In re Article 370 case

Also called: In Re: Article 370 of the Constitution (2023) · Topic: Special Provisions, Scheduled and Tribal Areas · NCERT: Beyond NCERT

Meaning

In re Article 370 of the Constitution is the unanimous judgment given on 11 December 2023 by a five-judge Constitution Bench of the Supreme Court. It upheld the 2019 steps that made Article 370 inoperative (no longer working), and it held that Article 370 was a temporary provision [2]. The Court accepted the final result, but it struck down one legal route the Union had used: rewriting Article 370 through Article 367.

This case settled whether the 2019 changes in Jammu and Kashmir (J&K) were valid. It also raised open questions about federalism (the division of power between the Union and the states), about consent given while a state is under President's rule, and about whether a state can be turned into a Union Territory (UT).

Explanation

What was challenged: the 2019 sequence

• Background: the J&K assembly had been dissolved. President's rule (when the Union government takes over the running of a state for a time, under Article 356) had been in force since December 2018. So there was no elected state government and no state legislature.
• Step 1: C.O. 272 (5 August 2019), issued under Art. 370(1)(d)
• It applied the whole Constitution to J&K and replaced the 1954 order.
• It added a clause to Art. 367 (the interpretation clause, which explains how words in the Constitution must be read). Because of this clause, "Constituent Assembly" in Art. 370(3) would be read as "Legislative Assembly of the State".

• The Governor gave consent in place of the "Government of the State".

• Step 2: statutory resolutions in both Houses (5–6 August 2019)

• Parliament, acting for the dissolved state assembly, recommended that Art. 370 be declared inoperative.

• Step 3: C.O. 273 (6 August 2019), issued under Art. 370(3)

• It declared all clauses of Art. 370 inoperative except a modified clause (1).

• Step 4: J&K Reorganisation Act 2019, passed under Arts. 3–4

• It split the state into two UTs, J&K and Ladakh, from 31 October 2019.

The Bench

• Lead opinion: written by CJI D.Y. Chandrachud for himself and Justices B.R. Gavai and Surya Kant.
• Concurring opinions (agreeing with the result but giving their own reasons): Justice S.K. Kaul and Justice Sanjiv Khanna.
• Result: the decision was unanimous [2].

What the Court held

1. No sovereignty: after accession, J&K kept no element of sovereignty (supreme power to govern itself) [2]. Art. 370 was a form of asymmetric federalism (some states get different powers from others), not a sign of sovereignty.

2. Temporary provision: Art. 370 was temporary [2]. It was temporary in two ways: - Interim: it was made for wartime conditions in 1947–49. - Transitional: it was meant to bring J&K into the Constitution step by step.

3. The Art. 370(3) power survived: the President could declare Art. 370 inoperative without the Constituent Assembly's recommendation. This power did not end when the state's Constituent Assembly was dissolved in 1957 [2].

4. The Art. 367 route was invalid, but the result stands: - Using Art. 367 to rewrite Art. 370 was invalid. It was an amendment in disguise. It skipped the Art. 368 procedure, which is the normal way to amend the Constitution. - Applying the whole Constitution under Art. 370(1)(d) was valid, even without the state government's concurrence. - C.O. 273 was valid.

5. Parliament's power during President's rule: Parliament can use the state legislature's powers to make laws. It can also use them for non-law-making acts, such as making the Art. 370(3) recommendation [2].

6. J&K Constitution: it is now inoperative and redundant [2].
7. Ladakh: the Court upheld the creation of the UT of Ladakh, because Art. 3 allows a UT to be carved out of a state.
8. State to UT left open: the Court did not decide whether Art. 3 allows a whole state to be turned into a UT. It relied on the Union's assurance that statehood would be restored "at the earliest" [2].
9. Elections: the Court directed the Election Commission to hold Assembly elections by 30 September 2024 [2].
10. Reconciliation: Justice Kaul alone suggested an impartial truth and reconciliation commission. It would look into human-rights violations by state and non-state actors since the 1980s.

In the Constitution and practice

• Where it sits:
• Article 370 is in Part XXI (temporary, transitional and special provisions).
• Art. 370(1)(d) let the President apply other parts of the Constitution to J&K by order. On subjects outside the Instrument of Accession, this needed the "concurrence of the Government of the State".
• Art. 370(3) let the President declare Art. 370 inoperative by public notification, on the recommendation of the state's Constituent Assembly.

• Other articles that matter to the case: Art. 367 (interpretation), Art. 368 (amendment), Art. 356 (President's rule) and Arts. 3–4 (creating or changing states and UTs).

• The text still exists: Art. 370 is still in the Constitution. It is inoperative because of C.O. 272 and C.O. 273. The NCERT Class 12 line that it was "abolished by the Reorganisation Act" is wrong. That Act only split the state.

• What the Reorganisation Act 2019 did:
• The UT of J&K has a legislature on the Art. 239A model. The UT of Ladakh (Leh and Kargil) has no legislature [1].
• Both UTs share one High Court [1].

• The state's Legislative Council was abolished [1].

• What followed the judgment:

• Assembly elections were held in September–October 2024. Results came on 8 October 2024: National Conference 42, BJP 29 [3].
• President's rule in the UT was revoked on 13 October 2024. Omar Abdullah's government took office on 16 October 2024.

• Statehood has not been restored. There is also friction over the LG's powers.

• Related case: in Anuradha Bhasin v. Union of India (2020), the Court held that the internet shutdowns after 2019 had to be proportionate (no wider than needed), published and reviewed.

Don't confuse with

• Abrogation by the Reorganisation Act 2019: Art. 370 was made inoperative by presidential orders (C.O. 272 and C.O. 273). The Act, passed under Arts. 3–4, only divided the state into two UTs.
• C.O. 272 and C.O. 273: the Court struck down the Art. 367 amendment in C.O. 272. It upheld C.O. 273, and it upheld applying the whole Constitution under Art. 370(1)(d).
• Art. 370 and Arts. 371–371J: both are forms of asymmetric federalism. But Art. 370 limited which parts of the Constitution applied to J&K and is now inoperative. The Art. 371 series (for example 371A for Nagaland and 371G for Mizoram) gives special safeguards inside the full Constitution and is still in force.
• What the Bench ordered and what one judge suggested: the election deadline was a direction from the whole Bench. The truth and reconciliation commission was only a suggestion by Justice Kaul.

Prelims Hooks

• In re Article 370 (11 December 2023) was decided by a five-judge Constitution Bench, and the decision was unanimous [2].
• Art. 370 was held to be a temporary provision. J&K kept no element of sovereignty after accession [2].
• The power under Art. 370(3) did not end when the J&K Constituent Assembly was dissolved in 1957 [2].
• Art. 367 route: invalid, because it was an amendment in disguise that skipped Art. 368. C.O. 273: valid.
• Election deadline set by the Court: 30 September 2024 [2]. Results came on 8 October 2024 [3].
• Trap: the Court did not rule on whether Art. 3 allows a state to be turned into a UT. It relied on the Union's promise to restore statehood "at the earliest" [2].

Mains Points

• Consent during President's rule: the state's "consent" came from the Governor (for the state government) and from Parliament (for the state legislature). In effect, the Union consented to itself. The Court allowed Parliament's non-law-making powers under President's rule [2], so critics say the consent requirement now means little. Possible safeguards:
• require an elected legislature before any Art. 3 change to a state's status;

• limit Parliament's non-law-making powers under Art. 356(1)(b).

• Downgrading states, an open question: because the Court left the state-to-UT question undecided, a future government could use Art. 3 together with President's rule to downgrade any state.

• This weakens federalism, which is part of the basic structure (core features that Parliament cannot destroy, as recognised in S.R. Bommai (1994)).

• Remedies: restore statehood quickly, as promised to the Court, and define the LG's powers clearly, like the arrangement for Delhi under Art. 239AA.

• Integration and asymmetry:

• For the change: there is now one Constitution for all, and central laws on SC/ST rights, the RTE and reservations apply in J&K.
• Against it: the change broke trust, set aside a negotiated settlement based on the Instrument of Accession, and came with long shutdowns and detentions. This affects how the North-East reads its Art. 371 guarantees.
• Justice Kaul's truth and reconciliation commission idea offers a path towards healing.

Related concepts

• Constitution (Application to Jammu and Kashmir) Order 2019
• Jammu and Kashmir Reorganisation Act 2019

Read more

• The 2019 changes, the Reorganisation Act and In re Article 370 (2023)