In Re: Article 370 of the Constitution: the unanimous upholding of the J&K abrogation

The Supreme Court's judgment of 11 December 2023 in In Re: Article 370 of the Constitution — reported as 2023 INSC 1058 — is the most consequential federalism ruling of the post-S.R. Bommai generation. A five-judge Constitution Bench, led by Chandrachud, C.J., was asked to determine the constitutional validity of the Presidential Orders of 5 August 2019 — Constitutional Order 272 and Constitutional Order 273 — and of the Jammu and Kashmir Reorganisation Act, 2019. The Bench held, by three judgments converging on the result, that the abrogation was constitutionally sustained.

The judgments — Chandrachud, C.J., for himself, Gavai, J. and Surya Kant, J. (352 pages); Kaul, J. (121 pages); and Khanna, J. (3 pages) — together produced the unanimous outcome. The doctrinal routes diverged in places, but the result is settled: the abrogation stands.

The constitutional architecture before August 2019

Article 370 of the Constitution had operated as the provision governing the relationship between the Indian Union and the State of Jammu and Kashmir. Inserted in 1949 as a transitional provision, the Article gave the State a constitutional position that differed in several respects from that of other States: the Constitution of India applied to Jammu and Kashmir only in the matters specified in the Instrument of Accession, with extensions of other constitutional provisions requiring the concurrence of the State Government and ultimately the President's assent through Constitutional Orders made under Article 370(1)(d).

The State had its own Constitution — the Constitution of Jammu and Kashmir, 1956 — adopted by a State Constituent Assembly that had been dissolved in 1957. The dissolution of the Constituent Assembly had produced one of the central interpretive questions about Article 370: whether the provision could be modified or abrogated after the State Constituent Assembly had ceased to exist.

Article 370(3) had provided that the President could, by public notification, declare Article 370 to cease to be operative — but only on the recommendation of the State Constituent Assembly. The interpretive question was whether the dissolution of the Constituent Assembly in 1957 had frozen the abrogation route, or whether the route remained available through a different mechanism.

The August 2019 measures

On 5 August 2019, the Government of India took three connected steps that, in their cumulative operation, effected the abrogation of Article 370 and the reorganisation of the State.

Constitutional Order 272 applied all provisions of the Indian Constitution to the State of Jammu and Kashmir. The Order was made under Article 370(1)(d) and engaged a constructive reading of Article 367 — substituting the reference to "Constituent Assembly of the State" in Article 370(3) with "Legislative Assembly of the State."

Constitutional Order 273 declared that, with effect from the President's order, all clauses of Article 370 would cease to be operative, except clause (1) — which was modified to declare that the Constitution applied to Jammu and Kashmir without restriction.

The Jammu and Kashmir Reorganisation Act, 2019 — passed by Parliament — reorganised the State into two Union Territories: the Union Territory of Jammu and Kashmir (with a Legislative Assembly) and the Union Territory of Ladakh (without a Legislative Assembly). The Act was passed under Article 3 of the Constitution.

The combined effect was the constitutional re-ordering of the State's relationship with the Union. The constitutional autonomy that Article 370 had supplied was substantially displaced; the State as a political entity was reorganised.

The constitutional questions

The constitutional challenges concentrated on three connected questions.

The first was whether Article 370 was a temporary provision or had attained a permanent character through the dissolution of the State Constituent Assembly. If Article 370 was permanent, the August 2019 measures had abrogated it without constitutional warrant.

The second was whether the Constitutional Orders had been validly made. The challenges engaged the constructive reading of Article 367 — substituting "Legislative Assembly" for "Constituent Assembly" — and the operation of the Order at a time when the State was under President's Rule under Article 356, with no functioning Legislative Assembly.

The third was whether the State could be reorganised into Union Territories under Article 3 of the Constitution, particularly where one of the resulting Union Territories was without a Legislative Assembly.

The Chandrachud judgment

The principal judgment — by Chandrachud, C.J., for himself, Gavai, J. and Surya Kant, J. — held the abrogation constitutionally sustained.

The reasoning on the first question rested on the textual position that Article 370 had been a temporary provision and on the constitutional architecture that did not contemplate the State having residual sovereignty distinct from that of the Union. The State had, on accession, become a part of India under Article 1 of the Constitution; the constitutional autonomy that Article 370 had supplied was the autonomy of a State within the Union, not the autonomy of a sovereign entity. The dissolution of the Constituent Assembly in 1957 had not transformed the temporary provision into a permanent one.

The reasoning on the second question accepted the constructive reading. Article 370 had been retained, after the Constituent Assembly's dissolution, with the understanding that the abrogation route remained available through the constitutional machinery that the post-dissolution architecture supplied. The substitution of "Legislative Assembly" for "Constituent Assembly" through Article 367 — though doctrinally unusual — operated within the constitutional architecture for amending Article 370.

The reasoning on the third question accepted the reorganisation as within Article 3. The reorganisation of a State into Union Territories was within Parliament's power under Article 3, and the absence of a Legislative Assembly in one of the resulting Union Territories did not, in itself, render the reorganisation unconstitutional.

The Chandrachud judgment also addressed the question of whether the State of J&K had retained any sovereignty after accession. The conclusion — articulated explicitly — was that it had not. The State of J&K, on accession, had become a part of India under Article 1; the residual sovereignty argument was rejected. The earlier ruling in Prem Nath Kaul v. State of J&K (1959), to the extent it suggested otherwise, was overruled.

The Kaul concurrence

Justice S.K. Kaul wrote a 121-page concurring judgment. The concurrence converged on the result but engaged with the route differently in places.

The Kaul concurrence's doctrinal contribution lay in two elements. The first was a more detailed engagement with the historical context of the State's accession and the political-historical record of the Article 370 architecture. The second — and the more discussed element — was the recommendation that a Truth and Reconciliation Commission be constituted to engage with the historical violations of human rights in the region, both by State and non-State actors. The recommendation was framed as a measure to address the past and to facilitate the constitutional integration that the abrogation had effected.

The Truth and Reconciliation Commission recommendation operates as a judicial recommendation rather than a binding direction. The Government of India has not, at the time of writing, constituted such a Commission, though the recommendation has been the subject of substantial commentary.

The Khanna concurrence

Justice Sanjiv Khanna wrote a three-page concurring judgment. The concurrence converged on the result and the principal reasoning. The brevity is notable: the Khanna concurrence operates as an endorsement of the Chandrachud judgment's reasoning with minimal independent doctrinal engagement.

What the judgment did not decide

Three limits should be flagged.

First, the judgment did not engage with the political-historical assessment of whether the August 2019 measures were the right course of action as a matter of policy. The constitutional inquiry is distinct from the political assessment; the Court's holding is that the measures were within constitutional competence, not that they were politically wise.

Second, the judgment did not address the question of when — if at all — the Union Territory of Jammu and Kashmir would be restored to full Statehood. The Court accepted the Solicitor General's submission that the Union Government was committed to restoring Statehood as soon as possible, but the timeline and the form of restoration were left to the political branches.

Third, the judgment did not resolve all constitutional questions on the operation of the new constitutional architecture for the region. Questions on the domicile regime, on the application of specific constitutional provisions to the region, and on the relationship between the Union and the new Union Territories may produce further litigation.

The doctrinal arc

In Re: Article 370 sits in a constitutional line on federalism and the relationship between the Union and the States.

The line includes S.R. Bommai v. Union of India (1994) — the engagement with President's Rule under Article 356 and the doctrine that secularism is part of the basic structure. It includes State of West Bengal v. Union of India (1963) — the early engagement with the Union-State relationship. It includes the lines on Article 3 reorganisations across the post-1956 period — the States Reorganisation Act, 1956 and the various reorganisations that followed.

The Article 370 judgment is the latest engagement in this line. The constitutional position it settles — that the State did not have residual sovereignty distinct from the Union — is doctrinally consequential for any future federalism question that engages with the residual-sovereignty argument.

What practitioners take from the judgment today

For constitutional litigators, In Re: Article 370 is the operative authority on the abrogation and on the constitutional position of the State after August 2019. The constitutional architecture for J&K — and the relationship between the Union and the new Union Territories — operates within the frame the judgment has set.

For federalism questions more broadly, the judgment is the most recent engagement of the Court with the Union-State relationship at a moment of substantial constitutional re-ordering. The doctrinal frame — that constitutional re-orderings within Article 3 are within Parliament's competence, and that residual sovereignty is not the constitutional position — applies across the federalism line.

For the political-historical record, the judgment is part of the documentary frame within which the August 2019 measures are now understood. The constitutional position has been settled; the political and historical engagement continues.

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