent Assembly Debates and

was introduced on 17.10.1949. Article 306-A was drafted by

Gopalaswami Ayyangar, in close consultation with Sheikh Abdullah, the

content being a result of negotiations between the Centre and the

Government of Jammu and Kashmir, from May to October, 1949.

The

Constituent Assembly Debates refer to the peculiar position of Jammu &

Kashmir as inter alia enunciated by Shri N. Gopalaswami Ayyangar.

What was said was that an interim system had to be established through

Article 306-A till a Constituent Assembly for the State of Jammu &

Kashmir came into being. Article 306-A reads as under:

“306-A. (1) Not withstanding anything contained in this

Constitution.

(a) the provisions of article 211A of this Constitution shall not

apply in relation to the State of Jammu and Kashmir.

(b) the power of Parliament to make laws for the State shall be

limited to

(i) those matters in the Union List and the Concurrent List which,

in consultation with the Government of the State, are declared by

the President to correspond to matters specified in the Instrument

of Accession governing the accession of the State to the Dominion

of India are the matters with respect to which the Dominion

Legislature may make laws for the State and

A.G. Noorani, The Kashmir Dispute 1947-2012, vol. 2 (Tulika Books 2013) 77-80.

A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir (Oxford University

Press, India 2014) 50-78. See also Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story,

(Bloomsbury India 2019) 98.

Page 26 of 121

(ii) such other matters in the said Lists as, with the concurrence of

the Government of the State, the President may by order specify;

Explanation.-- For the purposes of this article, the Government of

the State means the person for the time being recognised by the

Union as the Maharaja of Jammu and Kashmir, acting on the

advice of the Council of Ministers, for the time being in office,

under the Maharaja's Proclamation, dated fifth day of March, 1948.

relation to the State;

(d) such of the other provision of this Constitution and subject to

such exceptions and modifications shall apply in relation to the

State as the President may by order specify:

Provided that no such order which relates to the matters specified

in the Instrument of Accession of the State aforesaid shall be

issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other

than those referred to in the last preceding proviso shall be issued

except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in

sub-clause (b) (ii) or in the second proviso to sub-clause (d) of

clause (1) was given before the Constituent Assembly for the

purpose of framing the Constitution of the State is convened, it

shall be placed before such Assembly for such decision as it may

take thereon.

(3) Notwithstanding anything in the preceding clauses of this

article, the President may, by public notification declare that this

article shall cease to be operative or shall be operative only with

such exceptions and modifications and from such date as he may

specify:

Page 27 of 121

Provided that the recommendation of the Constituent Assembly of

the State shall be necessary before the President issues such a

notification.”

19. The legislative authority of the Parliament over the State of

Jammu & Kashmir, referred to in the second portion of that Article

(Article 306-A), was stated to be governed primarily by the IoA. It was

further stated that since Jammu & Kashmir was one of the States

mentioned in Part III of the First Schedule (detailing the States and

territories of India at that point), Article 1 was to automatically apply.

Shri Ayyangar stated that other provisions in the Constitution would

apply to Jammu & Kashmir with such exception and modifications as

may be decided when the President issues an Order to that effect. With

respect to matters mentioned in the IoA, the issuance of such an Order

would require consultation with the Government of the State. For other

matters, concurrence of the Government would be required.

Shri Ayyangar then also turned to Clause (2) to canvass that it

relates particularly to those matters which are not mentioned in the IoA

and any addition with respect to such matters would be made with the

consent of the Constituent Assembly which may be called for the

purposes of framing the Constitution of the State of Jammu & Kashmir.

Article 211A (Article 238 of the Constitution of India, repealed on

1.11.1956) was not to apply to the State of Jammu & Kashmir, but that

was said to not be a permanent feature of the Constitution of the State.

So, when the Constituent Assembly of the State would meet and take a

Page 28 of 121

decision on its Constitution the range of its federal jurisdiction, the

President, may, on the recommendation of the Constituent Assembly,

issue an order stating that Article 306-A shall cease to be operative, or

shall be operative only subject to such exceptions and modifications as

may be specified by him. There were undoubtedly dissenting views on

the introduction of Article 306-A (including by Dr. Ambedkar on its very

inclusion). But, the fact remains that, ultimately, it was proposed as a part

of the Constitution as Article 370, and the Constitution was adopted by

the people of this country with that provision.

Constituent Assembly of the State of J&K and Article 370

20. On 9.6.1949, Maharaja Hari Singh, who was taking a ‘temporary’

leave of absence, issued a proclamation entrusting Yuvraj Karan Singh

with all his powers and functions, in regard to the State and Government

of Jammu & Kashmir.

On 25.11.1949, Yuvraj Karan Singh, as regent,

issued a proclamation accepting the new Constitution of India.

proclamation was issued on 1.5.1951 by Yuvraj Karan Singh directing

the establishment of an elected Constituent Assembly to draft a

Constitution for the State of Jammu & Kashmir.

In August, 1951,

elections were conducted for the constitution of the Constituent

Assembly. The only effective opposition group to the National

A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir (Oxford University

Press, India 2014) 48, 49.

A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir (Oxford University

Press, India 2014) 78.

A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir (Oxford University

Press, India 2014) 95.

Page 29 of 121

Conference, the Praja Parishad, in Jammu, boycotted these elections.

This boycott arose out of the rejection of the candidature of all 27 Praja

Parishad members for election to the Constituent Assembly. Resultantly,

72 of the 75 members were elected unopposed on the National

Conference Ticket, to the Constituent Assembly.

21. In the meantime, in exercise of powers under Article 370(1) of the

Constitution of India, and following consultation with the Government of

Jammu & Kashmir, the President issued the Constitution (Application to

Jammu & Kashmir) Order, 1950 (hereinafter referred to as “C.O. 10”)

dated 26.1.1950, identifying a Schedule of those subjects which

corresponded to the IoA and regarding which, alone, the Parliament had

law making power for the State of Jammu & Kashmir, in terms of Article

370(1)(b)(i). Further, C.O. 10 clarified that along with Articles 1 and 370

of the Constitution of India, only those constitutional provisions would

apply to the State of Jammu & Kashmir as identified in the Second

Schedule of the said C.O., subject to the specified exceptions and

modifications.

22. On 10.6.1952, an Interim Report was submitted by the Basic

Principles Committee, which had been appointed on 7.11.1951, for

evolving basic principles for the framing of the Constitution of Jammu &

Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story, (Bloomsbury India 2019) 100.

Page 30 of 121

Kashmir.

This Report recommended the termination of the institution of

hereditary rulership, and of providing for an elected head of State, which

was eventually accepted by the Constituent Assembly of Jammu &

Kashmir.

The President of India, exercising his powers under Article

370(3), and upon the recommendation of the Constituent Assembly of the

State of Jammu & Kashmir, issued the Declaration under Article 370(3)

of the Constitution (hereinafter referred to as “C.O. 44”) effective from

17.11.1952, to include an explanation that the phrase ‘Government of the

State’ meant the ‘Sadar-i-Riyasat’ of Jammu & Kashmir, acting on the

aid and advice of the Council of Ministers of the State for the time being

in office. Yuvraj Karan Singh became the first elected Sadr-i-Riyasat.

23. The Delhi Agreement was finally entered into in the July of 1952,

between the Government of India and the Government of Jammu &

Kashmir,

which provided that the residuary powers of the legislature

vested in the Parliament with respect to the other States would vest in the

State itself, for the State of Jammu & Kashmir. A statement was made by

Sheikh Abdullah in 1952, to the effect that while the accession of the

State of Jammu & Kashmir in India was complete in fact and in law, to

the extent of the subjects enumerated in the IoA, the autonomy of the

A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir (Oxford University

Press, India 2014) 111-113.

A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir (Oxford University

Press, India) 117-120, 217-223.

A.G. Noorani, The Kashmir Dispute 1947-2012, vol. 2 (Tulika Books 2013) 401.

Ramachandra Guha, India After Gandhi: The History of the World's Largest Democracy (Picador

2008) 248.

Page 31 of 121

State with regard to all other subjects was to be preserved.

Contra to

the other States, the residuary powers vested in the State of Jammu &

Kashmir itself.

24. This period witnessed opposition to the provisions of the Delhi

Agreement, inter alia pertaining to the limitations and restrictions placed

on the applicability of the Constitution of India with respect to

fundamental rights, emergency powers exercisable by the President of

India and the jurisdiction of the Supreme Court of India. This opposition

was acute in the Jammu region and was bolstered by a nationalist call for

the abolition of Article 370 of the Constitution of India, led by the

erstwhile Bharatiya Jana Sangh under the aegis of Dr. Shyama Prasad

Mukherjee and the Praja Parishad.

25. The political relationship between the Jammu & Kashmir

Government, led by Sheikh Abdullah, and the Central Government, led

by Pandit Jawaharlal Nehru, unfortunately, deteriorated to a point where

it was perceived that Sheikh Abdullah was leaning towards separation of

the State, and by the middle of July 1953, he publicly demanded that

Kashmir should become independent. Sheikh Abdullah was consequently

Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story, (Bloomsbury India 2019) 102-103.

As per the Delhi Agreement between the Government of India and Government of Jammu &

Kashmir, entered into in July 1952; See also Ramachandra Guha, India After Gandhi: The History of

the World's Largest Democracy (Picador 2008) 248.

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) 171-172. See also

Bipin Chandra, Mridula Mukherjee & Aditya Mukherjee, India After Independence 1947-2000

(Penguin Books 2007) 418.

Page 32 of 121

dismissed as the Prime Minister and a new Government immediately put

in place, headed by Bakshi Ghulam Mohammed, with Sheikh Abdullah

put under arrest.

He was finally released only in April, 1964.

The

President issued The Constitution (Application to Jammu and Kashmir)

Order, 1954 on 14.5.1954 (hereinafter referred to as “C.O. 48”) with the

concurrence of the Government of Jammu & Kashmir, superseding C.O.

10. Paragraph 2 of this Order sets out the provisions of the Constitution

which, in addition to Articles 1 and 370, would be applicable to the State

of Jammu & Kashmir, subject to the exceptions and modifications

specified. One of the notable specifications introduced, which is of

significance to the present matter, was a second proviso to Article 3 of

the Constitution of India, as applied to the State of Jammu & Kasmir,

which reads as under:

“Provided further that no Bill providing for increasing or

diminishing the area of the State of Jammu and Kashmir or altering

the name or boundary of that State shall be introduced in

Parliament without the consent of the Legislature of that State.”

26. The Constituent Assembly of Jammu & Kashmir approved and

adopted the Constitution of Jammu & Kashmir on 17.11.1956, and the

said Constitution came into force on 26.1.1957. In terms of the Preamble

of this Constitution,

A.G. Noorani, The Kashmir Dispute: 1947-2012, vol. 1 (Tulika Books 2013) 44.

Bipin Chandra, Mridula Mukherjee & Aditya Mukherjee, India After Independence 1947-2000

(Penguin Books 2007) 418-419.

Page 33 of 121

“WE, THE PEOPLE OF THE STATE OF JAMMU AND

KASHMIR, having solemnly resolved, in pursuance of the

accession of this State to India which took place on the twenty-

sixth day of October, 1947, to further define the existing

relationship of the State with the Union of India as an integral part

thereof, and to secure to ourselves --

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among

us all;

FRATERNITY assuring the dignity of the individual and the unity

of the Nation;

IN OUR CONSTITUENT ASSEMBLY this seventeenth day of

November, 1956, do HEREBY ADOPT ENACT AND GIVE TO

OURSELVES THIS CONSTITUTION.”

27. Some of the relevant Sections of the Jammu & Kashmir

Constitution, which would require discussion are being reproduced

hereinunder:

“PART I

PRELIMINARY

xxxx xxxx xxxx xxxx xxxx

2. Definitions.-(1) In this Constitution, unless the context otherwise

requires-

(a) "Constitution of India" means the Constitution of India as

applicable in relation to this State;

Page 34 of 121

xxxx xxxx xxxx xxxx xxxx”

“PART II

THE STATE

(3) Relationship of the State with the Union of India.- The State

of Jammu and Kashmir is and shall be an integral part of the Union

of India.

(4) Territory of the State.- The territory of the State shall comprise

all the territories which on the fifteenth day of August, 1947, were

under the sovereignty or suzerainty of the Ruler of the State.

(5) Extent of executive and legislative power of the State.- The

executive and legislative power of the State extends to all matters

except those with respect to which Parliament has power to make

laws for the State under the provisions of the Constitution of India.

.... …. …. …. …. ….

THE COUNCIL OF MINISTERS

35. Council of Ministers to aid and advise the Governor.

(1) There shall be a council of Ministers with the Prime Minister at

the head to aid and advise the Sadar-i-Riyasat in the exercise of his

functions.

(2) All functions of the Sadar-i-Riyasat except those under

sections 36, 38 and 92 shall be exercised by him only on the advice

of the Council of Ministers.

(3) The question whether any, and if so what, advice was tendered

by Ministers to the Sadar-i-Riyasat shall not be inquired into in any

court.

Page 35 of 121

.... …. …. …. …. ….

53. Session of the Legislature, prorogation and dissolution.

(1) The Sadar-i-Riyasat shall from time to time summon each

House of the Legislature to meet at such time and place as he

thinks fit, but six months shall not intervene between its last sitting

in one session and the date appointed for its first sitting in the next

session.

(2) The Sadar-i-Riyasat may from time to time –

(a) prorogue the Houses or either House

(b) dissolve the Legislative Assembly.

.... …. …. …. …. ….

BREAKDOWN OF CONSTITUTIONAL MACHINERY

92. Provisions in case of failure of constitutional machinery in

the State.- (1) If at any time the Governor is satisfied that a

situation has arisen in which the Government of the State cannot

be carried on in accordance with the provisions of this

Constitution, the Governor may by Proclamation-

(a) assume to himself all or any of the functions of the Government

of the State and all or any of the powers vested in or exercisable by

anybody or authority in the State;

(b) make such incidental and consequential provisions as appear to

the Governor to be necessary or desirable for giving effect to the

objects of the Proclamation, including provisions for suspending in

whole or in part the operation of any provision of this Constitution

relating to anybody or authority in the State:

Provided that nothing in this section shall authorise the Governor

to assume to himself any of the powers vested in or exercisable by

Page 36 of 121

the High Court or to suspend in whole or in part the operation of

any provision of this Constitution relating to the High Court.

(2) Any such Proclamation may be revoked or varied by a

subsequent Proclamation.

(3) Any such Proclamation whether varied under sub-section (2) or

not, shall except where it is a Proclamation revoking a previous

Proclamation, cease to operate on the expiration of six months

from the date on which it was first issued.

(4) If the Governor by a Proclamation under this section assumes

to himself any of the powers of the Legislature to make laws, any

law made by him in the exercise of that power shall, subject to the

terms thereof, continue to have effect until two years have elapsed

from the date on which the proclamation ceases to have effect,

unless sooner repealed or re-enacted by an Act of the Legislature,

and any reference in this Constitution to any Acts of or laws made

by the Legislature shall be construed as including a reference to

such law.

(5) No Proclamation under sub-section (1) shall be issued except

with the concurrence of the President of India.

(6) Every Proclamation under this section shall, except where it is

a Proclamation revoking a previous Proclamation, be laid before

each house of the Legislature as soon as it is convened.”

“PART XII

AMENDMENT OF THE CONSTITUTION

147. Amendment of the Constitution.- An amendment of this

Constitution may be initiated only by the introduction of a Bill for

the purpose in the Legislative Assembly and when the Bill is

passed in each House by a majority of not less than two-thirds of

the total membership of that House, it shall be presented to the

Governor for his assent and, upon such assent being given to the

Page 37 of 121

Bill, the Constitution shall stand amended in accordance with the

terms of the Bill:

Provided that a Bill providing for the abolition of the Legislative

Council may be introduced in the Legislative Assembly and passed

by it by a majority of the total membership of Assembly and by a

majority of not less than two-thirds of the members of the

Assembly present and voting:

Provided further that no Bill or amendment seeking to make any

change in-

(a) this section; or

(b) the provisions of Sections 3 and 5; or

relation to the State,

shall be introduced or moved in either House of the Legislature.”

28. The Constitution (Application to Jammu and Kashmir) Third

Amendment Order, 1964 (hereinafter referred to as “C.O. 71”) dated

21.11.1964, modified the Constitution of India, as applicable to the State

of Jammu & Kashmir, and made Article 356 applicable to the State, with

the modification that the expression ‘Constitution’ included the

‘Constitution of Jammu & Kashmir’. The Constitution of Jammu and

Kashmir (Sixth Amendment) Act, 1965, was passed on 10.4.1965,

replacing the expressions ‘Sadar-i-Riyasat’ and the ‘Prime Minister’ in

the State Constitution with the ‘Governor’ and the ‘Chief Minister’

respectively. Simultaneously, the Constitution (Application to Jammu &

Page 38 of 121

Kashmir) Second Amendment Order, 1965 (hereinafter referred to as

“C.O. 74”) was issued by the President of India in concurrence with the

Government of the State of Jammu & Kashmir, under Article 370(1). It

inter alia amended CO 48 to substitute Article 367(b) to reflect the

nomenclature change of Sadar-i-Riyasat to Governor.

29. Political negotiations and developments saw the Kashmir Accord,

1975 being entered into between the Government of India and the

Government of Jammu & Kashmir, inter alia, emphasizing that the

relationship between the two would be governed by Article 370 of the

Indian Constitution (as per Clause (1) of the Kashmir Accord). Clause (2)

of the Accord reiterated that the residuary powers would remain with the

State. With this, came the rehabilitation and re-establishment of Sheikh

Abdullah as the Chief Minister of Jammu & Kashmir, with the then Chief

Minister Syed Mir Qasim stepping down.

This was with the support of

the Congress Party, which had a majority in the Jammu and Kashmir

State Assembly, on the understanding that fresh elections would be held

soon.

30. The political stability, however, did not last long with the

imposition of the 1975 Emergency. When the Congress Party lost the

1977 Lok Sabha elections, support was withdrawn from Jammu &

David E. Lockwood, ‘Kashmir: Sheikh Abdullah's Reinstatement’ (1975) 31(6) The World Today,

250 <https://www.jstor.org/stable/40394860?seq=1>.

A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir (Oxford University

Press, India) 16-17.

Page 39 of 121

Kashmir. This led to the fall of Sheikh Abdullah’s Government in March

1977 and imposition of Governor’s Rule.

However, Sheikh Abdullah’s

National Conference came back into power in the 1977 state elections.

1989-1990 onwards: Another troubled time

31. God and nature have been very kind to the Kashmir Valley.

Unfortunately, the human species has not been so considerate. The

1980s saw some troubled times culminating in the 1987 elections, which

saw allegations and counter-allegations.

There was a growth of

fundamentalism fueled from across the border. The 1971 creation of

Bangladesh was not forgotten. Unemployed and frustrated youth were

trained as militia and were sent back into Kashmir to create chaos. It was

a major change for people who, irrespective of faith, were known for

peace and tolerance. The Kashmiri Shaivism and Islamic Sufism were

taken over by such militant tendencies. Prior to this, what Sir Walter

Lawrence wrote about the absence of crime against persons in Kashmir

had held good.

There was a mass exodus of the Kashmiri Pandit

community, threatened for their life and property, changing the very

cultural ethos of Kashmir. There has been little turn-back despite three

decades on this issue. It was a proxy war on the territory of India with

A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir (Oxford University

Press, India) 17.

Surinder Mohan, ‘Democracy in Jammu and Kashmir 1947-2008’ 2012 16(3) World Affairs, 104 <

https://www.jstor.org/stable/48504940>.

A.G. Noorani, The Kashmir Dispute 1947-2012, vol. 2 (Tulika Books 2013) 543.

P.N.K Bamzai, Culture and Political History of Kashmir: Modern Kashmir, vol. 3 (M.D.

Publications Pvt. Ltd., New Delhi 1994) 852.

Page 40 of 121

active support from across the border.

32. In order to curtail the activities of terrorists, either from across the

border, or indigenous, armed forces and paramilitary forces were brought

in. The kidnapping of the daughter of the then Home Minister Mufti

Mohammad Sayeed, and her subsequent release in exchange for terrorists

detained,

lit the last match, which produced such unprecedented fire

that it engulfed the whole Valley. The bottom-line is that today’s

generation aged 35 years or younger have not seen the cultural milieu of

different communities, which formed the very basis of the society in

Kashmir.

33. Re-establishment of democracy was sought to be affirmed by the

elections held in 1996.

There have been constant endeavours thereafter

to find a peaceful solution to the problem of Kashmir, with the former

Prime Minister P.V. Narasimha Rao stating that the “…sky is the limit”

for autonomy of the State and Shri Atal Bihari Vajpayee raising the

slogan of Insaniyat, Jamhuriyat, Kashmiriyat (i.e., Insaniyat: Humanism;

Jamhuriyat: Democracy; Kashmiriyat: Inclusive culture of Kashmir, with

amity between Hindus and Muslims).

‘After five days, Kashmiri militants releases Home Minister Mufti Mohammed Sayeed's daughter’

India Today (31 December, 1989) < https://www.indiatoday.in/magazine/special-

report/story/19891231-kashmiri-militants-releases-rubaiya-daughter-of-union-home-minister-mufti-

mohammed-sayeed-816863-1999-11-30>.

Surinder Mohan, ‘Democracy in Jammu and Kashmir 1947-2008’ 2012 16(3) World Affairs, 112-

113 < https://www.jstor.org/stable/48504940>.

Page 41 of 121

The recent developments

34. The trigger for this batch of petitions is the enactments by the

Parliament in August 2019. We may add here that, on account of the

coalition Government of the Bharatiya Janata Party (hereinafter referred

to as “BJP”) and the Peoples Democratic Party (hereinafter referred to as

“PDP”) collapsing, Governor’s Rule was imposed on 20.6.2018, under

Section 92 of the Constitution of Jammu & Kashmir, as the constitutional

machinery in the State had failed and thus, all powers and functions of

the Government of the State were conferred on the Governor. On

21.11.2018, the Governor, under Section 53(2)(b) of the Constitution of

Jammu & Kashmir, dissolved the Legislative Assembly of the State. This

was just prior to the expiry of the proclamation of Governor’s Rule, at the

end of the six-month period, on 19.12.2018. A resolution approving the

proclamation of President’s Rule issued under Article 356 of the

Constitution of India, by the President of India on 19.12.2018, was

passed in the Lok Sabha and the Rajya Sabha. As per this proclamation

[GSR 1223(E)], the President assumed all the functions of the

Government of the State as also all the powers exercisable by the

Governor. All powers of the Legislature of the State were to be exercised

by the Parliament. Further, the first and second provisos to Article 3 of

the Constitution of India as applicable to the State of Jammu & Kashmir,

insofar as they related to the reference by the President to the Legislature

of the State, came to be suspended. Further, by way of GSR 1224 (E),

issued on the same date, the powers assumed by the President under GSR

1223 (E) were held to also be exercisable by the Governor of the State.

Page 42 of 121

The President’s Rule was then extended for a further period of six

months, w.e.f. 3.7.2019, as the State Assembly Elections had not been

held in the meantime.

35. The State of Jammu & Kashmir issued a security advisory on

2.8.2019, advising all Amarnath yatris to stop their yatra midway and

return in view of certain intelligence inputs of terror threats.

36. On 5.8.2019, the fateful day, the President of India issued the

impugned Order titled ‘The Constitution (Application to Jammu &

Kashmir) Order, 2019’ (hereinafter referred to as “C.O. 272”), under

Article 370(1) of the Constitution of India with the concurrence of the

Government of State of Jammu & Kashmir (through the Governor, as the

powers of the Government of the State vested in the Governor at that

time). Article 367(4) was inserted in the Constitution of India in that

process, and Article 367(4)(d) in effect amended sub-clause (3) Article

370 of the Constitution of India, by replacing the expression ‘Constituent

Assembly of the State’ with ‘Legislative Assembly of the State’. This

happened at 11:00 a.m. approximately.

37. At 11:15 a.m., two statutory resolutions, viz., a Statutory

Resolution regarding cessation of all clauses of Article 370 except clause

(1), and a Statutory Resolution regarding the Jammu & Kashmir

Reorganisation Bill, 2019, were introduced in the Rajya Sabha. The

Reorganisation Bill provided for reorganising the existing State of

Jammu & Kashmir into two Union Territories – one of Jammu and

Page 43 of 121

Kashmir and the other of Ladakh, comprising territories of the erstwhile

State of Jammu & Kashmir, namely Kargil and Leh Districts. The said

Bill further clarified that there was to be a Legislative Assembly for the

Union Territory of Jammu & Kashmir. At 5:30 p.m., the Statutory

Resolution in respect of the Jammu & Kashmir Reorganisation Bill, 2019

was passed by the Lok Sabha, by way of a voice vote. It may be noted

that pursuant to the Presidential Proclamation dated 19.12.2018,

Parliament was exercising the powers of the State Legislative Assembly,

in its absence.

38. Soon thereafter, the Resolution regarding cessation of all clauses of

Article 370, except clause (1) and the Statutory Resolution regarding the

reorganisation of the State of Jammu & Kashmir was passed by the Rajya

Sabha, and on the next day by the Lok Sabha. We are informed that these

Resolutions were, in fact, passed by 2/3 majority of the Members present

and voting, both of the Lok Sabha and the Rajya Sabha.

39. On 6.8.2019, the President issued a Declaration under Article

370(3) of the Constitution (hereinafter referred to as “C.O. 273”), as

amended by C.O. 272, declaring that Article 370 would cease to apply

w.e.f. 6.8.2019. It is the case of the petitioners that, effectively, this

endeavour emasculated Article 370 without formally abolishing it using

the route of a constitutional amendment.

40. On 9.8.2019, upon receiving the assent of the President of India, in

exercise of powers under Section 2(a) of the Jammu & Kashmir

Page 44 of 121

Reorganisation Act, 2019 (hereinafter referred to as “the said Act”), the

respondent, through the Ministry of Home Affairs, issued a notification

bearing number SO 2889 (E), for provisions of the said Act to come into

force, w.e.f. 31.10.2019.

41. This is what has resulted in the batch of petitions.

42. The other development has been that in pursuance of the aforesaid,

on 31.10.2019, the two Union Territories were carved out and President’s

Rule was revoked.

The Challenge

43. A clutch of writ petitions have been filed in the present case. The

oral submissions were led by Mr. Kapil Sibal, learned senior counsel, on

behalf of Mohd. Akbar Lone and Hasnain Masoodi. Inter alia, these

challenge the following State actions:

i. Para (c)(ii) of the Proclamation of President’s Rule in the State

of Jammu & Kashmir vide GSR 1223(E) dated 19.12.2018, and

extended for a further period with effect from 3.7.2019.

ii. Concurrence given by respondent No.2 State enabling the

President of India to issue Constitution of India (Application to the

State of Jammu and Kashmir), Order 2019, numbered CO 272

dated 5.8.2019.

Page 45 of 121

iii. Constitution of India (Application to the State of Jammu &

Kashmir), Order 2019 numbered CO No.272 dated 5.8.2019.

iv. Declaration under Article 370(3) of the Constitution numbered

CO No.273 dated 6.8.2019.

v. The Jammu and Kashmir Reorganisation Act, 2019 (Act No.34

of 2019) which received the assent of the President on 9.8.2019.

44. The oral submissions were elaborate, relying on voluminous

documents, reports, views, texts and such. The counsels did endeavour to

divide the submissions amongst themselves but due to their nature, there

was a considerable overlap of the submissions. Thus, to record

submissions of each counsel would require a lot of duplication, which is

why it has been thought expedient to deal with the submissions, under

different heads of submissions rather than counsel-wise. This will

additionally help in making the judgment crisper and help in focusing on

the areas of contention between the two parties. Thus, the discussion.

1. The relation between the Union and the State of Jammu &

Kashmir.

A. The evolution of constitutional relationship between the

Union and the State of Jammu & Kashmir prior to the

impugned executive actions:

A great deal of emphasis was laid on the assurances held out to the

Princely State of Jammu & Kashmir prior to it acceding to the

Page 46 of 121

Indian State and the consequent constitutional guarantees which

emerged in the Constitution of India as evinced by Article 370 of

the Constitution of India. Thus, the impugned executive action was

alleged to be in breach of the assurances held out and the

constitutional scheme which evolved in pursuance thereof. We

may summate the different aspects urged on this behalf by the

counsel.

i. Article 370(1) is stated to be sui generis as it opened with a

non obstante clause. The State of Jammu & Kashmir was excluded

from Article 238; which limits the lawmaking power of the

Parliament; and there was no democratic institution in the State at

the time of accession. A final decision on the nature of federal

relations crystallized when a democratic frame to determine this

was put into existence which was then agreed upon by the

Constituent Assembly amongst others. This decision was unique in

character as it was urged to be a different arrangement from other

States who had merged in the Indian Union. We may note a little

divergence on the significance of the Constituent Assembly as

according to Mr. Zafar Shah, the Constituent Assembly alone was

to determine the relationship while according to Mr. Kapil Sibal,

learned Senior Counsel there could be other aspects, however in

the given circumstances that would not be germane.

ii. The text of Article 370 reflects the “level of cooperation”

between the Union and the State Government. The endeavour was

Page 47 of 121

to accommodate the views of Jammu & Kashmir to facilitate the

accession. Thus, the scheme of accession proceeded on the basis

of consultation, concurrence and recommendation, the last being

the narrowest and most exceptional.

iii. A great deal of reliance was placed on the statements of Shri

Gopalaswami Ayyangar in the Constituent Assembly debates

conducted on 17 October 1949 qua Article 370 emphasising that

the very existence and structure of Article 370 was necessitated

due to the peculiar conditions prevailing in the State at that time.

As to what would be the fate of Article 370 ultimately and whether

it could at all be abrogated was left only to the Jammu & Kashmir

Constituent Assembly which in turn reflected the will of the

people. This was the common theme of submissions of Mr. Sibal,

Mr. Zafar Shah and Mr. Dushyant Dave.

iv. Article 370 is animated by a spirit of bilateralism. The

Presidential Orders, particularly C.O. 48 provided for coextensive

law-making powers between the Legislative Assembly and the

Parliament. Article 246 was curtailed in its application to Jammu

& Kashmir while on the other hand Section 5 of the Jammu &

Kashmir Constitution extended the Assembly’s power to all

matters except those where the Parliament had the power. Thus,

Mr. Gopal Subramaniam’s contention was that the Parliament and

the State Assembly spoke through the medium of Article 370,

which was the fulcrum of the governing relationship.

Page 48 of 121

v. Mr. Rajiv Dhawan, senior counsel, sought to contend that there

were different provisions in the Constitution dealing with the

federal structure and the existence of Article 370 in the Indian

Constitution was a facet of India’s “multi-symmetrical” federal

structure. The Constitution, thus, provides for varying level of

autonomy to different federal units in order to address the unique

historical contingencies. He sought to rely on the observations of

this Court in R.C. Poudyal v. Union of India

to advance the

argument that this Court had favourably treated such contingencies

as relevant aids to legal interpretation of the constitutional

relationship.

B. Article 370 had assumed permanence in the Constitution of

India:

i. The Constituent Assembly of Jammu & Kashmir

Constituent at the time debated the relationship for a number of

years before deciding not to recommend the pathway to statehood

as offered via Article 370(3) of the Constitution, with the

consequence that this special relationship envisaged between the

State and the Union acquired a permanent status. Thus, Article 370

was permanently implemented, which could only be subject to

changes in its legislative power and application of the

constitutional provisions under Article 370(1) of the Constitution.

1994 Supp (1) SCC 324

Page 49 of 121

The observations made in Sampat Prakash v. State of J&K

were

referenced by Mr. Sibal for the aforesaid proposition, which was

further strengthened by the recommendation of the Constituent

Assembly of the State which plead that the Article should be

operative with one modification to be incorporated in the

explanation clause (1) of the Article, which was notified by C.O.

44 dated 15.11.1952. The inference drawn by this Court was that

the Constituent Assembly of the State did not desire for this Article

to cease to be operative. In fact, it agreed to the continued

operation of this Article by recommending that it should be

considered operative with this modification only.

ii. Part XXI of the Constitution, which incorporates Article 370

is titled as “Temporary, Transitional and Special Provisions.”

With respect to how the expression ‘temporary’ is to be

understood, a common theme of submissions was presented by Mr.

Kapil Sibal, Mr. Gopal Shankarnarayan. The use of the phrase

“temporary” was stated to be in a limited sense by the nature of

Article 370, i.e., and the final decision on its continuance was to be

taken by the Jammu & Kashmir Constituent Assembly. However,

once the Assembly dissolved, there is no conceivable way that

Article 370 could remain temporary, even if the phrase was not

deleted from the Constitution. In a sense it was urged that the

1969 (2) SCR 365

Page 50 of 121

phrase ‘temporary’ became infructuous after the Constituent

Assembly of the State had done its task.

iii. The Constituent Assembly of the State had a wide and

defined role. Since no other body could take over the role of the

State Constituent Assembly, neither could the Legislative

Assembly. The constituent power was urged to be a different genus

from the legislative power, as per Mr. Sibal.

iv. It was urged by the petitioners that the marginal heading to

the provision could not dictate the very contents of the provisions.

To stress this the speeches of Dr. Ambedkar from the Constituent

Assembly and the observations made in Kesavananda Bharati v.

State of Kerala

were quoted.

v. The C.O. 48 was urged to be a bilateral effort and a sign of

confirmation both by the Jammu & Kashmir Constituent Assembly

and the Indian Government that the provision must continue. The

report of the J&K Constituent Assembly Drafting Committee was

adopted verbatim as C.O. 48 to clearly define the sphere of

Parliament’s jurisdiction in the State.

vi. A uniquely divergent view was urged by Mr. Dinesh

Dwivedi, learned senior counsel, which was not common to any of

(1973) 4 SCC 225

Page 51 of 121

the other counsel. It was his say that once the Jammu & Kashmir

Constituent Assembly was dissolved, Article 370 came to an end.

Article 370(2) of the Constitution, gave the Constituent Assembly

the final authority on deciding upon the continuance of the

Presidential orders made under Article 370(1) and, thus, no fresh

orders could be made after the Assembly ceased to be in existence.

Thus, he urged that all C.O.s issued from time to time were

without the constitutional mandate and that the view adopted in

Sampat Prakash

case was not the correct view. Nevertheless, the

two Constitutions would keep operating concurrently and in

perpetuity.

We may note from a preliminary round of this very matter

that an endeavour was made by some counsel, contending that the

matter be considered by a Bench larger than five Judges. The plea

to refer to a larger Bench was negated by the judgment of this

Court in Dr. Shah Faesal and Ors. v. Union of India and Anr

The contention before us was in a way simply a repetition of what

was urged at that time and was therefore specifically negated for

reasons recorded in paras 42 to 45 of that judgment while opining

that there was no conflict of judgment in Prem Nath Kaul v. State

of J&K

and Sampat Prakash

case.

supra

(2020) 4 SCC 1

1969 Supp (2) SCR 270

supra

Page 52 of 121

vii. Article 370 could be abrogated only through Article 368,

assuming that 370(3) of the Constitution, survived post the

dissolution of the Jammu & Kashmir Constituent Assembly as per

Mr. Dushyant Dave and Mr. S. Naphade. We may note that some

of the counsel in turn did not refrain from commenting on it as

according to them such a course of submissions was not required.

It was their understanding that Article 370(3), post the Jammu &

Kashmir Constituent Assembly dissolution, had a vestigial

existence on paper, and in its operative sense, it did not survive

since Article 378 is not the passage through which alleged

offensive action was taken. It was Mr. Sibal’s view that this would

be an academic exercise in the present proceedings.

C. The effect of Article 370(3) of the Constitution:

i. Article 370(3) is actually a fulcrum upon which the

arguments of both sides hinge on. It is the petitioner’s submission

that the power under Article 370(3) can be exercised only till the

Constituent Assembly of the State was in seizin. Once

recommendations of the State Constituent Assembly were made

and the said Assembly was dissolved, the power under Article

370(3) of the Constitution stands extinguished. The statement in

the Constituent Assembly of India debates by Shri Gopalaswami

Page 53 of 121

Ayyangar extracted in Prem Nath Kaul

case was relied upon for

this purpose.

ii. The petitioners referred to Article 370(3), submiting that the

phraseology “notwithstanding” used in the beginning in the context

of provisions of Articles 370 is followed by the phrase “the

President may”. Thus, there is a conditional characteristic present.

The proviso to Article 370(3) requires the recommendation of the

State Constituent Assembly, albeit sub clause (2) makes a

provision for such recommendation to be “necessary” before the

President issues a notification. Thus, the State Constituent

Assembly’s recommendation is mandatory before the President of

India can exercise the power. The exercise of power by the

President was, thus, conditional as submitted by Mr. Gopal

Shankarnarayan.

iii. A reading of the documents executed by the Maharaja as the

Instrument of Accession, seeks to preserve the preliminary

legislative power of the Maharaja and the powers provided by the

Jammu & Kashmir Constitution were not proscribed by Article

370 of the Constitution.

iv. A distinction was sought to be carved out between the

Instrument of Accession and the Merger Agreement. Historically,

supra

Prem Nath Kaul (Para 38)

Page 54 of 121

the Instrument of Accessions were signed for the release of

‘external sovereignty’ and Merger Agreements were signed for the

release of ‘internal sovereignty’. In this regard, observations of this

Court in Promod Chandra Deb v. State of Orissa

were referred

to, to highlight this distinction. In this context, it was submitted by

both Mr. Rajiv Dhawan and Mr. Zafar Shah that the Maharaja Hari

Singh or his successors never signed any merger agreement with

the Dominion and, thus, retained their legislative powers.

v. The assimilation of more than 600 States as part of India

through the mechanism of Instruments of Accession and Merger

Agreements must be understood in the historical context in which

they were executed. The submission, thus, was that such historical

agreements cannot be negated unilaterally by the Union of India by

relying on the observations in Madhav Rao Jivaji Rao Scindia v.

Union of India

in the context of the unilateral action by the

President therein, which was not upheld then, though the abolition

of privy purses was later upheld on account of the Parliament

having passed a law in regard to that.

vi. Mr. Zafar Shah in addition to the aforesaid sought to

contend that Article 370(3) of the Constitution at best could have

been used only to de-operationalise Article 370 of the Constitution.

1962 Supp (1) SCR 405

(1971) 1 SCC 85

Page 55 of 121

vii. The Constitution of Jammu & Kashmir was stated to derive

its authority from the sovereignty of Maharaja Hari Singh, which

was retained in the State, as reflected by the Merger Agreement not

being signed. Thus, it stands on its own feet and not by virtue of

the Constitution of India. The arrangement envisaged two

Constitutions to coexist, as enunciated by Y.V. Chandrachud, J. (as

he then was) in Kesavananda Bharati

case.

viii. The observations made in the State Bank of India v.

Santosh Gupta

opining that Jammu & Kashmir possessed no

sovereignty was urged to be treated as merely an obiter as the

Court had already decided that the legislative competence to enact

the SARFAESI Act, 2002 was to be found in List I. Thus, it was

submitted that there was no occasion to determine the sovereignty

(if any) inhering in Jammu & Kashmir and were alternatively

urged to be per incuriam in the light of the judgment in Prem Nath

Kaul

2. The Impugned Executive Orders are not competent to alter the

relationship between the State and the Union:

(supra) para 2072

(2017) 2 SCC 538

supra

Page 56 of 121

A. C.O. 272 is illegal and mala fide:

i. Mr. Sibal urged that while interpreting the constitutional

provisions, the constitutional values must be kept in mind and any

interpretation must be consistent with such constitutional values.

These constitutional values were enumerated as democracy,

federalism, and constitutional morality.

ii. The unilateral concurrence granted by the Governor to the

actions of the President under Article 370 of the Constitution was

assailed as the Jammu & Kashmir Constitution mandated that the

Governor could have acted only with the aid and advice of the

Council of Ministers. The exception to this could only be actions

present in Sections 36, 38 and 92 of the Jammu & Kashmir

Constitution.

iii. It was the bounden duty under the oath of the Governor

which required him to uphold and preserve the Jammu & Kashmir

Constitution, and the impugned action amounted to a breach of

said oath taken by the Governor.

iv. The constitutional power was not an instrument to efface

any other constitutionally vested power. The impugned action

practically amounted to effacing the power vested with the

Constituent Assembly of Jammu & Kashmir under Article 370(3).

Page 57 of 121

The principle of Miller v. Queen

was referred to regarding this

submission.

v. The impugned action amounted to an amendment of Article

370 of the Constitution by addition of clause (4) to Article 367 of

the Constitution. This exercise of power was stated to be mala fide

as it confirmed that the objective of the amendment was to confer a

specialized authority on the Legislative Assembly which could not

have ordinarily assumed that authority.

vi. The Governor of the State acts on the aid and advice of the

Council of Ministers. With the conditions not having been

satisfied, the provision was unworkable.

vii. Article 367 of the Constitution must be applied on its own

terms and was meant as an aid in interpretation. The said Article

could not be used to effectuate an amendment in another provision

of the Constitution like, Article 370.

viii. Article 370(3) of the Constitution begins with a non obstante

clause and, thus, Article 367 of the Constitution was not available

through that process as urged by Mr. Gopal Shankarnarayan.

ix. There was stated to be an implied relation in any delegated

power to create ‘exceptions and modifications’. This would

(2019) UKSC 41

Page 58 of 121

include the corresponding power of the President under Article

370(1)(d) and such limitations were urged to be well recognized in

the statutory provisions. There were stated to be more than one

judgment recognizing this limitation [Delhi Laws Act, In Re.

and

Kesavananda Bharati

case para 1423]. This would amount to

effacing fundamentals of the provisions and, thus, no exception

ought to be made.

x. The observations in Puranlal Lakhanpal v. President of

India

were required to be construed strictly as a mere obiter of

the Court. In the judicial adjudication already completed, the Court

had already determined that the modification in the facts of that

case did not constitute a ‘radical alteration’. The inherent

limitation of such power was recognized in the Kesavananda

Bharati

case and, thus, observations which set to dilute that

principle in Puranlal Lakhanpal

case have to be treated as per

incuriam.

B. C.O. 273 is illegal and mala fide:

The essence of the scheme of Article 370 of the Constitution was

stated to be that any decision under Article 370(3) must reflect the

will of the people. The State Constituent Assembly had already

1951 SCC 568

supra

(1962) 1 SCR 688

(supra) para 2072

(supra)

Page 59 of 121

been dissolved. There was no elected State Assembly. The issue

had not been put to the people in any other form and, thus, the will

the people was not reflected in any manner as urged by Mr. Sibal.

C. Improper exercise of power under Article 356 of the

Constitution while issuing C.O. 272 and C.O. 273.

i. Mr. Kapil Sibal, learned senior counsel, sought to

strenuously contend that the route adopted by the respondents was

Constitutionally unsustainable, as the power under Article 356

could not be used to amend the Constitution. What the respondents

had done was to amend the Constitution of India and in order to

avoid the most stringent norm specified for any amendment to the

Constitution, a substitute had been practiced while taking recourse

to Article 356 of the Constitution.

ii. Without prejudice to the aforesaid, it was urged that Article

356 of the Constitution could not be used to make irreversible

changes. Article 356 stipulated the provisions in case of failure of

the Constitutional machinery in the State. Thus, an alternative

arrangement had to be envisaged till the Constitutional machinery

was restored. The interregnum period could not be used to nullify

the powers, which solely vested with the Assembly of the State

The mechanism of Article 356 of the Constitution was confined to

Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1

Page 60 of 121

a method for restoration of elected Government i.e., restoration of

the democracy

iii. An additional plea, sought to be advanced by Mr. Rajeev

Dhavan, was that in the larger Constitutional scheme, the Supreme

Court should read in a condition in Article 356 such that the

Governor’s recommendation for imposing President’s Rule should

also be placed before the Legislative Assembly.

iv. Mr. Naphade, learned Senior Counsel, sought to urge that it

was not within the limit of the President’s power to issue a

proclamation that there was a breakdown of State machinery, thus

necessitating his intervention, while the Governor had dissolved

the Assembly and assumed power of the State. Once the Governor

assumes such power, the very basis of the breakdown of the State

machinery did not subsist

3. The big question mark of even altering the status of the State

to Union Territory.

A. Article 3 of the Constitution does not warrant the power to

convey a State into Union Territory.

i. Article 3 itself is under the heading ‘formation of new States

and alteration of areas, boundaries or names of existing States’.

S.R. Bommai v. Union of India, (1994) 3 SCC 1, (Para 108 By Sawant, J.)

K.N. Rajgopal v. M. Karunanidhi, (1972) 4 SCC 733

Page 61 of 121

As to what could be done under the same was specified in Clauses

(a) to (e). It does not mention any power to abolish a State and

such power could not be read into it. This was submitted to be in

line with the principle of a two-tier democracy.

ii. While referring to the pre-Constitutional period, as a

development in that behalf, it was urged that there was a consistent

progression towards self-governance and statehood since the

Government of India Act, 1919, where Section 15 of that Act also

mandated the process of obtaining opinions from the local

Government prior to reorganization into a Governor’s province.

This practice was also adopted in the Government of India Act,

1935, which was a precursor to Article 3 of the Constitution of

India. Thus, Mr. Chandra Uday Singh, learned senior counsel,

urged that the abolishment of a State and a lowering of status to

Union Territory was not something envisaged from earlier times.

iii. Once again from a historical perspective, it was urged that

since the introduction of the Seventh Amendment in 1955, no State

had been reduced to a Union Territory, though the reverse was true

i.e. Union Territories had been converted into States such as Goa,

Himachal Pradesh, Manipur, etc. It may be possible to carve out a

Union Territory out of a State, as in the case of Chandigarh, on

account of it being the capital of both Punjab and Haryana. The

enormous potentiality of misuse of the process was emphasized, as

in the future any politically inconvenient elected Government of a

Page 62 of 121

State could be affected by reducing that State into a Union

Territory.

iv. The conversion of a State into Union Territory was an

exercise carried out through a simple majority of both Houses of

Parliament. This extinguishes several Constitutional rights

guaranteed to States, such as rights to borrow upon the Security of

the Consolidated Fund of State under Article 293, as urged by Mr.

Chandra Uday Singh, learned Senior Counsel. Such an exercise, if

at all, at best, could have been carried out only through a

Constitutional Amendment with all its checks and balances. The

Constitution (18

Amendment) Act, 1966, which contained the

explanations to Article 3, had not been extended to Jammu &

Kashmir till the impugned action. It may be observed that the

Explanation I refers to Clauses (a) to (e) including Union Territory

within the expression ‘State’, but in the Proviso the ‘State’ did not

include a Union Territory. Explanation II referred to power

conferred on the Parliament by Clause (a) to include the power to

form a State or Union Territory by uniting a part of any State or

Union Territory to any other State or Union Territory.

B. The suspension of proviso to Article 3 was illegal.

i. The proviso to Article 3, as applicable to the State of Jammu

& Kashmir, could not be suspended through the route of Article

356, as urged by Mr. Rajeev Dhavan. This holds ground as the

proviso mandatorily envisaged an expression of democratic will of

Page 63 of 121

the people of the State, which was not possible as there was no

elected assembly at the relevant time, since it had been dissolved

and the power assumed by the Governor.

ii. The suspension of the Proviso to Article 3 must have a direct

nexus to the objective to be achieved by proclamation of the

President’s Rule under Article 356. If the objective was restoration

and preservation of State, then there was no need to suspend the

Proviso. The second Proviso, as applicable to the State of Jammu

& Kashmir, stipulated that no bill providing for increasing or

diminishing the area of the State of Jammu & Kashmir or altering

the name or boundary of that State should be introduced in

Parliament without the consent of the Legislature of that State.

iii. Mr. Dhavan emphasized that the President of India did not

have a carte blanche under Article 356. Article 356(1)(c) provides

that the President can suspend provisions of the Constitution

‘relating to any body or authority in the State’. The proviso under

Article 3 could not be said to fall in this category.

iv. The President can exercise only Legislative powers of the

Assembly under Article 356(1)(b) read with Article 357. The latter

refers only to the power to ‘make laws’. The power under the

proviso to Article 3 is non-legislative in character and more akin to

the power of election and consultation.

Page 64 of 121

The Constitutional defense of the respondents

1. The nature of the Constitutional relationship between the Union

and the State of Jammu and Kashmir prior to the impugned

Executive actions.

A. No semblance of sovereignty remained with the State of

Jammu & Kashmir, as its integration was complete.

i. As per Section 6 of the Government of India Act, 1935, as

confirmed by Section 6 of Indian Independence Act, 1947,

accession is complete in all respects once a ruler has accepted the

Instrument of Accession. Thus, both the Attorney General and

Solicitor General, urged that States are thereafter ‘united in a

Federation’ (in terms of Section 5 of the Government of India

Act), leaving no vestige of separate sovereignty. The supremacy of

the Constitution of India had been accepted by Yuvraj Karan Singh

in his Proclamation of 25.11.1949.

ii. Jammu & Kashmir was stated as standing on the same

footing as other acceding States. The rationale for the said

submission was:

a) 63 other States had their own Constitution prior to

accession.

b) representatives from Jammu & Kashmir also participated

in the Constituent Assembly; and

c) many other States did not sign any Merger Agreement.

Page 65 of 121

On all three accounts, it was urged that there was nothing

distinct about the accession of the State of Jammu and

Kashmir on the principle of sovereignty.

iii. Once authority was surrendered to the Dominion, the Jammu

& Kashmir Constituent Assembly had no sovereignty or plenary

power to create a document that had the status of a Constitution.

The Constitution of Jammu & Kashmir was urged to be a

document of internal governance and not a parallel Constitution.

This position was stated to be reflected by Section 5 of the Jammu

& Kashmir Constitution, which provided that the State’s law-

making powers extend only to the domain left to it by the

Constitution of India. Thus, the State Constitution certainly had the

‘inferior’ status vis-à-vis the Constitution of India, and Section 5 of

the Jammu and Kashmir Constitution was incapable of any

amendment. The State Constitution’s inferior status, thus, vis-à-vis

the Constitution of India was also made unalterable by Section 147

of the Constitution of Jammu & Kashmir.

iv. Individual agreements signed prior to accession have no

legal force. All obligations, vis-à-vis former Princely States, are to

be derived solely from the relevant Constitutional provisions. This

plea was sought to be supported by the earlier judicial

pronouncement in Raghunathrao Ganpatrao v. Union of India

1994 Supp (1) SCC 191

Page 66 of 121

which upheld the Constitutional validity of the Constitution

(Twenty-sixth Amendment) Act of 1971. This judgment in

Madhavrao Scindia’s case

was thus sought to be distinguishable

as it dealt with an impermissible exercise of President’s executive

power to remove the provision of the privy purses and that the

abolishment of the privy purses was upheld in the subsequent

judgment, post the necessary Legislative exercise.

v. In State of West Bengal v. Union of India

, it was opined

that the features of a compact or agreement between different

federal units is absent in the Constitution of India. This judgement

was thus cited. The said judgment instead provides for distribution

of power, which is not an index of sovereignty. Thus, legal

sovereignty is vested with the people of India, as submitted by Mr.

Rakesh Dwivedi, learned senior counsel.

vi. It was also urged by Mr. Rakesh Dwivedi that there could

not be any internal sovereignty once the Apex Court and organs of

the Union are allowed to operate in Jammu & Kashmir. C.Os had

been issued from time to time. Prior to the impugned CO, in terms

of various C.Os, the Union Government, Parliament, Supreme

Court, CAG, Delimitation Commission, Part XIII, introduction of

‘Governor’ and ‘Chief Minister’, activation of 94 out of 97 Entries

supra

(1964) 1 SCR 371

Page 67 of 121

in List I, Financial Provisions, Residuary powers, etc., have all

been applied to Jammu & Kashmir. Thus, the foundation had been

laid and what remained would be done under the impugned

actions.

B. Article 370, both from the Part in which it falls (Heading) as

well as reading of the transitional provision.

At no stage, it requires a permanency and if it had been so, the

necessary amendments would have been made to the Constitution.

It was also treated as a transitional provision. The proviso to

Article 370(3) of the Constitution became otiose once the State

Constituent Assembly dissolved itself.

i. Mr. Gopalaswami Ayyangar’s statements in the Constituent

Assembly were in fact supportive of the transient nature of the

arrangement under Article 370, as it was meant to endure only

until the situation in the State had been normalized.

ii. Various Presidential orders passed under Article 370(1),

especially C.O.10 (which applied a large part of the Constitution of

India to Jammu & Kashmir), show that Article 370(1) was a

mechanism to gradually bring the State on par with other States by

applying various provisions of the Constitution of India in a step-

by-step fashion and that exercise was completed by the impugned

Executive action.

Page 68 of 121

iii. If Article 370 of the Constitution were to be presumed to

have permanence, it would lead to an incongruous situation where

the President, in applying the Constitution of India to Jammu &

Kashmir under Article 370(1) would have near limitless power to

create exceptions and modifications (with the concurrence of the

State Government). In a historical perspective, this practice had led

to the application of the provisions of the Constitution of India in

the State in a patchwork fashion. The illustration of this practice

was enunciated when it was seen that CO48 removed references to

the Scheduled Tribes from Article 15(4). Article 19 was also

applied with modifications such that the Legislative Assembly had

the power to define what constituted ‘reasonable restrictions’ to

the freedoms under the said provision. Article 35A can be

considered as a new provision altogether, applied only to the State

of Jammu & Kashmir.

iv. The State Constituent Assembly did not give a

recommendation either way and that had left it to the discretion of

the supreme Executive authority, i.e. the President to abrogate

Article 370.

v. Article 370 prevented residents of Jammu & Kashmir from

being treated on par with other citizens of India. Ultimately

equality was the necessity. Thus, it could never have been intended

to be a permanent arrangement.

Page 69 of 121

C. Article 370(3) – How it works out? The proviso to Article

370(3) became otiose once the State Constituent Assembly

dissolved itself.

i. It was urged that Article 370 has always been interpreted in

a functional manner with due consideration of different historical

contingencies. Illustratively, in C.O. 39, we have applied Articles

54 and 55 with modifications to Jammu & Kashmir, recognized the

Constituent Assembly of the State as the Legislative Assembly

since there was no Legislative Assembly in the State at that time.

ii. Constitutional practice suggests that whenever a term in

Article 370 becomes otiose, it is replaced by the next functional

equivalent or its successor. Illustratively: a) C.O. 39 discussed

above; b) C.O. 44, which altered the definition of Sadar-i-Riyasat

in the Explanation to Article 370(1); and c) C.O. 48, which added

Article 367(4), whereby references to Legislative Assembly would

be construed as references to the Constituent Assembly for

purposes of voting in the Presidential election. It was, thus, a

working arrangement, which applied from time to time in its

perspective.

iii. Article 370(3) was in nature, a ‘safety valve’ entrusted with

the President, to be invoked when the political compromise

anticipated in Article 370(1) fails to achieve its purpose, as urged

by Mr. Harish Salve.

Page 70 of 121

iv. The observations in Puranlal Lakhanpal

case were cited,

where it held that the Presidential powers of creating exceptions

and modifications in applying provisions of the Constitution under

Article 370(1)(d) to be of the ‘widest possible amplitude’. These

observations were reaffirmed by the Constitution Bench of this

Court in the Sampat Prakash

100

case and, thus, could never be

considered as mere obiter.

v. The compliance of an impossible condition need not be

explicitly excused by the provision as per the maxim lex non cogit

ad impossibilia.

vi. Reading the proviso as a mandatory condition would be

impermissible as it would make the exercise of the President’s

powers conditional to the approval of an independent, non-

constitutional body. The Constitution of India envisaged the

President as a continuing institution and the Constituent Assembly

of Jammu & Kashmir as an ephemeral one. Thus, the latter’s

obsolescence cannot affect the powers of the former. The work of

the Constituent Assembly had been completed and with that

Article 370(3) had worked itself out.

(supra)

100

(supra)

Page 71 of 121

vii. There were only two Constitutionally compliant methods of

reading Article 370 – a) Reading in an unfettered plenary power of

the President under Article 370(3) once the State Constituent

Assembly dissolved itself; or b) replacing the Constituent

Assembly in Article 370(3) with its successor body. It is the latter

one, which has been adopted in the present case, it was urged by

the Solicitor General that though this option had been exercised,

both options were equally permissible.

viii. Article 370(3) of the Constitution consciously used the word

‘recommendation’ by the Constituent Assembly, which is an

inferior body to the President of India. Thus, a recommendation of

an inferior authority could never be binding on the superior

authority, as per Mr. Rakesh Dwivedi.

ix. Where the Constitution of India envisaged that the President

has to act only on directions of another authority, such contingency

has been explicitly expressed. Illustratively, Article 103(1) makes

the decision of the President final, but Article 103(2) requires the

President to obtain the opinion of the Election Commission and act

according to such opinion. In such a scenario, the President has no

other discretion and acts on the opinion of the Election

Commission. There is no deployment of the language

corresponding to the same in Article 370(3) and the term

‘recommendation’ implies that the President is not bound to act on

that recommendation.

Page 72 of 121

2. Whether the relationship could be altered by the impugned

Executive orders.

A. C.O. 272 is intra vires.

i. When an institution or clause contemplated in Article 370

became otiose, it can be replaced by its successor or next

functional equivalent. This alteration can be made through an

amendment to Article 367 which was permissible through the

exercise of powers under Article 370(1)(d). Such a practice had the

legal imprimatur in Mohd. Maqbool Damnoo v. State of Jammu

& Kashmir

101

, where the Constitution Bench of this Court upheld

the substitution of Sadar-i-Riyasat for Governor in C.O. 74.

ii. Alterations to Article 370 of the Constitution itself must be

permitted through the route of amending Article 367 in exercise of

the President’s powers under Article 370(1)(d). If this route is not

left open, Article 370 would become permanent, which is not what

the Constitution makers envisaged as inter alia apparent from the

Chapter under which it fell. The only other method to alter the

provision was through Article 370(3) (such as the change made in

C.O. 44). This route was closed after State Constituent Assembly

dissolved itself and the provision became otiose. Alternatively, if it

were to be accepted that Article 370(3) was the only possible route

101

(1972) 1 SCC 536

Page 73 of 121

to alter the provision, then even an amendment under Article 368

would have been impermissible.

iii. The amendment to Article 367, through Article 370(1)(d),

was also with concurrence, which is a sine qua non under the

second proviso to Article 370(1)(d). This is notwithstanding the

fact that the concurrence so obtained from the Governor was when

he was acting in place of the Council of Ministers. In any case,

‘concurrence’ constitutes a higher threshold than

‘recommendation’ and the framers consciously insisted on a lower

threshold of agreement under Article 370(3). The absence of

recommendation would not be fatal to the exercise of power.

iv. C.O. 272 reflects democratic principles, as it was made on

the recommendation of the Parliament. The decision of the

President also reflects a decision made on the aid and advice of the

Council of Ministers, which is collectively responsible to the

Parliament.

v. Any Constitutional measure meant to further equality and

fraternity, assuring the dignity of the individual, and the unity and

integrity of the nation should be welcomed

102

Raghunath Ganpatrao’s case (supra)

Page 74 of 121

B. C.O. 273 is intra vires.

i. In the line of the arguments already advanced, it was

suggested that when the Constituent Assembly dissolved itself

without giving any recommendation, the proviso to Article 370(3)

became otiose. However, this could never render the main

provision inoperative. The President would always have the power

to abrogate Article 370 in the absence of any modification to

Article 367 through C.O. 272. Nevertheless, the option under

Article 370(1)(d) was chosen in view of the strategic importance of

the State and the need to have the issue debated before both

Houses of Parliament.

ii. Article 370 vests the President with constituent power, i.e.

power to apply or re-fashion different provisions of the

Constitution of India, as applicable to Jammu & Kashmir. Thus, it

is not amenable to ordinary forms of judicial review, such as the

grounds of mala fides, etc. Delhi Laws, in Re was distinguishable

as the said case dealt with statutory delegation of power. But, on

the other hand, in the present scenario, the assignment of the

powers to the President is directly from the Constitution itself.

C. Permissible exercise of power under Article 356 while

issuing C.O. 272 and C.O. 273.

i. Article 356 encompasses/vests all shades of

legislative/constituent powers in the Parliament. The said powers

Page 75 of 121

cannot be limited by Article 357 as the said provision deals only

with the powers of the Parliament to ‘make laws’. Article 357 does

not deal with ‘powers of the legislatures’ as used in Article 356

(1)(b). There are thus, no implied limitations in the power under

Article 356.

ii. Petitioners have challenged the imposition of the Governor’s

and President’s Rule at a belated stage i.e., after almost 14 months.

3. Whether the alteration from a State to a Union Territory was

permissible?

A. Article 3 grants Parliament the power to convert a State

into a Union Territory.

i. C.O. 272 had already been issued by the President before the

Reorganization Act was passed. Thus, Article 3, as applied to the

rest of the country, applied to Jammu & Kashmir and the

additional proviso did not apply.

ii. Article 3 provides for a plenary power of the Parliament,

where it is entitled to consider factors such as national security,

integrity, etc. An assessment of these factors would not be

justiciable before the Court.

iii. In the process of scrutiny of the delimitation exercise

undertaken qua State of Jammu & Kashmir in Haji Abdul Ghani

Page 76 of 121

Khan v. Union of India

103

, this Court had held that Explanation I

to Article 3 provides Parliament with power to form new Union

Territories. This was in the context of the Reorganization Act.

Explanation II clarifies that such Union Territory can be formed by

uniting parts of any States. Thus, Parliament can convert a State

into one or more Union Territories.

iv. The power under Article 3 extends to effectively

extinguishing the existence of a State, notwithstanding any

assumption of sovereignty of the said State

104

v. The power is such that States only have the right to express

their views on proposals for reorganization. It is not necessary to

make a Constitutional amendment

105

. The power further extends to

providing the extent of representation in the State Legislature,

varying its numerical strength, and even affecting the existence of

a State Legislature

106

vi. Parliament is paramount in the matter of constitution of

States. Article 3 only envisages that the affected States will

‘express their views’. There is no requirement of concurrence

107

. In

effect, views are to be taken from the entire nation via the

103

2023 SCC OnLine SC 138

104

State of West Bengal v. Union of India, (1964) 1 SCR 317

105

Babulal Parate v. State of Bombay, (1960) 1 SCR 605

106

Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184

107

S.R. Bommai (supra)

Page 77 of 121

Parliament, as the issue leading to the reorganization affects the

nation as a whole. The Parliament would include the

representatives of Jammu & Kashmir.

vii. Lastly, upon a question of the Court, at the very inception, it

was emphasized that instructions were taken, and a statement was

made by the Solicitor General before the Court in unambiguous

terms that the status of the Union Territory of Jammu and Kashmir

would be restored to status of a State once the elections were held.

On a query as to when the elections would be held, it was stated

that the endeavours are being made to do so at the earliest and that

grassroot democracy have already been restored by the elections

held at the Panchayat levels. It was submitted that the Hon’ble

Home Minister on the floor of the House had already said that this

was a temporary measure, and it would again become a State.

B. The suspension of the proviso to Article 3 was permissible.

i. The proviso to Article 3 has been suspended each time

Article 356 is invoked. Every provision of the Constitution that

refers to any decision to be made by the Legislative Assembly is

suspended in this manner, notwithstanding whether that decision is

legislative or recommendatory in character. The Parliament then

substitutes the Assembly in all capacities.

Page 78 of 121

ii. The exercise of powers of the State Legislature by the

Parliament under Article 356 for the purpose of reorganizing the

State of Punjab in 1966 was upheld by the High Court of Delhi in

Manohar Lal v. Union of India

108

. This includes the takeover of

powers of the State Legislature to meet and express its views, as

contemplated by the proviso to Article 3. This was because the

Governor’s power to summon the Legislature was itself suspended.

iii. The views contemplated by the proviso to Article 3 can be

given by the Parliament itself without obviating the federal

structure of the Constitution. At times, reorganization of a State is

required to bring it out of the situation that necessitated the

imposition of President’s Rule in the first place. The principle that

the Indian Constitution is both, unitary and federal, must, thus, be

appreciated in this context.

Resolution of Constitutional Dilemma:

45. The task which confronts us is of analyzing the wide spectrum of

submissions to assess the constitutionality of the path adopted by the

respondents. The submissions advanced before us by both sides and

different counsels have been set forth hereinabove. In the conspectus of

the same, we have analyzed these submissions under the following broad

heads:

108

AIR 1970 Del 178

Page 79 of 121

1. The Constitutional Relationship between the Union and the State

of Jammu and Kashmir prior to the impugned actions.

A. The concept of internal sovereignty after the IoA.

46. The petitioners urge that Maharaja Hari Singh retained an

element of ‘internal sovereignty’ with himself, having signed the

IOA but not a Merger Agreement. To our mind, this question is no

longer res integra, having received earlier consideration by a

coordinate bench of this Court in Prem Nath Kaul,

109

where the

vires of the Jammu & Kashmir Big Landed Estate Abolition Act,

1950 was in question. The challenge before the Court was whether

Yuvraj Karan Singh had exceeded his powers under the Jammu &

Kashmir Constitution Act, 1939, in enacting the said law. The

petitioners therein, inter alia, pleaded that the Maharaja’s

sovereignty was considerably affected by the Instrument of

Accession, and, thus, he was no longer a sovereign ruler and could

not have passed on any sovereignty to the Yuvraj.

47. The argument did not find favor with the Court. It was noted

that with the Indian Independence Act, 1947, the suzerainty of His

Majesty over princely states lapsed, thereby restoring the

Maharaja’s status of an ‘absolute monarch’. Later, with the signing

of the IoA, it was opined that the Maharaja conceded to the

109

supra

Page 80 of 121

authorities mentioned in Clause 1 of the IoA, his right to exercise

certain functions subject to other terms of the Instrument. Clause 6

expressly recognized the continuance of the sovereignty of his

Highness in and over the State. It is in this context that in

paragraph 26 of the judgment, the Court was constrained to “reject

the argument that the execution of the Instrument of Accession

affected in any manner the legislative, executive and the judicial

powers in regard to the Government of the State when they vested

in the Ruler of the State.”

48. The matter did not rest at this as the Court observed that the

powers of Yuvraj Karan Singh (vested by the Maharaja on

20.06.1949) were not ‘substantially limited’ by his Proclamation

dated 26.11.1949, whereby he declared that the Constitution of

India would govern the constitutional relationship between the

State and the Union. Thus, the Proclamation did not alter the

Constitutional position established once the Maharaja had signed

the IoA.

49. Even Article 370(1) was opined to not affect the plenary

power of the Maharaja in the governance of the State, as these

powers had been recognized and provided by the Constitution of

the State itself. It is through the Constituent Assembly that the

State was free to choose its own form of Government.

50. The Coordinate Constitution Bench of this Court is thus

clear in its finding that the State did not lose all semblance of its

Page 81 of 121

internal sovereignty – which included deciding upon the form of

government of the State - upon signing the IoA. The distinguishing

feature, as compared to some of the other States, was that a slightly

different path was followed for the accession of the State of

Jammu & Kashmir by recognizing the Constituent Assembly to be

formed for the State. The route of assimilation of the State of

Jammu and Kashmir was through Article 370.

51. The Constitution of Jammu and Kashmir, which resulted

from the deliberations of the State Constituent Assembly, was thus

the repository of the sovereignty of the State of Jammu and

Kashmir.

B. Article 370 of the Constitution as a temporary provision.

52. The nature of Article 370 itself – whether temporary or

permanent – is the key to assessing the validity of the impugned

actions. We propose to conduct this enquiry in three ways. First, by

examining the historical background that led to the introduction of

the provision in the Constitution. Second, by looking at the

structure of the provision itself, and third, by reflecting on how the

provision has worked out in the context of State-Union relations.

53. Certain aspects of the history that we have enumerated in the

preceding sections guide us in this endeavour. Jammu and Kashmir

had not acceded to India when the latter attained independence.

Whereas Maharaja Hari Singh had entered into a standstill

Page 82 of 121

agreement with Pakistan, India had not opted to do the same. It is

in this context that the Maharaja addressed a letter to India,

narrating the precarious situation of the State due to infiltration by

armed men. The Maharaja sought assistance, which India made

conditional upon him signing the IoA.

54. The Maharaja finally acceded through the IoA on

26.10.1947. On 05.03.1948, he proclaimed the establishment of a

Constituent Assembly for devising a Constitution for the State.

55. On turning the pages of the Constituent Assembly Debates,

which were read and re-read before the Court at length, Shri N.

Gopalaswami Ayyangar’s statements allude to this historical

context. When questioned by Maulana Hasrat Mohani about the

reasons for special treatment of the State, Ayyangar replied that it

was not yet ripe for the manner of integration which was provided

in the Constitution for other States. This was on account of ‘special

conditions of Kashmir’. Ayyangar went on to express his hope that

‘in due course even Jammu and Kashmir will become ripe for the

same sort of integration’. Later, he detailed the ongoing conflict

and a part of the State being under control of rebels as reasons for

this ‘special treatment’.

56. Spelling out the way forward, Ayyangar reflected that the

Constitution of the State would decide on the future of relations

with the Union. It is in this context that he stated: “Till a

Constituent Assembly comes into being, only an interim

Page 83 of 121

arrangement is possible and not an arrangement which could at

once be brought into line with the arrangement that exists in the

case of other States.”

57. This sentiment was echoed by Shri Sheikh Abdullah in his

address to the State Constituent Assembly. He recounted the grave

peril that the State was in due to the invasion of armed tribesmen

and the sacrifices made by Kashmiris to save their State from

being overrun. He noted that these considerations led the Maharaja

to take assistance from India by signing the IOA. He also gave

other reasons in support of acceding to India, which merit

reiteration:

“The Hon’ble Sheikh Mohammad Abdullah:-

…

As a realist I am conscious that nothing is all black or all

white, and there many facts to each of the proposition before

us, I shall first speak on the merits and demerits of the

State’s accession to India. In the final analysis, as I

understand it, it is the kinship of ideals which determines the

strength of ties between two States. The national Congress

has consistently supported the cause of the States peoples’

freedom. The autocratic rule of the Princes has been away

with and representative Governments have been entrusted

with the administration. Steps towards democratization have

been taken and these have raised the people’s standard of

living, brought about much needed social reconstruction,

and, above all built up their very independence of spirit.

Naturally, if we accede to India there is no danger of a

revival of feudalism and autocracy. Moreover, during last

four years, the Government of India has never tried to

Page 84 of 121

interfere in our internal autonomy. This experience has

strengthened our confidence in them as a democratic State.

The real character of a State is revealed in its constitution.

The Indian Constitution has set before the country the goal

of secular democracy based upon justice, freedom and

equality for all without distinction. This is bedrock of

modern democracy. This should meet the argument that the

Muslims of Kashmir cannot have security in India, where

the large majority of the population of Hindus. Any

unnatural cleavage between religious groups is the legacy of

imperialism, and no modern State can afford to encourage

artificial divisions if it is to achieve progress and prosperity.

The Indian Constitution has amply and finally repudiated

the concept of a religious state, which is a throwback to

medievalism, by guaranteeing the equality of right of all

citizens in respective of their religion colour, caste and

class.

The national movement in our state naturally gravitates

towards these Principles of secular democracy. The people

here will never accept a principle, which seeks to favour the

interests of one religion or social group against another.

This affinity in political principle as well as in past

association, and our common path of suffering in the cause

of freedom, must be weighed properly while deciding the

future of the State.

We are also intimately concerned with the economic well-

being of the people of this State. As I said before while

referring to constitution building, political ideals are often

meaningless unless linked with economic plans. As a State,

we are mainly with agriculture and trade. As you know, and

as I had detailed before we have been able to put through

our “land to the tiller” legislation and make of it a practical

success. Land and all it means is an inestimable blessing to

our peasants who have dragged along in servitude to the

landlord and his allies for centuries without number. We

have been able under present conditions to carry these

Page 85 of 121

reforms through; are we sure that in alliance with landlord

ridden Pakistan, with so many feudal privileges in act, that

this economic reforms of our will be tolerated? We have

already heard that news of our Land Reforms has traveled

to the peasants of the enemy occupied area of our State who

vainly deserve alike status, and like benefits. In the second

place, our economic welfare is bound of with our arts and

crafts. The traditional markets for these precious goods, for

which we are justly known all over the world, have been

centered in India. The volume of our trade, inspite of the

dislocation of the last few years, shows this, industry is also

highly important to us. Potentially we are rich in minerals,

and in the raw materials of industry; we need help to

develop our resources. India, being more highly

industrialized than Pakistan, can give us equipments,

technical services and materials. She can help us too in

marketing. Many goods also which it would not be practical

for us to produce here for instance, sugar, cotton, cloth and

otherwise essential commodities can be got by us in large

quantities from India. It is around the sufficient supply of

such basic necessities that the standard of living of the man-

in-the-street depends.

…

The most powerful argument which can be advanced in her

favour is that Pakistan is a Muslim State, and a big majority

of our people being Muslim the State must accede to

Pakistan. This claim of being a Muslim state is of course

only a camouflage. It is a screen to dupe the common man,

so that he may not see clearly that Pakistan is a feudal State

in which a clique is trying by these methods to maintain

itself in power. In addition to this, the appeal to religion

constitutes a sentimental and a wrong approach to the

question. Sentiment has its own place in life, but often it

leads to irrational action. Some argue, supposedly natural

corollary to this that our acceding to Pakistan our

annihilation or survival depends. Facts have disproved this;

Page 86 of 121

right thinking man would point out that Pakistan is not an

organic unity of all the Muslims in this subcontinent. It has

on the contrary, caused dispersion of the Indian Muslims for

whose benefit it was claimed to have been created. There

are two Pakistan at least a thousand miles a port from each

other. The total population of western Pakistan which is

contiguous to our State is hardly 25 million, while the total

number of Muslims resident in India is as many as 40

million. As one Muslim is as good as another, the Kashmiri

Muslim if they are worried by such considerations should

choose the 40 million living in India.

Looking at the matter too from a more modern political

angle, religious affinities alone do not and should not

normally determine the political alliances of State. We do

not find a christan bloc, a Buddhist block or even a Muslim

block, about which there is so much talk now-a-days in

Pakistan. These days economic interests and a community of

political ideals more appropriately influence the policies of

state.

We have another important factor to consider, if the State

decides to make this the predominant consideration. What

will be the fate of the one million of non-Muslims now in our

State? As things stand at present, there is no place for them

in Pakistan. Any solution which will result in the

displacement or the total subjugation of such large number

of people will not be just or fair, and it is the responsibility

of this House to ensure that the decision that it takes on

accession does not militate against the interests of any

religious group.

As regards the economic advantages, I have mentioned

before the road and river links with Pakistan. In the last

analysis, we must however remember that we are not that

concerned only with the movement of the people but also

with the movement of goods and the linking up of markets.

In Pakistan there is a chronic death of markets for our

Page 87 of 121

products. Neither, for that matter, can she help us with our

industrialization, being herself industrially backward.”

58. The Instruments of Accession signed by the various erstwhile

princely states were to be reflected in the Constitution of India itself.

However, insofar as Jammu and Kashmir State was concerned, Article

370 was a special procedure contemplated due to the ‘special conditions’

in the State and hope was expressed that in times to come, ‘Jammu &

Kashmir will become ripe for the same sort of integration as had taken

place in the other States’.

59. Thus, the intent was clear: of complete integration but taking place

over a period of time. Article 370 was envisaged as an interim system till

the State’s Constituent Assembly came into being and for a limited

period, on account of the special circumstances of the State.

60. If we were to turn to the wording of Article 370, we will find that it

reflects this intent. The provision was placed in Part XXI, which was

titled ‘Temporary and Transitional Provisions’ at the time. The marginal

note to the provision was titled ‘Temporary Provisions with Respect to

the State of Jammu and Kashmir’. Although the law is settled that a

marginal note to a provision cannot dictate its meaning, the note can

certainly be a guide to the provision’s drift and purpose. The meaning as

a matter of course would have to be derived from a reading of the

provision as a whole.

Page 88 of 121

61. Article 370 opens with a non obstante clause, which implies that

the contents of the provision remain unaffected by the other provisions of

the Constitution. Clause (1)(a) specified that Article 238 shall not apply

to the State. As a consequence, Part VI did not apply. Clause (1)(b)

enabled the Parliament to make laws for the State predicated on a

specification made by the President of the subjects comprising in the

Union and Concurrent Lists. Sub-clause (b)(i) provided for consultation

whereas (b)(ii) provided for concurrence by the State Government.

62. Article 370(1)(c) states that Articles 1 and 370 shall apply in

relation to the State. The necessary consequence of the application of

Article 1 is that Jammu and Kashmir became an integral part of ‘India

that is Bharat’.

63. Clause (1)(d) speaks of extending ‘other provisions’ of the

Constitution to the State, subject to exceptions and modifications

specified by the President. The first proviso stipulates that for matters

specified in the IOA, consultation with the State Government is required,

whereas for other matters concurrence would be necessary. Article

370(2) specifies the procedure when the Constituent Assembly of the

State is in existence, providing that concurrence provided under Article

370(b)(ii) or the second proviso to Article 370(1)(d) shall be placed

before such Assembly for further decision. Finally, Article 370(3)

contained a procedure to bring the arrangement to an end by way of

public notification. However, a recommendation by the Constituent

Assembly was stated to be necessary in this regard.

Page 89 of 121

64. Article 370 thus contemplated the mechanism for extending the

Parliament’s law-making power and the various provisions of the

Constitution of India to the State, which show that Article 370 was meant

to gradually bring the State bring on par with other States in this process

of phased integration. We may note that this is evinced by the series of

Constitutional Orders passed by the President in consultation or

concurrence with the Government of the State, from time to time. Once

the State was firmly a part of India under Article 1, only further

integration remained to be undertaken over a period of time – by

extending both the Parliament’s lawmaking powers to the State and

various provisions of the Constitution of India. This leaves no manner of

doubt that Article 370 was a temporary provision, meant to serve a

specific function.

65. At this stage, we reject Mr. Dinesh Dwivedi, Learned Senior

Counsel’s submission that the provision was temporary only until the

State Constituent Assembly was dissolved. Other than the historical and

textual reading alluded to above, this issue has been decided by a

coordinate Bench of this Court in Sampat Prakash.

110

There, the

petitioner challenged COs 59 and 69 as ultra vires the power of the

President under Article 370(1). The argument raised was that Article 370

was temporary and ceased to be operational after the State Constituent

Assembly dissolved itself. The Court held otherwise, taking the view that

the ‘special conditions’ necessitating the provision continued to exist, and

110

(supra)

Page 90 of 121

the Constituent Assembly of the State had also not recommended that the

provision cease to exist.

66. Nevertheless, we may note that the question of whether the power

under 370(3) could be exercised after the dissolution of the State

Constituent Assembly was not considered by the Court therein. That is a

question that we are called to decide upon presently.

C. The effect of Article 370(3)

67. Our discussion above has dealt with two aspects. First, the

recognition of Jammu and Kashmir’s internal sovereignty through the

mechanism of Article 370. Specifically, this was through Article 370(2),

which contemplated the Constituent Assembly of the State. Second, the

temporary nature of Article 370 as such, in light of historical context, the

text of the provision, and the constitutional practice surrounding it.

68. Once these aspects are read with Article 370(3), the corollary is

that there was a mechanism to bring the whole arrangement to an end.

The effect of the power under Article 370(3), once exercised, would be

that the Article ‘shall cease to be operative’. In other words, the

mechanism was meant to de-recognize the State’s internal sovereignty.

Thus, the exercise of the power under Article 370(3) meant that for the

purposes of the Constitution of India, only the Constitution of India

would apply to Jammu & Kashmir and not any other Constitution i.e. the

Constitution of Jammu & Kashmir. Since the Constitution of India is a

complete code, providing for all aspects of lawmaking and governance,

Page 91 of 121

there would be no need for the Constitution of Jammu and Kashmir to

apply to the State, and it would be replaced by the Constitution of India.

2 Article 370(3) after the dissolution of the Constituent Assembly of

the State.

A. Article 370(3) continues to operate.

69. An important question left to be determined is whether the power

under Article 370(3) could be exercised after the Constituent Assembly

of the State had dissolved itself.

70. We have already noted the temporary nature of Article 370, as

apparent from the provision’s placement in the Constitution, its

historical context, and its phraseology. Turning specifically to Article

370(3), which contains the procedure to bring the arrangement to an end,

we may note that it vests power into two institutions: The President and

the Jammu and Kashmir Constituent Assembly. The former is

permanent, whereas the later is ephemeral by its very nature – meant for

a specific purpose and intended to be extinguished after the purpose is

achieved. The purpose of the Constituent Assembly was to draft a

Constitution for the governance of the State. On the other hand, the

purpose of Article 370, as noted above, was to slowly bring Jammu and

Kashmir on par with other States in India. It can hardly be contended

that the second (and in some ways, larger) purpose would be affected by

the fulfilment of the first. The second purpose remained an ongoing

exercise, long after the State Constituent Assembly was dissolved. Thus,

Page 92 of 121

the conditionality in Article 370(3), of the requirement of a

recommendation from the Constituent Assembly, cannot be read in a

manner as to make the reference to the larger intention of the provision

redundant.

71. In a nutshell, if the provision was meant to be temporary (as

established above), Article 370(3) must be construed to continue to be in

subsistence even after the expiry of the conditionality, i.e. the State’s

Constituent Assembly.

B. The President can exercise their power under sub-clause (3)

without a recommendation from the Jammu and Kashmir

Constituent Assembly.

72. The next question is to determine what process is to be followed

for the President to exercise their power under Article 370(3).

73. As discussed above, the power under Article 370(3) vests with two

institutions – the President, who has a permanent power and the

Constituent Assembly of the State, which has a temporary power. From

the above analysis, if Article 370 can be abrogated even after the

Constituent Assembly of the State has been dissolved, what follows is

that the power of the Constituent Assembly of the State to make a

recommendation cannot be read as a condition precedent to the exercise

of the power of the President to issue a declaration under Article 370(3).

Page 93 of 121

74. The Petitioners argue that the recommendation of the Constituent

Assembly of the State is necessary for the President to exercise their

power, or in other words, that the power cannot be exercised unilaterally

in the absence of the Constituent Assembly of the State. I am unable to

agree with this view. When the Constituent Assembly ceased to exist,

only the power of the Constituent Assembly to make a recommendation

ceased to exist, that is, the proviso to Article 370 became otiose. The

main provision, which is the President’s power to issue a declaration

continued to exist. Adopting the Petitioners’ view would mean that

Article 370, which was meant to be temporary, would no longer be

temporary after the Constituent Assembly ceases to exist. This is

incongruent with the purpose of Article 370.

75. On the other hand, the power of the President to unilaterally de-

operationalize Article 370 once the Constituent Assembly of the State

ceases to exist accords with the vision of the Constituent Assembly of

India and the purpose of Article 370 – to ensure full constitutional

integration as and when the circumstances permitted the same. An

evaluation of various Presidential Orders issued under Article 370(1)

demonstrate that very little remained in terms of making constitutional

integration complete at the time of issuance of C.O. 273.

76. Even prior to the Constituent Assembly of the State, the President

had the power to de-operationalize Article 370. For example, Article 371

Page 94 of 121

of the Constitution, prior to being amended in 1956,

111

gave the President

general control over Part B States for a period of ten years, extendable by

the Parliament.

77. Recognizing the power of the President, the word

‘recommendation’ is used in Article 370(3), which implies a very narrow

and minimal standard of agreement, especially when contrasted with the

other conditionalities used in Article 370 which provide for

‘concurrence’ and ‘consultation’ with the Government of the State. A

recommendation is advisory.

112

Thus, the conditionality attached to the

exercise of the President’s power was so negligible that its absence

cannot efface the power of the President itself.

78. Mr. Sibal submits that even the Union was aware that the

recommendation of the Constituent Assembly was necessary, and thereby

proceeded to substitute it for another body using the route of Article 367.

However, this need not have been done, since the President had the

power to exercise the power under Article 370(3) unilaterally.

3. The issuance of CO 272.

A. The power under Article 370(1)(d) read with Article 367 was

improperly exercised.

79. On 5 August 2019, the President issued C.O. 272 under Article

370(1)(d) applying the entire Constitution of India to the State, but

111

The Constitution (Seventh Amendment) Act, 1956.

112

Black’s Law Dictionary, (VI Edition, 1990).

Page 95 of 121

modified Article 367 by adding Article 367(4). Article 367(4), after C.O.

272, reads as follows:

“(4) For the purposes of this Constitution as it applies in

relation to the State of Jammu and Kashmir –

(a) references to this Constitution or to the provisions

thereof shall be construed as references to the Constitution

or the provisions thereof as applied in relation to the said

State;

(b) reference to the person for the time being recognized by

the President on the recommendation of the Legislative

Assembly of the State as the Sadar-i-Riyasat of Jammu and

Kashmir, acting on the advice of the Council of Ministers of

the State for the time being in office, shall be construed as

references to the Governor of Jammu and Kashmir;

construed as including references to the Governor of Jammu

and Kashmir acting on the advice of his Council of

Ministers; and

(d) in proviso to clause (3) of article 370 of this

Constitution, the expression “Constituent Assembly of the

State referred to in clause (2)” shall read “Legislative

Assembly of the State””

Page 96 of 121

80. In effect, C.O. 272 envisaged that the recommendation under

Article 370(3) could be provided by the Legislative Assembly of the

State. C.O. 272 has been impugned on the basis that Article 370(1)(d)

cannot be used to amend Article 370 and that the power under Article

370(1)(d) can only be exercised with concurrence of the Government of

the State.

81. The Petitioners contend that the addition of Article 367(4)(d) r/w

Article 370(1)(d) amounts to an amendment of Article 370(3), which

exceeds the power of the President to make modifications under Article

370(1)(d), and is not in accordance with the procedure under the

Constitution.

82. Mr. Mehta submits that there was no necessity for the Union to

modify Article 370(3) using Article 367(4)(d). However, as Mr. Sibal

rightly submits, the Union’s actions must be tested for what they are.

Article 370(1)(d) does not allow modifications to Article 370

83. The power under Article 370(1)(d) can only be exercised to make

modifications to terms of the Constitution other than Article 370 and

Article 1. This can be gathered from a combined reading of Article

370(1)(c) and (d). Article 370(1)(c) lays down that Article 1 and Article

370 shall apply to the state of Jammu and Kashmir. Article 370(1)(d)

permits the President to apply other provisions of the Constitution, even

with modifications. The exceptions to the provisions contemplated under

Article 370(1)(d), that is Article 1 and Article 370, were also noted in

Page 97 of 121

Puranlal Lakhanpal v Union of India.

113

The route to modify Article 370

is through an order under Article 370(3), which gives the power to the

President to de-operationalize Article 370 or to make it operational

subject to exceptions and modifications.

84. The same approach was followed even in the past to modify

Article 370. For example, Article 370 of the Constitution of India, as

originally enacted referred to “Maharaja” in the Explanation to Para (ii)

of sub-clause (b) of Article 370. The reference to “Maharaja” was

replaced by Sadar-i-Riyasat by C.O. 44. This was done under Article

370(3) on the recommendation of the Constituent Assembly which was

in subsistence at the time. The other orders referenced by the

Respondents, such as C.O. 48 and C.O. 74 (which replaced Sadar-i-

Riyasat with Governor), were merely clarificatory and did not make any

substantive amendments to Article 370.

The direct effect of C.O. 272 is an amendment to Article 370(3)

85. Article 367(4) has been purportedly added under the President’s

power to make modifications under Article 370(1)(d) when applying

provisions of the Constitution of India. First, Article 367(4) is an

interpretation clause whose purpose is to define and give meaning to

terms. If we allow Article 367(4) to be used to amend provisions of the

Constitution, circumventing the procedure under Article 368 of the

113

(1955) 2 SCR 1101

Page 98 of 121

Constitution of India, or the procedure contemplated under other

provisions, the effect would be disastrous.

86. Second, although the phrase “modifications” has not been defined

in the Constitution, there are limits to every exercise of power. In this

case, the modification is an addition that replaces one authority with

another, but also changes the very core concept and nature of powers.

The Constituent Assembly, is a constituent body and therefore,

sovereign. A reference to a sovereign body cannot be construed as

reference to Legislative Assembly. Dr. BR Ambedkar clearly underlined

the importance of the constituent assembly being a non-partisan body as

opposed to an elected legislative assembly where members would try to

push a partisan agenda for the party. This has been captured in

Jaganmohan Reddy J’s opinion in Kesavananda Bharati case.

114

87. Thus, an exception or modification cannot make a radical

alteration that effaces the fundamentals of the provision, as the

substitution in C.O. 272 seeks to do.

88. Similarly, in Delhi Laws Act, In Re,

115

the Court was examining

the validity of Section 7 of the Delhi Laws Act, 1912, which provided as

follows: “The Provincial Government may, by notification in the Official

Gazette, extend with such restrictions and modifications as it thinks fit to

the Province of Delhi or any part thereof, any enactment which is in

114

(supra).

115

(supra).

Page 99 of 121

force in any part of British India at the date of such notification.”

(Emphasis supplied). Specifically, Seven Judges of this Court analysed

the phrase “restrictions and modifications” to not encompass unfettered

powers for the statutory authority.

89. In response, the Union has relied on the observations in Puranlal

Lakhanpal v. President of India,

116

in which this Court the President’s

power to make modifications ought to be considered in its “widest

possible amplitude”. However, as submitted by the Petitioners, these

observations are obiter. In this case, the Court was considering the

constitutionality of a provision in C.O. 48, where the President, in

exercise of his powers under Article 370(1)(d), had modified Article

81(1) as it applied to J&K. The modification provided that “the

representatives of the State in the House of the People shall be

appointed by the President on the recommendation of the legislature of

the State.” Specifically, the Court dealt with the question as to whether

this alteration constituted a ‘radical modification’ of Article 81 as it

applied to Jammu & Kashmir, and whether the same was within the

powers of the President under Article 370(1)(d). In Paragraph 3 of the

said judgment, this Court noted that there had been no radical alteration

of Article 81 by the modification effected in C.O. 48. This was because

the President only had the power to nominate such persons who had

been recommended by the State Legislature, which was elected on adult

suffrage. The only way the Legislature could make a recommendation

116

(supra)

Page 100 of 121

for this purpose was by voting. Thus, the effect was that six seats to the

House of the People would be filled by indirect election. Since the

element of election still remained (although indirect), it could not be said

that the President had exceeded his powers under Article 370(1)(d).

90. Although the Court found in Paragraph 4 that the power was of the

widest possible amplitude, these comments were made after the Court

had already decided the question of whether C.O. 48 constituted a radical

alteration of Article 81 and were not relevant for determination of the lis.

91. Thus, C.O. 272, to the extent that it “modifies” Article 367 by

introducing Article 367(4) is invalid.

B. Concurrence with the Government of the State was not necessary

to apply all the provisions of the Constitution of India to the State.

92. As discussed above, CO 272 applied all the provisions of the

Constitution of India to the State. Article 370(1)(d) requires:

i. Consultation with the Government of the State for applying those

provisions which are declared by the President as corresponding to

matters in the Instrument of Accession

ii. Concurrence with the Government of the State for applying any

other provisions

In this case, the Governor of the State had dissolved the Legislative

Assembly of the State, there were no Council of Ministers, and the

Page 101 of 121

President had assumed to himself all functions of the Government of the

State under the 2018 Proclamation, as extended.

93. The Petitioners have contended that this is invalid, as Article

367(4)(c) of the Constitution of India read with Section 35 of the

Constitution of the State required the Governor to act on the aid and

advice of the Council of Ministers of the State. At the outset,

Constitutional Orders have been issued in the past during President’s

Rule. In 1989, the State of Jammu and Kashmir was under Governor’s

Rule, and C.O. 136

117

was issued. The Solicitor General also drew our

attention to other Constitutional Orders 151,

118

154,

119

160

120

and 162

121

issued during the President’s Rule, which extended the period of

President’s Rule from three years to six years.

94. Notwithstanding these illustrations, I find that the concurrence of

the Union Government can substitute the concurrence of the Government

of the State in this case, since, as discussed above, the President has

unilateral power to notify that Article 370 ceases to exist under Article

370(3), which, in effect, amounts to applying all provisions of the

Constitution under Article 370(1)(d). Therefore, there was no

requirement to obtain concurrence of the Government of the State in

applying all provisions of the Constitution under C.O. 272.

117

The Constitution (Application to Jammu and Kashmir) Amendment Order, 1989.

118

The Constitution (Application to Jammu and Kashmir) Amendment Order, 1993.

119

The Constitution (Application to Jammu and Kashmir) Amendment Order, 1994.

120

The Constitution (Application to Jammu and Kashmir) Amendment Order, 1995.

121

The Constitution (Application to Jammu and Kashmir) Amendment Order, 1996.

Page 102 of 121

4. Whether the exercise of power under Article 356 was permissible

while issuing COs 272 and 273.

A. Article 356 can be imposed once the Legislative Assembly had

been dissolved:

95. The imposition of the Governor’s rule under Section 92 of the

Jammu & Kashmir Constitution on 20.6.2018 was a direct result of the

failure of the constitutional machinery of the State. This is, however, not

a matter of challenge in the present proceedings. On the Legislative

Assembly being dissolved during the Governor’s rule on 21.11.2018, the

status quo position continued as prior to it, and on 28.11.2018, the

Governor submitted a report to the President regarding the imposition of

emergency under Article 356. The President’s rule was, thus, imposed.

The imposition of the President’s rule took place as Section 92 of the

Jammu & Kashmir Constitution limited the Governor’s rule to six

months without any scope to extend it, and there is nothing on record to

show that any political party was willing to stake claim to form the

Government during this period. There was a belated challenge to the

imposition of the Central rule.

96. The consequence of the imposition of the President’s rule was that

the President assumed the power of the State Government under the

Indian Constitution. This imposition was predicated on the failure of the

constitutional machinery, which really took place prior to the

Governor’s rule.

Page 103 of 121

97. The petitioners strongly relied upon the observations in Thiru K.N.

Rajgopal v. Thiru M. Karunanidhi & Others

122

to canvas that

dissolution of the Assembly does not amount to failure of constitutional

machinery within Article 356. The scenario is slightly different in the

present case as that case did not contemplate the imposition of the

President’s rule subsequent to the Governor’s rule. In the instant case,

the President’s rule was predicated on the failure of the constitutional

machinery, which took place prior to the Governor’s rule and formed the

basis for the Governor’s rule. The imposition was not solely based on

the dissolution of the Legislative Assembly.

B. Article 356 permits the President to make irreversible changes:

98. The petitioners relied upon the observations of Sawant, J. in S.R.

Bommai

123

case to harmonize clauses (1) & (3) of Article 356 to opine

that the President’s powers are meant to be checked by the Parliament

and this check would be rendered meaningless if the President took an

irreversible measure. One such irreversible measure was stated to be the

dissolution of the Assembly. It was, however, held in S.R.Bommai,

124

that dissolution is permitted if the proclamation had been approved by

the Parliament prior to such irreversible action, i.e., in a sense, the will

of the people as reflected in the Parliament had given its imprimatur.

The sequitur to the aforesaid view would be that the President had the

122

(1972) 4 SCC 733

123

(supra)

124

(supra)

Page 104 of 121

power to make irreversible changes. The settled principle is that the

President had the power to make irreversible changes if the proclamation

under Article 356 had received prior approval from both Houses of

Parliament. If we turn to the present case, the proclamation received

approval on 28.12.2018 by the Lok Sabha and on 03.01.2019 by the

Rajya Sabha. Thus, prior approval existed before the promulgation of

COs 272 and 273. Secondly, since the proclamation of an emergency is

justiciable and if the same is declared to be invalid by the Court, then,

notwithstanding its approval by the Parliament, the status quo ante can

be restored by the Court at its discretion. In other words, a dissolved

Legislative Assembly and the Ministry can be revived. At the same time,

while restoring the status quo ante, the Court can validate the President’s

action taken till that date and grant other necessary reliefs.

C. The President reserves both legislative and non-legislative powers

after the proclamation of emergency:

99. To understand the powers conferred on the President after the

emergency proclamation, we need to closely appreciate the statutory

provision, i.e., Article 356 enumerating the powers exercisable by the

President. It is to be borne in mind that the imposition of emergency

highlights an exceptional situation. The inclusion of emergency

provisions in the Constitution, starting with the procedure of imposing

emergency to the powers of the President under clause (1) of Article

356, are all measures catering to an exigency, albeit aimed towards

restoring the constitutional equilibrium of the State.

Page 105 of 121

100. The constitutional scheme permits the Constitution to adapt itself

to a unitary structure in exceptional situations, with the powers of the

Union Parliament taking precedence over the State Legislature. Article

355 casts an additional burden on the Union to protect the State from

any form of external aggression and internal disturbance whilst

mandating the Union to oversee that every State is functioning in

consonance with the Constitution. During Constituent Assembly

debates, Dr. B.R.Ambedkar aptly distinguished the nature of the

Constitution of India from the federalism in the United States and

succinctly defined how the Constitution of India is equipped to adapt

itself to a federal or unitary structure of governance based on the

situation at hand. The relevant portion is extracted below:

“All federal systems including the American are placed in a tight

mould of federalism. No matter what the circumstances, it cannot

change its form and shape. It can never be unitary. On the other hand the

Draft Constitution can be both unitary as well as federal according to the

requirements of time and circumstances. In normal times, it is framed to

work as a federal system. But in times of war it is so designed as to

make it work as though it was a unitary system.”

125

101. Sub-clause (a) of Article 356(1) permits the President to assume

“all or any” of the functions of the State Government, powers

exercisable by the Governor or any other authority in the State.

125

Constituent Assembly Debates, Vol. VII, Pg 34

Page 106 of 121

However, the sub-clause excludes the President from assuming powers

of the State Legislature. In the present case scenario, the State

Legislature was already dissolved before the imposition of emergency

under Article 356.

102. Sub-clause (b) of Article 356(1) allows the Union Parliament to

exercise the powers of the State Legislature under a proclamation made

by the President. Evidently, sub-clause (b) is of a wider amplitude since

the term “powers of the Legislature of the State” includes all powers

exercisable by the State Legislature, and the same would encompass

legislative and non-legislative functions. When the provision explicitly

allows the Union Parliament to exercise all powers of the State

Legislature without carving out an exception, it would be incorrect to

read the provision implying any restrictions. Though Article 357 is in

continuance of Article 356, the former does not stipulate any bar or

restriction on the Union Parliament or President to exercise non-

legislative powers of the State Legislature.

103. Article 357 of the Constitution is another unitary feature of our

Constitution since the prime and focal power of the State Legislature,

i.e., the power to make laws, is transferred to the Union Parliament

during an emergency and in the absence of a State Legislature. The

Union Parliament further derives competency from Clause (1) of Article

357 to confer on the President the power of the State Legislature to make

laws. These provisions illustrate that in the absence of a State

Legislature during an emergency, the power of governance and daily

Page 107 of 121

administrative duties cannot be kept in abeyance and must be transferred

to any other competent authority till the resumption or election of a State

Legislature. It is imperative for the President or the Union Parliament to

take up the powers of the State Legislature; otherwise, a State without

any administrative and governmental oversight is nothing short of

anarchy. When the President is permitted to take over the legislative

functions of the State Legislature under Article 357 and has received

judicial imprimatur even to take extreme irreversible steps, such as

dissolving the State Legislature, albeit after both Houses of Parliament

approve the proclamation, there is no reason to curtail the President from

exercising non-legislative powers of the State Legislature.

104. It is only in exceptional situations that the Constitution

contemplates the exercise of such unitary powers. Constitutional and

judicial safeguards have been imposed to ensure that the exercise of

powers during an emergency is not unfettered and absolute. The

imposition of an emergency is subject to judicial review as per S.R.

Bommai

126

and Rameshwar Prasad v. Union of India,

127

and the Courts

can assess the material that formed the basis of the advice to the

President to impose an emergency. Furthermore, every proclamation

must be ratified and approved by both Houses of Parliament under

Article 356(3) within two months from the date of the proclamation.

126

(supra)

127

(2006) 2 SCC 1

Page 108 of 121

5. The extent of powers under Article 3 and the constitutionality of

the Reorganization Act.

A. The Parliament's authority to alter or extinguish a State under

Article 3.

105. We may note that CO 272 had already been issued by the President

at the time the Jammu and Kashmir Reorganization Bill, 2019 was taken

up for discussion by the Parliament. This implied that all provisions of

the Constitution of India were applicable to the State of Jammu and

Kashmir. Article 3, as applicable to the rest of the country, was thus also

applicable to Jammu and Kashmir. The Reorganization Act needs to be

considered in this conspectus.

106. If we examine the powers of the Parliament under Article 3, it

provides that Parliament may by law inter alia form new States, diminish

the area of any State, and alter the boundaries or names of existing

States. The Explanation I provides that in clauses (a) to (e) of Article 3,

a ‘State’ includes ‘Union Territory’. This implies that the power of the

Parliament under Article 3(a), to make a law or form a new State or alter

the boundary of a State includes the power to make law to form a new

Union Territory. Explanation II to the provision notes that the power

under clause (a) implies that the Parliament can form a Union Territory

by uniting parts of any State or Union Territory to any other State or

Union Territory.

Page 109 of 121

107. The question before us is whether Article 3 contemplates the

power to convert a State into a Union Territory, thereby abolishing its

character as a State. It would be pertinent to refer to this Court’s

judgment in the State of W.B. v. Union of India,

128

where it was noted

that it would be incorrect to presume that absolute sovereignty remained

vested in the States. The Court drew this conclusion from the framework

of the Constitution: noting that there was no concept of dual (State and

national) citizenship in India, there were no independent Constitutions of

States, and pertinently, Article 3 gave Parliament wide powers to alter

the boundaries of States. States themselves had no constitutional

guarantee against the Parliament’s exercise of this power. The power of

States extended merely to expressing their opinions on the same.

108. The position that States have no independent sovereignty was also

reiterated by this Court in Babulal Parate v. State of Bombay,

129

where

the Court was again persuaded to reach this finding by looking at the

nature and extent of Article 3 itself. Another factor that weighed with the

Court here was that the Parliament was enabled to exercise this power

simply by making law, it was thus not even necessary to invoke the

procedure of constitutional amendments.

109. We agree with these findings, as under the Constitutional setup,

States have no independent or standalone sovereignty. They derive their

128

(1964) 1 SCR

129

(1960) 1 SCR 605

Page 110 of 121

existence from the Constitution, which at the same time gives Parliament

the power to vary or alter the boundaries of the State. Since the

petitioners concede that the power under Article 3 extends to carving out

a Union Territory from a State, the Respondents claim that this power

must also extend to converting the State into a Union Territory in toto.

The Petitioners contended that such a move would be contrary to the

federal principle, which guarantees a two-tier democracy and continuing

statehood under the Indian constitution. In response, the Solicitor-

General contended that the federal structure is not disturbed by

converting Jammu, Kashmir, and Ladakh into a Union Territory, as

Article 239A (which is an entrenched part of the federal scheme) would

apply to the newly formed Union Territories. However, at present, we

need not examine this aspect in greater depth as the Solicitor-General

assured this Court of the Union’s commitment made on the floor of the

House that the Statehood of Jammu and Kashmir would be restored in

the near future upon elections being held.

B. Suspension of the first proviso to Article 3 was permissible during

President's rule:

110. The second proviso to Article 3, as was applicable to the erstwhile

State, was not in force after the issuance of CO 272 on 5.8.2019. The

President was liable to refer the Bill introduced in 2019 to the State

Legislature of the erstwhile Jammu & Kashmir to express their “views”

in compliance with the first proviso to Article 3. However, during the

operation of the President’s Rule, which I have found to be valid, the

functions of the State Legislature were being performed by the

Page 111 of 121

Parliament. Therefore, it was not possible to take the views of the State

Legislature. We may refer to the judgment in Manohar Lal

130

case on

the legal proposition laid down. If we turn to the observations of Justice

H.R. Khanna (as he then was) of the Delhi High Court, it was opined

that the exercise of power of the State Legislature under Article 3 by the

Parliament, in view of Article 356 being imposed, was permissible for

purposes of reorganizing the State of Punjab in 1956. The need to

consult the views of the concerned State Legislature was dispensed with

in absence of a duly constituted State Legislature.

111. In conclusion, Sections 3 and 4 of the Reorganization Act, which

was the effect of the exercise of power under Article 3 of the

Constitution of India, is valid.

CONCLUSION:

112. On the basis of the analysis, I record the conclusions as follows:

a. In light of this Court’s prior finding in Prem Nath Kaul, the State

of Jammu and Kashmir retained an element of internal sovereignty

despite Maharaja Hari Singh signing the IoA with the Dominion. Article

370 of the Constitution recognized this internal sovereignty by

recognizing the Constituent Assembly of the State;

130

(supra)

Page 112 of 121

b. 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;

c. 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;

d. 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;

e. The power of the President under Article 370(3) was unaffected 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;

f. 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;

g. 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

modifications under Article 370(1)(d) cannot be used to amend Article

370 and Article 367, which is an interpretation clause, cannot be used to

Page 113 of 121

alter the character of a provision. Therefore, Paragraph 2 of C.O. 272,

which amends Article 367(4) is ultra vires Article 370;

h. 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;

i. 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;

j. Once the Presidential proclamation has been approved by both

Houses of Parliament, so as to reflect the will of the people, the

President has the power under Article 356 to make irreversible changes,

including the dissolution of the State Assembly;

k. 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

Page 114 of 121

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.

l. 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;

m. It is imperative to ascertain the ‘views’ of the State Legislature

under the first proviso to Article 3 if the proposed Bill affects 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 Legislature. It follows that Section 3 of

the Reorganization Act is valid.

EPILOGUE:

113. The Valley of Kashmir carries a historical burden. It has a social

context. Thus, in evolving a constitutional status of the region, it is

difficult to segregate the aforesaid. “We, the people” of Jammu &

Kashmir are at the heart of the debate. They have carried the burden as

victims of the conflict for several decades originating from 1947 with

Page 115 of 121

the invasion of the Valley. Intervening political circumstances did not

permit a redressal to the fullest extent of the invasion. The

consequences remained in terms of parts of Kashmir being occupied by

other countries. The second round of insurgency holds its origin to the

latter part of 1980s. There was a troubled situation at the ground level,

which was apparently not redressed. It culminated in the migration of

one part of the population of the State 1989-90. It is something that our

country has had to live with and without any redressal for the people

who had to leave their home and hearth. It was not a voluntary

migration.

114. The situation became so aggravated that the very integrity and

sovereignty of our country was endangered and, thus, the Army had to

be called in. Armies are meant to fight battles with enemies of the State

and not really to control the law and order situation within the State but

then, these were peculiar times. The entry of the Army created its own

ground realities in their endeavour to preserve the integrity of the State

and the nation against foreign incursions. The men, women and children

of the State have paid a heavy price.

115. During my travels home over the years, I have observed the social

fabric waning, and the consequences of intergenerational trauma on an

already fractured society. I cannot help but feel anguish for what peoples

of the region have experienced and am constrained to write this

Epilogue.

Page 116 of 121

116. In order to move forward, the wounds need healing. What is at

stake is not simply preventing the recurrence of injustice, but the burden

of restoring the region’s social fabric to what it has historically been

based on – coexistence, tolerance and mutual respect. It is worth noting

that even the partition of India in 1947 did not impair Jammu &

Kashmir’s communal and social harmony. In this context, Mahatma

Gandhi is famously quoted to have said that Kashmir was a ray of hope

for humanity!

117. The first step towards this is to achieve a collective understanding

of the human rights violations perpetrated both by State and non-State

actors, against peoples of the region. There have been numerous reports

documenting these incidents over the years. Yet, what is lacking is a

commonly accepted narrative of what happened, or in other words, a

collective telling of the “truth”. Internationally, the right of victims of

human rights violations to the truth is an end in itself.

131

It encompasses

a structural investigation of the events and socio-political structures that

led to the atrocity, the particular circumstances of individual suffering,

and an authoritative reporting of the results of the investigation.

132

Additionally, truth-telling provides an opportunity for victims to narrate

their stories, which facilitates an acknowledgement from those

131

M. Klinkner and H. Davis, THE RIGHT TO THE TRUTH IN INTERNATIONAL LAW: VICTIM’S RIGHTS IN

HUMAN RIGHTS AND INTERNATIONAL CRIMINAL LAW,

132

Id. at 63.

Page 117 of 121

responsible for perpetuating the wrongs, and from society as a whole.

This paves the way for reconciliation.

118. While there are different ways of achieving these objectives, truth

and reconciliation commissions have been particularly effective

globally. South Africa’s truth and reconciliation commission was set up

to investigate human rights violations perpetrated during the period of

the Apartheid regime. It served as a means of reckoning or catharsis for

victims, and fostered peace-building. Reflecting on its success, Albie

Sachs, J notes:

“...As a result of the TRC, the private sorrow and grief of tens of

thousands was publicly acknowledged in an embracing and personalized

way. Another form of acknowledgement emerged from the perpetrators

themselves. They had to come forward openly in front of the television

cameras, owning up to their crimes. Finally, there was

acknowledgement by the whole country that these things happened and

can happen again—that we needed to fit all these facts together into

some kind of significant pattern which would enable us to understand

their genesis and do what we could to minimize any possibility of their

recurrence.”

133

119. In the past, calls for setting up a truth and reconciliation

commission have also been echoed by different sections of the Valley.

133

A.Sachs, STRANGE ALCHEMY OF LIFE AND LAW, 155 (OUP, 2009).

Page 118 of 121

120. In view of the in-roads made globally, and endogenous requests for

truth and reconciliation, I recommend the setting up of an impartial truth

and reconciliation commission (“Commission”). The Commission will

investigate and report on the violation of human rights both by State and

non-State actors perpetrated in Jammu & Kashmir at least since the

1980s and recommend measures for reconciliation.

121. This Commission should be set up expediently, before memory

escapes. The exercise should be time-bound. There is already an entire

generation of youth that has grown up with feelings of distrust and it is

to them that we owe the greatest duty of reparation. At the same time,

considering the significance of the matter and the sensitivities involved,

it is my view that it is for the Government to devise the manner in which

this should be set up, and to determine the best way forward for the

commission.

122. I am alive to the challenge that recommending the setting up of a

truth and reconciliation is beyond the realm of this Court. However, I am

of the view that transitional justice, and its constituents, are facets of

transformative constitutionalism. Globally, constitutionalism has

evolved to encompass responsibility of both state and non-state actors

with respect to human-rights violations.

134

This includes the duty to take

134

RG Tietel, Transitional Justice and Transformation of Constitutionalism in GLOBALIZING

TRANSITIONAL JUSTICE, (OUP, 2014).

Page 119 of 121

reasonable steps to carry out investigations of violations.

135

It is in this

context that the proposed truth and reconciliation commission accords

with constitutionalism.

123. Our Constitution is no different, and is designed to ensure that

courts offer justice in situations where fundamental rights have been

violated. In doing justice, historically, our courts have been sensitive to

the social demands of our polity and have offered flexible remedies. In

Vishaka and Others v State of Rajasthan,

136

this Court issued guidelines

to address workplace sexual harassment in the absence of an enacted

law, which operated until the Parliament enacted the Sexual Harassment

of Women at Workplace (Prevention, Prohibition and Redressal) Act,

2013.

124. As a word of caution, the Commission, once constituted, should

not turn into a criminal court and must instead follow a humanized and

personalized process enabling people to share what they have been

through uninhibitedly. It should be based on dialogue, allowing for

different viewpoints and inputs from all sides. In the context of South

Africa’s truth and reconciliation commission, Albie Sachs, J observed:

“Judges do not cry. Archbishop Tutu cried. It was not a court of

law in the sense of an austere institution making highly formalized

135

Velasquez Rodriguez v Honduras, (Ser. C) No. 4 (IACHR) 1988.

136

(1997) 6 SCC 241

Page 120 of 121

findings. It was an intensely human and personalized body, there

to hear in an appropriately dignified setting what people had been

through. There were comforters sitting next to the witnesses—in a

court of law no one is there to help the witness, to pat the shoulder,

or provide water or tissues when the person weeps. Frequently the

sessions would start with a song in beautiful African harmony

intended to give a sense of encouragement and support to

everybody present. Or it could begin with prayers. And thereafter

people spoke and spoke in all the regions and in all the languages

of the country. The testimony was televised, and thus the nation

became witness to what had happened and heard the stories

directly from the mouths of the persons concerned. Those who

spoke were not complainants in a court denouncing accused

persons in the dock. Nor were they litigants demanding damages

for themselves, so that the greater the loss, the greater the sum

they would receive.”

137

125. Taking a leaf out of South Africa’s book, the principles of

“ubuntu”, or the art of humanity, and inclusiveness should be central to

the process. This will facilitate a reparative approach that enables

forgiveness for the wounds of the past, and forms the basis of achieving a

shared national identity. Needless to say, the Commission is only one of

the many avenues towards the goal of systemic reform. It is my sincere

137

(supra)

Page 121 of 121

hope that much will be achieved when Kashmiris open their hearts to

embracing the past and facilitate the people who were compelled to

migrate to come back with dignity. Whatever has been, has been but the

future is ours to see.

138

………………………J.

[Sanjay Kishan Kaul]

New Delhi.

December 11, 2023.

138

With apologies to the song, “Que Sera, Sera”, a song by Jay Livingston and Ray Evans.

In Re.: Article 370 of the Constitution Page 1 of 3

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 1099 OF 2019

AND

OTHER CONNECTED MATTERS

IN RE.: ARTICLE 370 OF THE CONSTITUTION

SANJIV KHANNA, J.

A judgment is a decision which gives reasons to arrive at and

reach the conclusion. We have two judgments.

2. The judgment of Hon’ble Dr. Justice D.Y. Chandrachud, the Chief

Justice, is scholarly and it elaborately annotates the complex legal

issues. The judgment authored by Hon’ble Mr. Justice Sanjay

Kishan Kaul pragmatically demystifies the factual and legal

position. Both judgments are in seriatim and uniformly agree that

Article 370 of the Constitution of India was a feature of asymmetric

federalism and not sovereignty. Article 370 was enacted as a

transitional provision and did not have permanent character. 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

In Re.: Article 370 of the Constitution Page 2 of 3

country.

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.

3. I find it difficult to state that I agree with the reasoning in one and

not the other. I, therefore, respectfully concur with the two

judgments. However, I would add with particularisation.

4. Dr. Justice D.Y. Chandrachud has elaborately examined and

interpreted the power of the President of India under Article 356 of

the Constitution of India and disseminated the opinions of

Mr. Justice B.P. Jeevan Reddy and Mr. Justice P.B. Sawant in S.R.

Bommai and Others v. Union of India and Others.

Reference

can also be made to Rameshwar Prasad and Others (VI) v. Union

of India and Another.

I respectfully agree.

5. I also agree with the observations recorded by Dr. Justice D.Y.

Chandrachud taking record of the statement on behalf of the Union

of India for restoration of the statehood of the Union Territory of

See Paragraph 5.

(1994) 3 SCC 1.

(2006) 2 SCC 1.

In Re.: Article 370 of the Constitution Page 3 of 3

Jammu and Kashmir, while upholding the creation of the Union

Territory of Ladakh.

6. 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 justified by giving very strong

and cogent grounds. It must be in strict compliance with Article 3 of

the Constitution of India.

7. Mr. Justice Sanjay Kishan Kaul has explained the effect of Article

370(3) and why it continued to operate after dissolution of the

Constituent Assembly of the State. I respectfully agree with the

detailed reasoning given by Mr. Justice Sanjay Kishan Kaul on this

aspect.

......................................J.

(SANJIV KHANNA)

NEW DELHI;

DECEMBER 11, 2023.

Mr. Justice Sanjay Kishan Kaul has noted alike.