JALDI

Jaldi-Vidhi

In Re: Article 370 of the Constitution

Case details and hearing information from the Constitution Bench Pendency Portal.

604

Message
show

In Re: Article 370 of the Constitution

This case deals with the validity of the Constitutional Orders that abrogated Article 370.

Petitioners Arguments
The indirect amendment of Article 370(3) without the recommendation of the Constituent Assembly violates the ‘ doctrine of colorability ’. The doctrine holds that if a legislature is not competent to legislate on something directly, it cannot legislate on the matter indirectly. The Jammu and Kashmir Reorganization Act, 2019 is unconstitutional as Article 3 of the Constitution does not allow the Parliament to demote the status of a State to that of a Union Territory. The Supreme Court, in the case of Prem Nath Kaul , had decided that Article 370 is transitory in nature and, therefore, so are the powers of the President under Article 370(1)(d) and Article 370(3). Any amendment to the Article should be recommended by the Constituent Assembly and after the dissolution of the Assembly, no such amendment is possible. The decision in Sampat Prakash v. State of Jammu and Kashmir which holds that Article 370 is permanent in nature, is ‘ per incuriam ’ for failing to consider Prem Nath Kaul. The matter should be referred to a larger bench due to the inconsistency between the judgments of Sampat Prakash v. State of Jammu and Kashmir and Prem Nath Kaul v. State of Jammu and Kashmir.
Responders Arguments
It was held by the Supreme Court in Sampat Prakash v. State of Jammu and Kashmir that the powers of the President extends beyond the dissolution of the Constituent Assembly. Therefore, the President can extend the provisions of the Constitution to the State of Jammu and Kashmir without the concurrence of the Constituent Assembly. The decision in Sampat Prakash is not ‘per incuriam’ because the Supreme Court, in Prem Nath Kaul , was not deciding on the question of the nature of Article 370. It was also a decision that was given prior to the convening of the Constituent Assembly and the historical context should be taken into consideration when deciding whether a judgment is a precedent or not. Hence, there is no need for a referral to a larger bench.
Last Listed On
2023-12-11
Start Date
2019-08-28
End Date
2023-12-11
Review Petition No
W.P. (C) 1099 of 2019
Case Status
Archive
Bench Status
Constituted
Subject Matter
Constitution
Disposal Time
4 years, 3 months, 14 days

5 Judge Bench

Judgment delivered

Consider As Stage Of Pendency
false

Date of institution of case

Date of reference to 5 Judge Bench

Judgement pronounced

The State of Jammu and Kashmir was ceded to India by the 1947 Instrument of Accession . According to the Instrument, the Union could only make laws pertaining to the matters of Defence, External Affairs, and Communications. The powers to make laws regarding all other matters remained vested in the State Government. Article 370 gave Constitutional recognition to the Instrument of Accession. It also laid down that no other provision of the Indian Constitution would be applicable to the State of Jammu and Kashmir, except Article 1 and Article 370 itself. It further mandated that Article 370 could only be abrogated or amended on the recommendation of the Constituent Assembly. Therefore, it allowed a fair amount of autonomy to Jammu and Kashmir - the State was allowed its own constitution, a separate flag and considerable freedom to make laws. The Jammu and Kashmir Constitution came into force on 26-01-1957 and the Constituent Assembly was dissolved. However, Article 370 remained. On 20-12-2018, President’s Rule was imposed in the State of Jammu and Kashmir in exercise of powers under Article 356 of the Constitution of India and was further extended on 03-07-2019 . Two Presidential Orders C.O. 272 and C.O. 273 were issued on 05-08-2019 for abrogating Article 370. These orders superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 . C.O. 272 changed the interpretation of Article 370(3) such that the words “recommendation of the Constituent Assembly” were replaced with the words “recommendation of the Legislative Assembly”. This meant that the President could now issue an Order to abrogate or amend Article 370 on the recommendation of the Jammu and Kashmir Legislative Assembly. Since Jammu and Kashmir was under President’s rule, the powers of the State Legislature were being exercised by the Union legislatures. On 05-08-2019 the Rajya Sabha passed a Statutory Resolution recommending the abrogation of Article 370. The President then issued C.O. 273 which abrogated Article 370 and made all the provisions of the Indian Constitution applicable to the State of Jammu and Kashmir. The Central Government then passed the Jammu and Kashmir Reorganization Act, 2019 which divides the state of Jammu and Kashmir into two union territories of Ladakh (without a legislature) and Jammu and Kashmir (with a legislature). Several petitions challenging the Presidential Orders and the Jammu and Kashmir Reorganization Act of 2019 have been filed before the Supreme court. The matter was referred by a three judge bench headed by the then Chief Justice of India Justice Ranjan Gogoi to a five judge bench by an order dated 28-07-2019.

Can Article 370(1)(d) be validly used to alter the interpretation of Article 370 , as done by presidential order C.O. 272 ? Do the Statutory Resolution and C.O. 273 violate the fundamental democratic rights of the people of J&K under Articles 14 and 21 of the Constitution, by abrogating Article 370 without their consent during President’s Rule? Is the Jammu and Kashmir Reorganization Act, 2019 ultra vires Article 3 of the constitution for changing the status of the State of Jammu and Kashmir to a Union Territory? Is Sampat Prakash v. State of Jammu and Kashmir , which holds that the President's powers to issue Orders under Article 370 extend beyond the dissolution of the Constituent Assembly, ‘ per incuriam ’ for failing to consider Prem Nath Kaul v. State of Jammu and Kashmir , which allegedly held the opposite?

Presidential Order C.O. 272

Presidential Order C.O. 273

The Jammu and Kashmir Reorganization Act, 2019

The court was of the view that there is no conflict between Sampat Prakash v. State of Jammu and Kashmir and Prem Nath Kaul v. State of Jammu and Kashmir since Prem Nath Kaul was decided before the convening of the Constituent Assembly and judgments cannot be interpreted in vacuum, separate from their facts and context.

Sampat Prakash v. State of Jammu and Kashmir

Prem Nath Kaul v. State of Jammu and Kashmir

Reapan Tikoo v. Union of India

Date Of Institution Start
2018-08-02
Case No
W.P.(C) No. 924/2018

Manohar Lal Sharma v. Union of India

Date Of Institution Start
2019-08-06
Case No
W.P.(C) No. 1013/2019

Shakir Shabir v. Union of India

Date Of Institution Start
2019-08-09
Case No
W.P.(C) No. 1048/2019

Farooq Ahmad Dar v. Union of India

Date Of Institution Start
2019-08-09
Case No
W.P.(C) No. 1082/2019

Soayib Qureshi v. Union of India

Date Of Institution Start
2019-08-09
Case No
W.P.(C) No. 1068/2019

Mohd. Akbar Lone v. Union of India

Date Of Institution Start
2019-08-10
Case No
W.P.(C) No. 1037/2019

Inder Salim Alias Inder Ji Tikoo v. Union of India

Date Of Institution Start
2019-08-13
Case No
W.P.(C) No. 1062/2016

Radha Kumar v. Union of India

Date Of Institution Start
2019-08-17
Case No
W.P.(C) No. 1070/2019

Muzzafar Iqbal Khan v. Union of India

Date Of Institution Start
2019-08-27
Case No
W.P.(C) No. 1104/2019

Jammu & Kashmir People Conference v. Union of India

Date Of Institution Start
2019-09-12
Case No
W.P.(C) No. 1165/2019

Rifat Ara Butt v. Union of India

Date Of Institution Start
2019-09-24
Case No
W.P.(C) No. 1222/2019

Jammu and Kashmir High Court Bar Association v. Union of india

Date Of Institution Start
2019-09-30
Case No
W.P.(C) No. 1268/2019

Peoples Union of Civil Liberties v. Union of India

Date Of Institution Start
2019-11-14
Case No
W.P.(C) No. 1368/2019

Explained: Wheel moves on J&K-Article 370 petitions before SC, what’s under challenge in these cases?

Explained: Wheel moves on J&K-Article 370 petitions before SC, what’s under challenge in these cases?
Source Of Info
The Indian Express
Date Of Fr
2022-04-28

Abrogation of Article 370 was long overdue. But we must not hurry change in mindset

Abrogation of Article 370 was long overdue. But we must not hurry change in mindset
Source Of Info
The Print
Date Of Fr
2021-08-05

Kashmir | Abrogation Of Article 370 In The Valley, A Memoir

Kashmir | Abrogation Of Article 370 In The Valley, A Memoir
Source Of Info
Outlook India
Date Of Fr
2020-06-17