370 Judgment

[2023] 16 S.C.R.
1 : 2023 INSC 1058
CASE DETAILS
IN RE: ARTICLE 370 OF THE CONSTITUTION
(Writ Petition (Civil) No. 1099 of 2019)
DECEMBER 11, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,
SANJAY KISHAN KAUL, SANJIV KHANNA,
B. R. GAVAI AND SURYA KANT, JJ.]
HEADNOTES
Issues for consideration: 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) which orders had
the effect of applying the entire Constitution of India to the State of Jammu
and Kashmir and abrogating Article 370. Contemporaneously, the Parliament
enacted the Jammu and Kashmir Reorganisation Act 2019 which bifurcated
the State into two Union territories, namely, the Union Territory of Jammu
and Kashmir and the Union Territory of Ladakh. The petitioners challenged
the constitutionality of these actions. CO 272 was issued under Article
370(1)(d) and sought to amend clause (3) of Article 370. The petitioners
challenged CO 272 as being ultra vires Article 370(1)(d) on the grounds
that: a. It modified Article 370, which could 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).
Further, the exercise of power under Article 370(3) in issuing CO 273 was
challenged. The questions for determination were:
a. Whether the provisions of Article 370 of the Constitution were
temporary in nature or whether they acquired a status of permanence in
the Constitution;
b. Whether the amendment to Article 367 of the Constitution 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” was constitutionally valid;
Ed. Note: Hon’ble Dr. Dhananjaya Y Chandrachud, CJI pronounced the judgment of the
Bench comprising His Lordship, Hon’ble Mr. Justice B R Gavai and Hon’ble Mr Justice
Surya Kant, while Hon’ble Mr Justice Sanjay Kishan Kaul and Hon’ble Mr Justice Sanjiv
Khanna pronounced their separate judgments.
1
2 SUPREME COURT REPORTS [2023] 16 S.C.R.
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) was 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 were constitutionally valid;
f. Whether the Proclamation which was issued by the President under
Article 356 of the Constitution on 19 December 2018 and the subsequent
extensions were 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)
was 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.
Federalism – Asymmetric federalism – Constitutional integration
of Indian States – Accession of Jammu and Kashmir – Article 370 of
the Constitution of India incorporated special arrangements for the
governance of the State of Jammu and Kashmir – Whether the State of
Jammu and Kashmir possessed sovereignty – Meaning of sovereignty.
IN RE: ARTICLE 370 OF THE CONSTITUTION 3
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): The State of Jammu and Kashmir does not retain any
element of sovereignty after the execution of the Instrument of Accession
(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. [Para 514]
– Held (per Sanjay Kishan Kaul, J.): In light of the Supreme Court’s prior
finding in Prem Nath Kaul case, the State of Jammu and Kashmir retained
an element of internal sovereignty despite Maharaja Hari Singh signing
the IoA with the Dominion – Art.370 of the Constitution recognized this
internal sovereignty by recognizing the Constituent Assembly of the State.
[Para 112] – Held (per Sanjiv Khanna, J.): 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 country. [Para 2]
Constitution of India – Art. 356 – Constitution of Jammu and
Kashmir – s.92 – Proclamations issued under Article 356 of the
Constitution of India and s.92 of the Constitution of Jammu and
Kashmir – Constitutional validity of.
and Surya Kant, JJ.): 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. [Para 514]
Constitution of India – Art. 356 – Presidential Proclamation
– Exercise of power by President or Parliament under Article 356 –
Limitations on, if any – Standard to assess actions taken under Article
356 after issuance of Proclamation.
and Surya Kant, JJ.): 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 – 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. [Para 514] – Held (per Sanjay Kishan Kaul, J.) (Concurring
with Dr. D.Y. Chandrachud, CJI): 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 –
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 – 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 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. [Para
112] – Sanjiv Khanna, J. concurring with Dr. D.Y. Chandrachud, CJI.
Constitution of India – Art. 370 – Scope and interpretation of –
Art.370 incorporating special arrangements for governance of the State
of Jammu and Kashmir, if a temporary provision – Historical context
to the Article – Placement of Art.370 in Part XXI of the Constitution
– Effect of.
and Surya Kant, JJ.): 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. [Para 514] – Held (per
Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y. Chandrachud,
CJI): 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. [Para 112] – Held (per Sanjiv Khanna, J.)
(Concurring with both Dr. D.Y. Chandrachud, CJI and Sanjay Kishan
Kaul, J.): Article 370 was enacted as a transitional provision and did not
have permanent character. [Para 2]
Constitution of India – Art. 370 – Effect of dissolution of the
Constituent Assembly of Jammu and Kashmir on the scope of powers
under Art.370(3).
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai and
Surya Kant, JJ.): 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). [Para
514] – Held (per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y.
Chandrachud, CJI): 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 – 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 – 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. [Para 112] – Sanjiv Khanna,
J. concurring with Sanjay Kishan Kaul, J.
Constitution of India – Art. 370 – Amendment of Art. 370 through
Art. 370(1)(d) – Application of the Constitution of India to the State
of Jammu and Kashmir through exercise of power under Art. 370(1)

(d) – Amendment to Article 367 of the Constitution 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” – Validity
of modification of Art. 367 – The President issued Constitutional
Orders 272 and 273 during the subsistence of a Proclamation under
Article 356(1)(b) – These orders had the effect of applying the entire
Constitution of India to the State of Jammu and Kashmir and
abrogating Art.370 – Challenge to the Constitutional Orders 272 and
273 (C.Os 272 and 273).
and Surya Kant, JJ.): 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 – However, 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 – 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 – 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 – 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. [Para 514] – Held
(per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y. Chandrachud,
CJI): 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 – 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 – 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 alter the character of a
provision – Therefore, Paragraph 2 of C.O. 272, which amends Article 367(4)
is ultra vires Article 370 – 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. [Para 112] – Held (per
Sanjiv Khanna, J.) (Concurring with both Dr. D.Y. Chandrachud, CJI
and Sanjay Kishan Kaul, J.): 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. [Para 2]
Jammu and Kashmir Reorganisation Act 2019 – s.14 – Parliament

enacted the Jammu and Kashmir Reorganisation Act 2019 which
bifurcated the State of Jammu and Kashmir into two Union territories,
Union Territory of Jammu and Kashmir and Union Territory of Ladakh
– Challenge to the Reorganisation Act on substantive grounds and
on procedural grounds – Contours of the power under Art. 3 of the
Constitution of India – Parliament’s exercise of power under the first
proviso to Art.3 – Suspension of the second proviso to Art.3 as applicable
to Jammu and Kashmir – Constitution of India – Art.3.
and Surya Kant, JJ.): 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 – 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, it is not 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, the validity of the decision to carve out the Union
Territory of Ladakh is upheld in view of Article 3(a) read with Explanation
I which permits forming a Union Territory by separation of a territory from
any State – Steps to be taken by the Election Commission of India to conduct
elections to the Legislative Assembly of Jammu and Kashmir constituted
under s.14 of the Reorganisation Act by 30 September 2024 – Restoration
of Statehood shall take place at the earliest and as soon as possible. [Para
514] – Held (per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y.
Chandrachud, CJI): 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 – 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.

[Para 112] – Held (per Sanjiv Khanna, J.) (Concurring with Dr. D.Y.
Chandrachud, CJI): 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. [Para 6]
Human Rights – Jammu and Kashmir – Held Per Sanjay Kishan
Kaul, J, Recommendation made by for setting up of an impartial truth and
reconciliation Commission to investigate and report on violation of human
rights both by State and non-State actors in Jammu & Kashmir at least since
the 1980s and recommend measures for reconciliation. [Para 120]
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Press, India 2014) 16-17, 48, 49, 50-78, 95, 111-113, 117-120, 217-223; V.P.
Menon, The Story of the Integration of the Indian States (Orient Longmans
Pvt. Ltd. 1956) 391; Durgaprasad (ed.), The Rajatarangini of Kalhana,
vol. 2 (1894) 408; Monier-Williams, Modern India and the Indians (3rd
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; 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; Justice
A.S. Anand, The Constitution of Jammu & Kashmir: Its Development &
Comments (3rd edn., Universal Law Publishing Co. Pvt. Ltd. 1998) 41, 42,
44, 50, 51; David E. Lockwood, ‘Kashmir: Sheikh Abdullah’s Reinstatement’
(1975) 31(6) The World Today, 250; Surinder Mohan, ‘Democracy in Jammu
and Kashmir 1947-2008’ 2012 16(3) World Affairs, 112-113, 104; P.N.K
Bamzai, Culture and Political History of Kashmir: Modern Kashmir, vol. 3
(M.D. Publications Pvt. Ltd., New Delhi 1994) 852; Black’s Law Dictionary,
(VI Edition, 1990); Constituent Assembly Debates, Vol. VII, Pg 34 and M.
Klinkner and H. Davis, The Right to the Truth in International Law: Victim’s
Rights in Human Rights and International Criminal Law; A.Sachs, Strange
Alchemy of Life and Law, 155 (OUP, 2009) and 4 RG Tietel, Transitional
Justice and Transformation of Constitutionalism in Globalizing Transitional
Justice, (OUP, 2014) – referred to.
In the judgment of Sanjiv Khanna, J.
S.R. Bommai and Others v. Union of India and Others. (1994) 3 SCC
1 : [1994] 2 SCR 644 and Rameshwar Prasad and Others (VI) v. Union of
India and Another (2006) 2 SCC 1 : [2006] 1 SCR 562 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
ORIGINAL WRIT/APPELLATE JURISDICTION: Writ Petition

(Civil) No. 1099 of 2019.
Under Article 32 of The Constitution of India
In Re: Article 370 of The Constitution
With
Writ Petition (C) Nos. 871 of 2015, 722 of 2014, SLP (C) No. 19618
of 2017, Writ Petition (C) Nos.1013, 1082, 1068, 1037, 1062, 1070, 1104,
1165, 1210, 1222 of 2019, 396, 756 of 2017, 398, 924, 1092, 1162 of 2018,
1048, 1268 and 1368 of 2019.
Appearances:
R Venkataramani, Attorney General for India, Tushar Mehta, Solicitor
General, K M Nataraj, Vikramjit Banerjee, A.S.Gs., D.C. Raina, Advocate
General/Sr. Adv., Shailesh Madiyal, A.A.G., Muzaffar. H. Baig, Ms. Nitya
Ramakrishnan, Gopal Sankaranarayanan, Kapil Sibal, C U Singh, Shekhar
Naphade, Prashanto Chandra Sen, Gopal Subramanium, Dr. Rajeev Dhavan,
Dushyant Dave, Ravindra Kumar Raizada, Rakesh Dwivedi, Dr. Menaka
Guruswamy, Zafar A. Shah, Harish Salve, V. Giri, Mahesh Jethmalani, S
Guru Krishna Kumar, Bimal Roy Jad, Vikram Sharma, Pranav Kohli, Dinesh
Dwivedi, Ms. Nitya Ramakrishnan, P.V. Surendarnath, Sr. Advs., Aftab Ali
Khan, Murtaza. A. Khan, Ms. Safina Baig, M. Z. Chaudhary, Ali Safeer
Farooqi, S. Mansoori, Aakarsh Kamra, N. Sai Vinod, Prasanna S, Ms.
Malavika Prasad, Shadan Farasat, Ms. Rupali Samuel, Archit Krishna,
Vibhor Jain, M. V. Mukunda, Ms. Swati Arya, Yuvraj Singh Rathore, Dr.
Aniruddha Rajput, Anirudh Sharma, Sridhar Potaraju, Pattabhiram,
Nachiketa Joshi, Praneet Pranav, Yashraj Singh Bundela, Barun Kumar
Sinha, Mrs. Pratibha Sinha, Rakesh Mudgal, Pankaj Kumar Shukla, Niraj
Kumar, Sneh Vardhan, Rameshwar Prasad Goyal, Anil Kumar Jha, Binay
Kumar Das, Vijayendra Misra, Ms. Y. K. S. Chauhan, Ms. Vijayalakshmi
Jha, Ms. Priyanka Das, Ms. Jyothi Pathak Jha, Ms. Neha Das, Ravi Shankar
Ravi, Sanjay Kumar Lal Das, Navin Jha, M. C. Dhingra, Vikrant Yadav,
Gaurav Dhingra, Ankur Prakash, Manish Vashishtha, Syed Imtiyaz Ali, Mrs.
Kamakshi Mehlwal, Ashok Kumar, Mohnish Nirwan, Ms. Aparna Singh,
Ms. Shivani Vij, Ms. Tanya Srivastava, Ms. Aditi Gupta, Ms. Trisha
Chandran, Ms. Jhanvi Dubey, Ms. Ishita Chowdhury, Satyajit Sarna,
Shrutanjaya Bhardwaj, Vikramaditya, Vishal Sinha, Ms. Charu Ambwani,
Soayib Qureshi, D. Mahesh Babu, Shishir Pinaki, Muzaffar Iqbal Khan,
Dhanaeswar Gudapalli, Ms. Aparajita Jamwal, Nizam Pasha, Rishabh
Parikh, Desam Sudhakara Reddy, Ms. Mallika Das, D. Siva Rami Reddy,
K. Venkateshwara Prasad, Medi Yadaiah, Dr. Saif Mahmood, D. Abhinav
Rao, Mayank Mikhail Mukherjee, Amjid Maqbool, Ms. Bidya Mohanty,
Arjun Krishnan, Ankur Singh, Pratik Patnaik, Kaustav Som, Ms. Aishwarya
Dash, Dr. Prashant Pratap, Ms. Farah Hashmi, Ms. Somya Yadava, Ms.
Shruthi Parasa, Ms. Akshita Chhabra, Ms. Khyati Jain, Ranvir Singh, Gautam
Bhatia, Ms. Malavika Prasad, Ms. Ujwala Uppaluri, Jayavardhan Singh,
Ms. Hima Lawrence, Pawan Bhushan, Lakshay Laroiya, Ms. Pritha
Srikumar, Sulabh Rewari, Aditya Chatterjee, Ms. Mansi Binjrajka, Binit

Agrawal, P. V. Dinesh, Jaimon Andrews, Ms. Anna Oommen A, Prashant
Bhushan, Ms. Ayushi, Akshat Malpani, Mohd. Irshad Hanif, Ms. Jyotika
Kalra, Dr. Charu Wali Khanna, Joydeep Mukherjee, Ms. Annwesha Deb,
Tripurari Ray, Balwant Singh Billowria, Anirudh Ray, Vivekanand Singh,
Nithyananda Murthy P, Mrs. Bhanu Prabha, N Suresha, Dr. Nisha Kant
Ojha, Rajinder Singh, Suresh Kumar Sharma, Atul Wadera, Ms. Shilpa
Singh, Dileep Kumar Dubey, Rajeev Pandey, Surjeet Singh, Adarsh
Upadhyaya, Sarthak Raizada, Pankaj Jamthani, Mukesh Kumar Verma,
Anant Sangal, Shivam Singhania, Ms. Divya Roy, Pallav Mongia, Vishnu
Shankar Jain, Ashwini Kumar Upadhyay, Ashwani Kumar Dubey, Chandra
Shekhar, Ajit Kumar Pathak, Eklavya Dwivedi, Utkarsh Pratap, Lavkesh
Bhambhani, Harshwardhan Thakur, Vidur Dwivedi, Akashdeep Panday,
Sazid Sr Shah, Amod Kumar Bhidurdi, Saquib Siddiqui, Mehmood Umar
Faruqui, Shahbaaz Jameel, Ali Muzaffar, Ms. Sarika Verma, Kausar Raza
Faridi, Dharmendra Kumar Sinha, J. N. Shaheen, M. A. Ronga, Bashir
Sadiq, Onkar Prasad, Sunil Prakash Sharma, Ajay Amitraj, Dr. Ritu
Bhardwaj, Raju Sonkar, Ms. Baby Bonia, Abhimanue Shrestha, Kanu
Agrawal, Rajat Nair, Ankur Talwar, Ms. Shraddha Deshmukh, Madhav
Sinhal, Anandh Venkataramani, Mrs. Vijayalakshmi Venkataramani, Vinayak
Mehrotra, Ms. Mansi Sood, Chitvan Singhal, Ms. Sonali Jain, Abhishek
Kumar Pandey, Raman Yadav, Kartikey Aggarwal, Pranatap Singh, Gaurang
Bhushan, Aman Mehta, Arvind Kumar Sharma, Sanjay Kumar Tyagi, Ajit
Yadav, Surjeet Singh, Sarthak Raizada, Alabhya Dhamija, Mithun Shashank,
Sudipto Sircar, Ms. Divya Roy, Rahul G. Tanwani, Anantha Narayana M.G.,
Manan Sanghai, Ms. Suveni Bhagat, Harshad Sundar, Ms. Vishwaja Rao,
Rahul Narang, Prashant Singh, V.C. Shukla, Shubendu Anand, Ayush Anand,
Ritvik Banot, Anant Sangal, Deepak Goel, Ms. Rao Vishwaja, Anantha
Narayan, Vipin Kumar Sexana, Chaman Rana, Ms. Alka Goyal, Ms. Urvashi
Sharma, Kumar Kartikay, Mukesh Verma, Vipin Kumar, Vibhu Shanker
Mishra, Ms. Samta Pushkarna Mishra, Mani Shanker Mishra, Kamal Kumar
Pandey, Jitendra Bharti, Ms. Baby Devi Bonia, Anil Kaushik, Ravi Sharma,
Ms. Mugdha Pandey, Ajay Awasthi, Mrs. Aditi Tripathi, Ms. Kanika Singhal,
Himadri Haksar, Santosh Kumar, Sayooj Mohandas M., Bhaskar Gautham,
Vishal Arun, Ms. Serena Jethmalani, Yash Raj Singh Bundela, Amit Sharma,
Rajan Kumar Chourasia, Vishnu Kant, Rajeev Ranjan, Pavan Kumar, Aviral
Saxena, Ms. Kavitha K T, Ashwin K, Gopal Jha, Tadimalla Bhaskar

Gowtham, Siddharth Sinha, Rajesh K. Singh, Shyamal Kumar, Bitu Kumar
Singh, Sunil Kumar Tomar, Ajay Kumar Pandey, Sandeep Singh, Dr. Brij
Bhushan K. Jauhari, Ms. Riddhi Jad, O.P. Singh, Suresh Kumar Bhan, Kumar
Ji Bhat, AK Kaul, N B Vishen, Harsh Mahan, Deepak Jyoti Ghildiyal, Ms.
Purnima Jauhari, Ms. Archana Pathak Dave, Ms. Aditi Tripathi, Ms. Sindoora
Vnl, Kumar Prashant, Parmod Kumar Vishnoi, Avnish Dave, Vaibhav
Dwivedi, Ms. Riya Sethi, Aadhar Saha, V. K. Biju, Mrs. Ria Sachthey,
Chetanya Singh, Abhay Pratap Singh, Aniruddha Purushotham, Shaji
George, Mayank Pandey, Ms. Shalaka Srivastava, Dr. Ranjeet Bharti, Dr.
Vivek Sharma, Mrs. Rubeena Jawed, Ms. Vijay Lakshmi, Mrs. Deepa Joseph,
Vineet Kumar Singh, Sahil Tagotra, Prem Sadotra, Ms. Abhivyakti Banerjee,
Pashupathi Nath Razdan, Parth Awasthi, Ms. Maitreyee Jagat Joshi, Astik
Gupta, Akshay Kumar, Vaibhav Sabharwal, Ms. Akanksha Tomar, Ritik
Sharma, Eklavya Dwivedi, Ashwani Kumar Dubey, Rajesh Bhushan, Nitin
Sangra, Ms. Shweta Singh Parihar, Dr. Charu Mathur, Siddharth Praveen
Acharya, Ujjwal Mishra, Ms. Anisha Agarwal, Ravi Kant Purohit,
Dharmendra Kumar Sinha, Onkar Prasad, Sunil Prakash Sharma, Ajay
Amitraj, Dr. Ritu Bhardwaj, Raju Sonkar, J. N. Shaheen, M. A. Ronga,
Bashir Sadiq, K. K. Mohan, Prateek Dwivedi, Nishant Singh, Prasanna S.,
Ms. Malavika Prasad, Archit Krishna, Vibhor Jain, Ms. Rupali Samuel, Syed
Iqbal Tahir, Ms. Swati Arya, Yuvraj Singh Rathore, Shaunak Dutta, Utkarsh
Pratap, Lavkesh Bhambhani, Harshwardhan Thakur, Yash Tiwari, Shakti
Kanta Pattanaik, Ms. Warisha Farasat, Shadan Farasat, Harshit Anand, Aman
Naqvi, Prasana S, Ms. Hrishika Jain, Ms. Natasha Maheshwari, Ms.
Mreganka Kukreja, Satyajeet Kumar, Ms. Taruna Ardhendumauli Prasad,
Ms. Adeeba Mujahid, Shailesh Madiyal, Mustafa Sajad, Siddharth Thakur,
Mahesh Thakur, Ms. Keerti Jaya, Ranvijay Singh Chandel, Mrs. Geetanjali
Bedi, Shivamm Sharrma, Ms. Anusha R., Ms. Sanjivani Aggarwal, Ms.
Jyoti Aggarwal, Pradeep Shekhavat, Ms. Filza Moonis, Ninad Dogra, Ashok
Mathur, Anupam Raina, Sunando Raha, Nishant Kumar, Osheen Bhat,
Abhimanyu Tewari, Apoorv Shukla, B. K. Satija, Prashant Rawat, P. S.
Sudheer, Rishi Maheshwari, Bharat Sood, Ms. Anne Mathew, Ms. Miranda
Solaman, K. V. Muthu Kumar, Talha Abdul Rahman, Ms. Manju Jetley,
Omprakash Ajitsingh Parihar, Satya Mitra, Charanjeet Singh Chanderpal,
Anil Kumar, Manoj K. Mishra, Ms. Rajshree Rai, Vinay Rai, J.K. Mishra,
Amrendra Kumar Singh, Umesh Dubey, Vaibhav Tiwari, Piyush Singh,

Vishal, Ms. Madhulika, Harvinder Chowdhury, G. Sivabalamurugan,
Vasantha Kumar A, Sanchit Vashisthe, Ms. Nidhi Vashistha, Purnendu
Bajpai, Mudit Chaudhry, Himanshu Nagarwal, Gaurav Kumar, Rohit Nagar,
Deepak Chauhan, Ms. Ankita Goutham, Abinav Upadhyaya, Vikram Kumar
Singh, Ms. Satamita Ghosh, Raghav Sabharwal, Ms. Tanvi Dubey, Anukrit
Gupta, Sanjay Kumar Dubey, Varun Byreddy, Mekala Ganesh Kumar Reddy,
Riju Raj Singh Jamwal, Ms. Madhusmita Bora, Ms. Resmitha R. Chandran,
Subhash Chandran K.R., Mukesh Kumar Pandey, Vipin Kumar Mishra,
Sawan Kumar Shukla, K. Krishna Kumar, Soayib Qureshi, Ms. Disha Singh,
Shivendu Gaur, Mrs. Nidhi Sharma, Mohit, R.K Kashyap, Sumit R. Sharma,
Irshad Ahmad, Mohit Chaudhary, Advs. for the appearing parties.
Petitioner-in-person
Applicant-in-person
Intervenor-in-person.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
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
* Ed. Note: Pagination is as per the original judgment.

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
[DR DHANANJAYA Y CHANDRACHUD, CJI]
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
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 20191 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 Party2 with the Bharatiya Janata Party
in 2015. The Chief Minister of the State, Ms Mehbooba Mufti, belonging to
the PDP, resigned on 19 June 2018 after the Bharatiya Janata Party withdrew
support. The next day, the Governor issued a Proclamation under Section
92 of the Constitution of Jammu and Kashmir, which entrusts power to the
Governor to assume all the powers and functions of the Government of the
* Ed. Note: PART A.

1 “Reorganisation Act”
2 “PDP”
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
c. The fi rst 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
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 20193 which was sent
to the House under the proviso to Article 3, in the following
terms :
“That the President of India has referred the Jammu and
Kashmir Reorganisation Bill, 2019 to this House under
the proviso to article 3 of the Constitution of India for its
views as this House is vested with the powers of the State
Legislature of Jammu and Kashmir, as per proclamation
of the President of India dated 19 December, 2018. This
House resolves to express the view to accept the Jammu
and Kashmir Reorganisation Bill, 2019.”
c. Simultaneously, the Lok Sabha also accepted the Jammu and
Kashmir Reorganisation Bill 2019 in terms of the following
resolution:
“That the President of India has referred the Jammu and
Kashmir Reorganisation Bill, 2019 to this House under
the proviso to article 3 of the Constitution of India for its
views as this House is vested with the powers of the State
Legislature of Jammu and Kashmir, as per proclamation
of the President of India dated 19 December, 2018. This
House resolves to express the view to accept the Jammu
and Kashmir Reorganisation Bill 2019”
d. The Rajya Sabha passed the Jammu and Kashmir Reorganisation
Act 20194.
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:
3 “Reorganisation Bill”
4 “Reorganisation Act”
a. The Lok Sabha recommended to the President under Article

370 (3) that the special provision in Article 370 shall cease to be
operative and the provision would instead apply all the provisions
of the Constitution to the State of Jammu and Kashmir without
any modifications and exceptions:
“That this House recommends the following public
notification to be issued by the President of India under
Article 370(3):
Declaration under Article 370(3) of the Constitution. In
exercise of the powers conferred by Clause (3) of article
370 read with clause (1) of article 370 of the Constitution
of India, the President, on the recommendation of the
Parliament, is pleased to declare that, as from the date on
which the President of India signs the Declaration and
published in the official Gazette, all clauses of the said
article 370 shall cease to be operative except clause (1)
thereof which shall read as under; namely:-
“All provisions of this Constitution; as amended from time
to time, without any modifications or exceptions, shall
apply to the State of Jammu and Kashmir notwithstanding
anything contrary contained in article 152 or article 308 or
any other article of this Constitution or any other provision
of the Constitution of Jammu and Kashmir or any law,
document, judgement, ordinance, order, bye-law, rule,
regulation; notification, custom or usage having the force of
law in the territory of India, or any other instrument, treaty
or agreement as envisaged under article 363 or otherwise.”
b. The Lok Sabha passed the Reorganisation Act.
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.
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.5
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,6 a Constitution Bench had held that Article
370 was temporary in nature. According to counsel, subsequently in Sampat
Prakash v. State of Jammu & Kashmir,7 another Constitution Bench held
(without considering the earlier decision in Prem Nath Kaul (supra)) that
Article 370 is not a temporary provision because:
a. Neither the Constituent Assembly of Jammu and Kashmir nor the
President had ever made a declaration that Article 370 ceased to be
operative; and
* Ed. Note: PART B.

5 Writ Petition (c) No. 1099 of 2019
6 1959 Suppl (2) SCR 270
7 (1969) 2 SCR 365
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 Kashmir8 ignored the interpretation of Article
370 in Prem Nath Kaul (supra) and, in any event, the judgment does not
decide whether Article 370 can continue to operate after the Constitution
of Jammu and Kashmir was adopted. The Constitution Bench in Dr Shah
Faesal (supra) framed three questions:
“(i) When can a matter be referred to a larger Bench?
(ii) Whether there is a requirement to refer the present matter to a
larger Bench in view of the alleged contradictory views of this Court
in Prem Nath Kaul case [Prem Nath Kaul v. State of J&K, AIR 1959
SC 749] and Sampat Prakash case [Sampat Prakash v. State of J&K,
AIR 1970 SC 1118] ?
(iii) Whether Sampat Prakash case [Sampat Prakash v. State of J&K,
AIR 1970 SC 1118] is per incuriam for not taking into consideration the
decision of the Court in Prem Nath Kaul case [Prem Nath Kaul v. State
of J&K, AIR 1959 SC 749] ?”
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
8 (1972) 1 SCC 536

the interregnum period, before the formulation of the Constitution

of State of Jammu and Kashmir, but after coming into force of the
Constitution of India. The observations made by the Constitution
Bench in this case, regarding the importance given to the decision of
the Constituent Assembly of the State of Jammu and Kashmir needs
to be read in the light of these facts”
43. Second, the framework of Article 370(2) of the Indian Constitution
was such that any decision taken by the State Government, which
was not an elected body but the Maharaja of the State acting on the
advice of the Council of Ministers which was in office by virtue of
the Maharaja’s proclamation dated 5-3-1948, prior to the sitting
of the Constituent Assembly of the State, would have to be placed
before the Constituent Assembly, for its decision as provided under
Article 370(2) of the Constitution. The rationale for the same is
clear, as the task of the Constituent Assembly was to further clarify
the scope and ambit of the constitutional relationship between the
Union of India and the State of Jammu and Kashmir, on which the
State Government as defined under Article 370 might have already
taken some decisions, before the convening of the Constituent
Assembly, which the Constituent Assembly in its wisdom, might
ultimately not agree with. Hence, the Court in Prem Nath Kaul [Prem
Nath Kaul v. State of J&K, AIR 1959 SC 749] indicated that the
Constituent Assembly’s decision under Article 370(2) was final.
This finality has to be read as being limited to those decisions taken
by the State Government under Article 370 prior to the convening
of the Constituent Assembly of the State, in line with the language
of Article 370(2).
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
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.
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.9 It was a political act, in violation of
the Constitution, brought about with the intention to ultimately abrogate
Article 370.10 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
* Ed. Note: PART C.

9 Written Submissions on Behalf of Mr. Kapil Sibal, Senior Advocate.
house. Other parties – the Congress, the PDP and the National Conference
– had, in a fax to the Governor expressed willingness to form a coalition.11
It was incumbent upon the Governor to reach out to the parties and explore
the possibilities of forming a government.12
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.13 The manner in which the Union Government has acted
and the decisions of the Governor and the President were all political
stratagems to achieve outcomes that are unconstitutional. 14
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 Parliament15.
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 report16; 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
11 Written Submissions of Dr. Rajeev Dhavan, Senior Advocate.

12 Written Submissions on behalf of Mr. Kapil Sibal, Senior Advocate.
13 Submissions By Dr. Rajeev Dhavan, Senior Advocate.; Rejoinder on behalf Of Mr.
Kapil Sibal Sr. Advocate.
14 Rejoinder on behalf of Mr. Kapil Sibal Sr. Advocate.
15 Written Submissions of Mr. Dushyant Dave, Senior Advocate; S.R. Bommai vs Union
of India (1994) 3 SCC 1.
16 Submissions By Dr. Rajeev Dhavan, Senior Advocate.
special provisions under the Constitution designated for the

special interests of the North-Eastern States of India.17
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 initio18;
b. The purpose of Article 356 is to restore governance in the State.19
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 state20;
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 repealed or amended “by a competent
Legislature or other authority.” These words presume the power
17 Written Submissions on behalf of Impleader by Manish Tewari & Mr. Abhimanyu

Tewari, Advocate.
18 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.
19 SR Bommai (Paras 108,113, 288, 289),
20 Outline of Submissions on Behalf of the Petitioners by Raju Ramachandran, Senior
Advocate.
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 356.21 Dr. BR Ambedkar clarified that the purpose of the
power under Articles 356 and 357 was to ensure that the “form
of constitution” was maintained22;
d. Article 250(2) states that laws shall cease to have effect after six
months from the date when the Proclamation ceases to operate23.
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 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)24;
21 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;
22 Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the
Petitioner.
Advocate.
Advocate; Synopsis and Written Submissions/ Arguments.
f. This Court in Krishna Kumar Singh v. State of Bihar25 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”26; 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 rule27.
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 Ministers in place. Thus, the COs are undemocratic for
want of public will and public reason.28
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 required29;
25 (2017) 3 SCC 1
26 Written Submissions by Mr Gopal Subramanium, Senior Advocate.
27 Written Submissions of Dr. Rajeev Dhavan, Senior Advocate.
28 Outline of Submissions on Behalf of The Petitioners by Muzaffar H. Baig, Senior
Advocate; Rejoinder on behalf of Mr. Kapil Sibal Sr. Advocate.
29 Written Submissions on Behalf of Mr. Kapil Sibal.
b. Article 370 must be interpreted in the context of three pillars

namely- asymmetric federalism30, autonomy, and consent.31
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 federalism32;
c. Article 370 reflects the agreement between two contracting
parties namely the acceding State of Jammu and Kashmir and
the Dominion of 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 exist33;
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.34
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.35 The reason for
30 Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade.

31 Written Submissions of Mr. Gopal Subramanium, Senior Advocate on behalf of the Petitioner.
32 Submissions on behalf of the petitioners by Senior Advocate Prashanto Chandra Sen.
33 Outline Of Submissions on Behalf Of The Petitioners By Muzaffar H. Baig, Senior
Advocate.
Petitioner.
35 Submissions by Mr Zaffar Shah, Senior Advocate.
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 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).36 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
Constitutions37; 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.38
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
Assembly, Article 370 could not be amended and the Legislative Assembly
could not substitute the Constituent Assembly.39
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.40
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.41 Mr Dinesh
Dwivedi disagreed with the proposition that since the Constituent Assembly
chose to not recommend the abrogation of Article 370, Article 370(3) would
continue to operate after the dissolution of the Constituent Assembly.42 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.43
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 Accession44
whereby though certain matters were acceded to the Union; residual
40 Written Submissions Of Dr. Rajeev Dhavan, Senior Counsel.

41 Written Submissions By Shri Dinesh Dwivedi, Senior Advocate.
44 “IoA”
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 well45;
b. The very recognition of a separate Constituent Assembly for a
state by 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)46;
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.47 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.48 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 Government49;
d. This Court has recognised that internal sovereignty may be divided
by a distribution of legislative powers, which is an essential feature
of federalism50; and
45 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.
46 Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade, Senior Advocate.
48 Submissions on behalf of the Petitioners, Mr Shekhar Naphade, Senior Advocate.
50 SR Bommai vs Union of India; para 97 Submissions On Behalf Of The Petitioners, Mr
Shekhar Naphade, Senior Advocate.
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.51 Read with other proclamations and the
IoA, the Declaration did not take away the Ruler’s sovereignty52.
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 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)53 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.54 The expression ‘Constituent
51 Rejoinder by Mr. Dinesh Dwivedi, Senior Advocate.

52 Rejoinder by Mr. Dinesh Dwivedi, Senior Advocate.
53 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.
54 Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade, Senior Advocate;
Written Submissions of Gopal Sankaranarayanan Senior Advocate on Behalf of the
Assembly’ is not ambiguous and no other meaning can be

ascribed to it55. The Constituent Assembly is completely different
from the Legislative Assembly. The latter is neither a substitute
nor the successor of the former.56 CO 272 is thus a colourable
exercise of the President’s power57;
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)58;
c. The Legislative Assembly had no power under the Constitution of
Jammu and Kashmir to amend any provision of the Constitution
of 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 bars59;
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 manner60;
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
Petitioner.
56 Written Submissions On Behalf Of The Intervenor By Dr. Menaka Guruswamy, Senior
Advocate.
57 Written Submissions On Behalf Of The Intervenor By Dr. Menaka Guruswamy, Senior
Advocate.
58 Submissions by Mr. Zaffar Shah, Senior Advocate; Submissions On Behalf Of The
Petitioners, Mr Shekhar Naphade, Senior Advocate.
59 Written Submissions by Sh. Sanjay Parikh, Senior Advocate.
Petitioner.
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 370.61
However, CO 272 makes amendments to Article 370, through the
backdoor62;
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 less63;
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&K64, 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,
61 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.
Petitioner.
63 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.
64 1959 Supp (2) SCR 270.
Article 367 cannot be used to make any changes to Article 370(3)65;

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 66;
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 67;
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 go, is apparently without any
deliberation68;
m. The Respondents have erroneously relied on Mohd. Maqbool
Damnoo v. The State of Jammu and Kashmir69 to argue that
the Constituent Assembly and the Legislative Assemblies are
interchangeable. In the said case, the Court had held that the
65 Written Submissions On Behalf Of Mr. Kapil Sibal, Sr. Adv; Submissions by Mr.
Zaffar A Shah, Senior Advocate Rejoinder.
66 Written Submissions Of Dr. Rajeev Dhavan, Senior Counsel.
Petitioner.
69 (1972) 1 SCC 536
Governor, being the successor to Sadr-i-Riyasat, can exercise

the same powers as the latter. The reliance on this case is
misplaced70; 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.71
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 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
70 Rejoinder on behalf of Mr. Kapil Sibal Sr. Advocate.

71 Written Submissions of Ms. Nitya Ramakrishnan, Senior Advocate.
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 issued72; and
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 356.73
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 Kashmir74;
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 27275;
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
72 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 Guruswamy, Senior
Advocate; Written Submission On Behalf Of Impleader By Manish Tewari & Mr.
Abhimanyu Tewari.
73 Written Submissions of Gopal Sankaranarayanan Senior Advocate on Behalf of the
Petitioner.
Petitioner.
75 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.
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 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).76 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 India77;
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.78 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 37079;
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 existence80;

Advocate.
78 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.
79 Rejoinder on behalf Of Mr. Kapil Sibal Sr. Advocate.
Advocate.
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 IoA81;
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
Kashmir82; 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.83
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 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

Petitioner; Rejoinder on behalf Of Mr. Kapil Sibal Sr. Advocate.
83 Rejoinder on behalf Of Mr. Kapil Sibal Sr. Advocate.
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 35684;
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 effected85;
c. In any case, even if the second proviso to Article 3 was validly
suspended, it was merely an acknowledgment of the territorial
integrity 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 integrity86;
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 87. The Reorganisation Act violates Article 3;
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. 88 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 Centre89;
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 90;
87 Written Submissions of Mr. Chander Uday Singh, Senior Counsel.

88 Written Submissions of Mr. Chander Uday Singh, Senior Counsel; Submissions On
Behalf Of The Petitioners, Mr Shekhar Naphade, Senior Advocate.
89 D.C. Wadhwa Vs State of Bihar (1987) 1 SCC 378. Written Submissions Of Mr.
Dushyant Dave, Senior Advocate.
g. The Reorganisation Act has the effect of bringing the following

changes: 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.91 A law that,
inter alia, denudes the state of its legislative assembly such as
the impugned Act cannot be brought under Article 392;
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
democracy93;
i. The purpose of Article 3 must be read in accordance with the
State Reorganisation Report 1955. The Report suggested that the
demarcation of Indian States into Part A, B, C and D states was
not feasible. Thus, the Constitution (Seventh Amendment) Act
195694 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
States95;

94 “Seventh Constitution Amendment”
j. There were historical and cultural reasons to designate certain

territories as Union Territories and not full-fledged states96. 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 the federal
structure97; 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.98
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

97 Written Submissions of Mr. Chander Uday Singh, Senior Counsel; Written Submissions
on Behalf of Mr. Kapil Sibal.
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
Commission99;
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 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 Act100; 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 India102
35. The process of constitutional integration of Jammu and Kashmir
bears all the resemblance with the process of constitutional integration of
99 (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.
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.
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 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, Parliamentary debates, the gradual issuance
of constitution orders. The other provisions of the Part XXI are named
either “special provisions” or “transitory provisions”.109
103 Written Submissions of Mr. R. Venkataramani, Attorney General for India

109 Written Submissions of Mr. Tushar Mehta, Solicitor General of India
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 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);
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 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 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
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
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.
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 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

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
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
69. The suffi ciency 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 “modifi cation” 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

135 Written Submissions of Mr. Tushar Mehta, Solicitor General of India; Written
Submissions of Ms. Divya Roy, Advocate
140 Written Submissions of Mr. Vikramjeet Banerjee, Additional Solicitor General of
India
of Section 147 of the State Constitution, the legislative assembly is

equally competent to provide the requisite recommendation under Article
370(3). 141
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
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
141 Written Submissions of Mr. Vikramjeet Banerjee, Additional Solicitor General of

India
142 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
147 Written Submissions of Mr. Bimal Roy Jad, Senior Advocate
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
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
* Ed. Note: PART D.

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
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;
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.
E*. Analysis
i. The State of Jammu and Kashmir did not possess sovereignty
* Ed. Note: PART E.

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.
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
153 See, for instance, Dicey, Law of the Constitution (8th ed. 1915); Austin, Jurisprudence
(4th ed. 1873); John Dickinson, A Working Theory Of Sovereignty I, Political Science
Quarterly, Volume 42, Issue 4, December 1927, Pages 524–548;
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 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:
154 Dicey, Law of the Constitution (8th ed. 1915) at 70

155 Union of India v. Sukumar Sengupta, 1990 Supp SCC 545
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>
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;
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:
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
158 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1; State (NCT of Delhi) v. Union
of India, (2018) 8 SCC 501
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 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.
159 Shiva Rao, The Framing of India’s Constitution, IV, pp. 3-4
160 State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501
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, 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…”
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 ‘Establishment of Federation and Accession of Indian States’. Section 5
provided for the Proclamation of the Federation of India.161 Section 6 enabled
161 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,
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 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
amounts to at least one-half of the total population of the States as so ascertained, have
acceded to the Federation.
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 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;
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
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 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 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 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
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 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.”
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.”
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.
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;
(c) Centrally-merged 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.”
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 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 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
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
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”
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 26th
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:
“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)
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 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 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;
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.”
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. 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
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;
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
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
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
165 17 November 1956, Debates of the Constituent Assembly of Jammu and Kashmir
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 Constitution167 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
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.”
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…”
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.
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 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
168 SBI v. Santosh Gupta, (2017) 2 SCC 538

(c) the provisions of the Constitution of India as applicable in relation

to the State;
shall be introduced or moved in either house of the Legislature.”
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 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 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:
169 (2017) 2 SCC 538

“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 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.
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 diff ering 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 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 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 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 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.”
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 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 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. 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 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 exercise
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.
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 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;
(c) make such incidental and consequential provisions as appear to the
President 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 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
172 State of Rajasthan v. Union of India (1977) 3 SCC 392 and SR Bommai v. Union of
India, (1994) 3 SCC 1
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 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
173 Article 356(3)

174 Article 356(4)
175 Article 356(4)
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 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.
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
176 Article 256(5)

177 First proviso to Article 356(4)
in State of Rajasthan v. Union of India178 to a decision of a nine-Judge

Bench in SR Bommai v. Union of India179.
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:
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
178 (1977) 3 SCC 392

179 (1994) 3 SCC 1
180 Chief Justice Beg (paragraph 45)
181 Justice Bhagwati (paragraph 150)
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
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 unconstitutional186 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.
187. In SR Bommai (supra), this Court extensively dealt with the scope
of the Presidential power under Article 356. On numerous questions of law,
184 Justice Bhagwati (paragraph 146)

185 Chief Justice Beg (paragraph 89); Justice Bhagwati (paragraph 146)
186 Justice YV Chandrachud (paragraphs 125 and 126)
187 Justice Fazl Ali (paragraph 218)
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) 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:
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
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 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 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
191 Justice Reddy (paragraph 292)

192 Justice Sawant (paragraph 114)
Bommai (supra) holds the field because it was rendered by a Bench

of nine Judges while the 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
(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.
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:
“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 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 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 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 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.
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
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 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;
193 Article 358

194 Article 359
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 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.
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:
195 Article 353

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 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);
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.
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 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 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
196 S.R. Bommai v. Union of India 1994 (3) SCC 1 [108].

elected representatives in the State, 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 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 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
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 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
Orissa197 and T Venkata Reddy v. State of Andhra Pradesh198 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 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
197 AIR 1962 SC 945

198 (1985) 3 SCC 198
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 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.”
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 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
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 amendment199; (b) election of the President by elected members of
the Legislative Assemblies of the State200; (c) election of the representatives
of each State to the Rajya Sabha by the elected members of the Legislative
Assembly of the State201; 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 upon202.
222. As we have noted above, Article 356(1)(b) does not make a
distinction between legislative and constitutional powers. Clause (b) of
199 First proviso to Article 368(2)

200 Article 54
201 Article 80(4)
202 Article 252
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.
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;
(c) for the President to authorise when the House of the People is 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;
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 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 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 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
Poll203 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 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:
203 (1974) 2 SCC 33

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 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.
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, 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.”
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 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 Back204”
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.
…
October 24th 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 23rd 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
204 Har-Anand Publications Private Limited reprint 2023

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 24th 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 15th 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 25th 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.
…
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.
…
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
205 Page 154

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 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 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 Muzaff arabad. 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.
206 Orient Longmans (1961)

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.
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 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 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
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;
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.
II. The constitutional integration of Indian States
a) Internal Constitutions of States
247. The Draft Constitution of India 1948207 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
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)
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
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
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
209 ibid
210 See Report of the Committee for the Drafting of a Model Constitution for the Indian
States (March 22 1949)
211 B Shiva Rao, The Framing of India’s Constitution: A Study, Pg. 552
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 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
212 Constituent Assembly Debates (Volume 10; 12 Oct 1949)

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.
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:
213 Shiva Rao, Pg. 211

214 White Paper on Indian States (July 5 1948) 77
215 Shiva Rao, pg. 991
“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.
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.
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 Constitution216
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
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.
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
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
217 Shiva Rao, pg. 991

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 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)
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 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.
220 ibid
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 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 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:
“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 :
“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 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 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 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.
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.
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
221 (1955) 1 SCR 415

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 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 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.
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 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 :
222 The Constitution (Thirteenth Amendment) Act 1962 came into force on 1 December
1963’ “Thirteenth Amendment”
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 fees223.
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 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.
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)
(b)
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.
283. Article 372225 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 amendment to bring such laws in conformity with the Constitution.
Originally this period for making adaptations and modifications was two
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.
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 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 Parliament226.
226 “379. Provisions as to provisional Parliament and the Speaker and Deputy Speaker
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 India227.
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 –
The members chosen to represent any State or other territory for which representation
is provided under clause (2), and
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
(c) the qualifications to be possessed by such representatives.
(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).”
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
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 office228.
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.
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.”
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.
(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
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 appointed230.
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 385232 and 386233.
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.”
“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.”
“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
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 President234. 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 Legislature235.
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.
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 shall on such commencement become, and shall continue to
hold office as, members of the Council of Ministers of such Rajpramukh under the
Constitution.”
“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.”
“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.”
“390. – Moneys received or raised or expenditure incurred between the commencement
of the Constitution and the 31st day of March, 1950.- The provisions of this
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 Parliament238.
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 applicable to
the authorization of expenditure from the revenues of the corresponding Indian State
immediately before such commencement.”
“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:
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 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
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 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;
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 Justice G P Singh’s “Principles of
Statutory Interpretation239”. 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
239 14th Edition, Pages 188-189

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 Bihar244,
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 noted that Article 286 with several Articles is grouped
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
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 Mukherjea in Kesavananda Bharati Sripadagalvaru v.
State of Kerala246. 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
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”.
246 (1973) 4 SCC 225
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 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 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 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
247 Article 152

“In this Part, unless the context otherwise requires, the expression “State” does not
include the State of Jammu and Kashmir”.
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
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 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
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:
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);
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”;
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);
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). 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 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 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 petitioners248 is that Article 370 was only
temporary when the Constituent Assembly of the State was in existence, that is,
248 W.P. (C) No. 1037 of 2019: Mohd Akbar Lone & Anr. v. Union of India & Ors.
between 1951 to 1957. The power under Article 370(3) ceased to exist after the
dissolution of the Constituent Assembly. However, the respondents argue 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 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 Kashmir249,
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
249 (1969) 2 SCR 365

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 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:
“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 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 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 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.
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 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 India250, 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 Kashmir was substituted for Parliament so that the
250 1955 (2) SCR 1101; “Puranlal Lakhanpal I”

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.”
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 India251 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 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
251 1962 (1) SCR 688; “Puranlal Lakhanpal II”

Delhi Laws Act252 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. 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)
252 (1951) SCR 747

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 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 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 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
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 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 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 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.
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 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 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
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.
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 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 Council254 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 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:
254 Section 46 of the Constitution of Jammu and Kashmir

255 Section 47 of the Constitution of Jammu and Kashmir
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 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 India258 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.
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
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).
proviso requires the President to issue orders which relate to matters other
than those 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 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 statutes260 and is undoubtedly applicable to the Constitution.
The principle 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 –
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
261 State of Uttar Pradesh v. Singhara Singh, 1963 AIR 358
(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;
(c) references to the Government of the said State shall be 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)
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.”
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
(c) any of the Lists in the Seventh Schedule, or
(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
262 1951 SCC 966

contemplated by the proviso to Article 368(2) because the impugned articles

curtailed the powers 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)
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
263 1964 SCC OnLine SC 25

264 1992 Supp (2) SCC 651
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) 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 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
265 Paragraph 162: “…Thus, this Dextinction 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)
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.
…
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 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.
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 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
267 Martin Loughlin, ‘On constituent power’ in Michael W. Dowdle and Michael A.
Wilkinson (eds.) Constitutionalism Beyond Liberalism, Cambridge University Press,
2017
268 (2007) 2 SCC 1
269 1975 Supp SCC 1
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 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 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 artificially270 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 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
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
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 India272 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:
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
(c) in relation to any other State specified in Part B of the First 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,”
272 (1971) 1 SCC 85

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.
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 2/3rd 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 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
273 The Constitution (Twenty-sixth) Amendment Act 1971

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 India274 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.
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
274 1994 Supp (1) SCC 191

275 Constitution (Twenty-sixth Amendment) Act 1971
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.”
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:
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 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 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
276 (1973) 4 SCC 225

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.
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
277 “CO 44”

278 “CO 48”
279 “CO 56”
280 “CO 74”
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:
“(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;
(c) references to a High Court shall include references to the High
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 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 Require- V Samvat, 2009
ment Orders (Validation) Act,
2009
Vegetable Seeds Act, 2009 XII Samvat, 2009

Prohibition of Smoking (Cine- XVIII Samvat, 2009

ma and Theatre Halls) Act, 2009
Utilization of Lands Act, 2010 IV Samvat, 2010

Enemy (Confiscation of Prop- III Samvat, 2011
erty) ] Ordinance (Repeal) Act,
2011
Anand Marriage Act, 2011 IX Samvat, 2011
Town Area Act, 2011 XVII Samvat, 2011
Kahcharai Act, 2011 XVIII Samvat, 2011
Transfer of Land (Validating) XXVI Samvat, 2011

Act, 2011
Village Panchayat (Levy of XXVII Samvat, 2011
Dharat) Validation Act, 2011
Opium Smoking Act, 2011 XXXVII Samvat, 2011
Natural Calamities Destroyed XXXVIII Samvat, 2011
Areas Improvement Act, 2011
Pharmacy Act, 2011 LIII Samvat, 2011
Registration (Amendment and VI 1955
Validation of Transfer of Prop-
erty) Act, 1955
Hindu Marriage Act, 1955 IV 1955
Legislative Assembly (Speakers IV 1956
Emoluments) Act, 1956
Ministers and Ministers of State VI 1956
Salaries Act, 1956
PARTICULARS
Habitual Offenders (Control XI 1956
and Reform) Act, 1956
Prize Competitions Act, 1956 XII 1956
Civil Servants (Removal Doubts XIV 1956

and Declaration of Rights) Act,
1956
Government Servants (Held in XV 1956
Detention) Act, 1956
Registration of Deeds (Valida- XXI 1956
tion) Act, 1956
Deputy Speakers and Deputy XXIV 1956
Chairman’s Emoluments Act,
1956
Common Lands (Regulation) XXIV 1956
Act, 1956
Chowkidari Act, 1956 XXXVII 1956
Hindu Succession Act, 1956 XXXVIII 1956
Nurses, Midwives and Health XLI 1956
Visitors Registration Act, 1956
Christian Marriage and Divorce III 1957
Act, 1957
Representation of People Act, IV 1957
1957
Deputy Ministers Salaries and VI 1957
Allowance Act, 1957
Hindu Minority and Guardian- VII 1957
ship Act, 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 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);
(c) in clause (c) as so re-lettered, in new clause (4) of Article 367, -

(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.
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
“(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
(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
(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 Kashmir281 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 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
281 (1972) 1 SCC 536

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 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.”
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
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, 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 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-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 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 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 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 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 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.
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
433. On 26 January 1950, the President issued the Constitution

(Application to Jammu and Kashmir) Order 1950283 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],
• 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 1954284, in supersession of CO 10 as amended from
time to time. Paragraph 2 set out those provisions of the Constitution which
283 “CO 10”

284 ‘CO 48”
in addition to Article 1 and Article 370 would be applicable to the State

of Jammu 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
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:
the State of Jammu and Kashmir-
References to this Constitution or to the provision thereof shall be
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
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 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],
• 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.
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.
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.
• 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-
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.
(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.”:
(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 (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 33285 and 34286 became available within the
Legislative domain of Parliament without modifications. Entries 4 287, 11288
and 35289 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-
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;
(c) cattle fodder, including oilcakes and other concentrates;
(d) raw cotton, whether ginned or unginned, and cotton seed; and
(e) raw jute.
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.

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;
(c) references to a High Court shall include references to the High Court
(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 44290 was made available to Parliament. In the
Concurrent List, Entries 24291 and 26292 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 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 19th Amendment was applied with suitable exceptions and
modifications. On 5 May 1967, certain incidental changes were made in regard
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.
to the applicability of the Seventh Schedule in terms of which Entry 19293 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 21st Amendment was
applied with suitable exceptions and modifications as on date.
451. On 26 December 1967, Entries 16294 and 18295 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 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 21st Amendment
to the Constitution and Section 5 of the 23rd Amendment came to be applied.
Clause 3 of Article 32 of the Constitution was omitted and Part VI was applied
with suitable modifications296. On 8 November 1971, as a consequence of
CO 90 a minor change was made to the Concurrent List and Entry 43297. On
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.
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.
29 November 1971, the 24th Amendment to the Constitution was applied by

CO 91.
453. On 24 February 1972, as a result of CO 92, Entry 60298 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, postal articles, including money orders,
phonograms and telegrams299. As a consequence Entry 97, the residuary
entry in the Union List was applied in a modified form300.
454. As a result of CO 94 issued in 1972, the amendments to the
Constitution until the 26th 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
List301 was applied without modifications while Entries 36 (Factories), 40
298 Sanctioning of cinematograph films for exhibition.

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.
(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 26th Amendment and Section 2 of the 30th and 31st
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 India302. 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 26th, 30th, 31st, 33rd and 38th Amendments to
the Constitution as specified.
458. On 12 October 1976 upon the issuance of CO 105, the
application of the 26 th, 30th, 31st, 33rd, 38th and 39th Amendments was
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.
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 25th Amendment and the 40th 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 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 List303 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 Tax304 (Extension to Jammu and
Kashmir) Ordinance 2017, resulted in the CGST305, SGST306 and IGST307
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;
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
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
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
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 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 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 legislature308 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.
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
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 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’ Provinces312 (and some princely states) which
were 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
312 Under the Government of India Act 1935

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
Commission314 to 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
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”
315 Ministry of Home Affairs, Resolution dated 29 December 1953
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;
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
316 Paragraph 20, Report of the States Reorganisation Commission 1955

317 Summary and Conclusions, Report of the States Reorganisation Commission 1955
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 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 India320 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
318 (2006) 7 SCC 1

319 (2023) 9 SCC 1
320 (2018) 12 SCC 170
proposed 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 in governance. This conception of
democracy is fortified by Article 1(1), which states:
321 Constituent Assembly Debates, Volume 7, 4 November 1948

“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.
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 Councils325 in addition) with a Governor who acts on the aid and
advice of the Council of Ministers.326 In contrast, only some Union territories
322 Article 1(1), Constitution of India

323 (2018) 8 SCC 501
324 Article 168
325 Ibid
326 Articles 153 and 163,
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.
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
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
to undertake.332 It 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:
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)
332 Ibid
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
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 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.
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
338 Section 2, Constitution (Seventh Amendment) Act 1956

340 State of Mizoram Act 1986; State of Arunachal Pradesh Act 1986
341 Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Act 1973
494. Goa, Daman and Diu were added to the First Schedule as a Union
Territory in 1962342 as was Puducherry (previously known as Pondicherry).343
In 1966, 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 segments of the document. It is only when
342 Constitution (Twelfth Amendment) Act 1962

343 Constitution (Fourteenth Amendment) Act 1962
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
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 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.
347 Article 3 was amended multiple times. The proviso was substituted in 1955.
Explanations I and II were added in 1966.
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 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
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
357 Uttar Pradesh Reorganisation Act 2000
358 Bihar Reorganisation Act 2000
359 Andhra Pradesh Reorganisation Act 2014
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. 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
360 Kuldip Nayar v. Union of India 2006 (7) SCC 1 [52]

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 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 Parliament cannot alter
the division of powers between the Union and all States absent a constitutional
361 2011 (13) SCC 344.

362 Constitution of India (1950), Article 368(2).
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.
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.
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
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 Bombay363 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 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
363 AIR 1960 SC 51

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.
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.
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;
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;
* Ed. Note: PART F.
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;
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;
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.
516. Pending application(s), if any, stand disposed of.
SANJAY KISHAN KAUL, J.
INDEX*
Kashmir (Kas’mira) 8
Prelude 16
Instrument of Accession and the Constituent Assembly
18
Debates
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 45
Jammu & Kashmir.
A. The evolution of constitutional 45
relationship between the Union and the
State of Jammu & Kashmir prior to the
impugned executive actions
B. Article 370 had assumed permanence in 48
the Constitution of India
C. The effect of Article 370(3) of the 52
Constitution
2. The Impugned Executive Orders are not 55
competent to alter the relationship between the
State and the Union:
A. C.O. 272 is illegal and mala fide 56
B. C.O. 273 is illegal and mala fide 58
C. Improper exercise of power under 59
Article 356 of the Constitution while
issuing C.O. 272 and C.O. 273
3. The big question mark of even altering the 60
status of the State to Union Territory.
A. Article 3 of the Constitution does not 60
warrant the power to convey a State into
Union Territory
B. The suspension of proviso to Article 3 62
was illegal
* Ed. Note: Pagination is as per the original judgment.
The Constitutional defense of the respondents 64

1. The nature of the Constitutional relationship between
the Union and the State of Jammu and Kashmir prior to 64
the impugned Executive actions.
A. No semblance of sovereignty remained
with the State of Jammu & Kashmir, as its 64
integration was complete
B. Article 370, both from the Part in which
it falls (Heading) as well as reading of the 67
transitional provision
C. Article 370(3) – How it works out? The
proviso to Article 370(3) became otiose 69
once the State Constituent Assembly
dissolved itself
2. Whether the relationship could be altered by 72
the impugned Executive orders.
A. C.O. 272 is intra vires 72
B. C.O. 273 is intra vires 74
C. Permissible exercise of power under 74
Article 356 while issuing C.O. 272 and
C.O 273
3. Whether the alteration from a State to a Union 75
Territory was permissible?
A. Article 3 grants Parliament the power 75
to convert a State into a Union Territory
B. The suspension of the proviso to Article
3 was permissible 77
Resolution of Constitutional Dilemma 78
1. The Constitutional Relationship between the 79
Union and the State of Jammu and Kashmir prior
to the impugned actions.
A. The concept of internal sovereignty 79
after the IoA
B. Article 370 of the Constitution as a 81
temporary provision
C. The effect of Article 370(3) 90
[SANJAY KISHAN KAUL, J.]
2 Article 370(3) after the dissolution of the 91

Constituent Assembly of the State.
A. Article 370(3) continues to operate 91
B. The President can exercise their 92
power under sub-clause (3) without a
recommendation from the Jammu and
Kashmir Constituent Assembly
3. The issuance of CO 272. 95
A. The power under Article 370(1)(d) read 95
with Article 367 was improperly exercised
B. Concurrence with the Government of
the State was not necessary to apply all the 100
provisions of the Constitution of India to
the State
4. Whether the exercise of power under Article 356 102

was permissible while issuing COs 272 and 273.
A. Article 356 can be imposed once the
Legislative Assembly had been dissolved 102
B. Article 356 permits the President to
make irreversible changes 103
C. The President reserves both legislative
and non-legislative powers after the 104
proclamation of emergency
5. The extent of powers under Article 3 and the 108

constitutionality of the Reorganization Act.
A. The Parliament’s authority to alter or 108
extinguish a State under Article 3
B. Suspension of the first proviso to Article 110
3 was permissible during President’s rule
CONCLUSION 111
EPILOGUE 114
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.1
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.2 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.3 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.4
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
Route, connecting China with southern Europe.5 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. 6
4. In much later periods of time, Thomas Moore (18th Century AD)
introduced Kashmir to the Western world in his famous poem ‘Lalla Rookh’
(1817)7 with these words:
1 As per the Rajatarangini (The River of Kings) of Kalhana and Nilamatpurana,

believed to be composed by Candra Deva.
2 P.N.K Bamzai, Culture and Political History of Kashmir: Ancient Kashmir,
vol. 1 (M.D. Publications Pvt. Ltd., New Delhi 1994) 16.
4 A.R. Nazki, ‘In Search of Roots’ in S.S. Toshkhani & K. Warikwoo (eds.),
Cultural Heritage of Kashmiri Pandits (Pentagon Press 2009) 145.
5 Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold Story, (Bloomsbury
India 2019) 1-2.
6 Ibid at 3.
“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.8
The mountains provide a wall of protection to the Valley and Kalhana speaks
of Kashmir as unconquerable by the force of soldiers.9 The Chinese travelers
(Hiuen Tsang and Ou-Kong), thus, refer to the difficulty of coming through
the mountain passes.10 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 14th 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.11 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 19th century. The unifiers
vol. 1 (M.D. Publications Pvt. Ltd., New Delhi, 1994) 16.

vol. 1 (M.D. Publications Pvt. Ltd., New Delhi, 1994) 1-2.
vol. 1 (M.D. Publications Pvt. Ltd., New Delhi, 1994) 10.
11 Walter R. Lawrence, The Valley of Kashmir (Oxford University Press 1895)
284, 296, 300, 302.
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.12
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.13
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’. 14
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.15 This was prior to the advent of
Islam in the 14th century, when the Zoji-la Pass acted as a route for successful
invasions of Kashmir. The early 14th century saw the forays of the Turk Dulca
and Bhautta Rincana. About two centuries later, Mirza Haider Dughlat, with
his small Mughal force, successfully fought his entrance into Kashmir, in
1533 AD.16 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
12 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.
16 Durgaprasad (ed.), The Rajatarangini of Kalhana, vol. 2 (1894) 408.
in a happy blending of cultures which were tolerant and sympathetic towards

the ideas and beliefs of others.17 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.18 Sheikh Nur-ud-Din Wali, originally known
as Nund Rishi preached and practised a faith of tolerance and inclusivity,
Kashmiriyat.19 The Brahmins were, and are, popularly called Kashmiri
Pundits.20 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. 21
Religious persecution made them leave the Valley en masse for the plains
on many occasions,22 but in subsequent peaceful reigns, like that of Sultan
Zain-ul-abidin, they returned to their original homeland.23
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, 24 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. 25 As

India 2019) 3.
20 Monier-Williams, Modern India and the Indians (3rd edn., Trübner and Co.
1879) 151.
21 A.R. Nazki, ‘In Search of Roots’ in S.S. Toshkhani & K. Warikwoo (eds.),
Cultural Heritage of Kashmiri Pandits (Pentagon Press 2009) 2.
India 2019) 3.
India 2019) 3.
25 VP Menon, The Story of the Integration of the Indian States (Orient Longmans
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).26 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 1846.27 Meanwhile, in the latter half of the 18th 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 a dependency.28 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 1822.29 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.30 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
Pvt. Ltd. 1956) 390.

26 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.
Pvt. Ltd. 1956) 390-391.
Pvt. Ltd. 1956) 390-391.
India 2019) 3.
Pvt. Ltd. 1956) 390-391.
power in 1947.31 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 later, was
transformed into the ‘National Conference’, having representation from all
communities.32
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 7.9.1939,33 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.34 Executive functions under the Act were vested
with a Council consisting of the Prime Minister and such other Ministers as
appointed by the Maharaja.35 The Act also provided for the establishment
of a High Court (which, in fact, had already been established in 1928), 36
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.37
Pvt. Ltd. 1956) 392.
Democracy (Picador 2008) 60.
India 2019) 24.
34 Sections 5 & 23 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) 41, 44.
35 Section 7 of the Jammu & Kashmir Constitution Act, 1939. See also Justice
Comments (3rd edn., Universal Law Publishing Co. Pvt. Ltd. 1998) 42.
36 Justice A.S. Anand, The Constitution of Jammu & Kashmir: Its Development
& Comments (3rd edn., Universal Law Publishing Co. Pvt. Ltd. 1998) 50.
37 Section 56 of the Jammu & Kashmir Constitution Act, 1939. See also Justice
Comments (3rd edn., Universal Law Publishing Co. Pvt. Ltd. 1998) 51.
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. 38 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.39 The State of Jammu & Kashmir had
the biggest area in India with a predominantly Muslim population ruled
by a Hindu King.40 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
stupendous achievement brought about by wisdom, foresight and hard
work.41 But Junagadh, Jammu & Kashmir and Hyderabad proved to
be a challenge, as by 15.8.1947, none of these three had acceded to
India.42 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
38 Point 15 of the Cabinet Mission Plan, 1946.

India 2019) 49.
40 V.P. Menon, The Story of the Integration of the Indian States (Orient Longmans
Pvt. Ltd. 1956) 394.
42 Bipin Chandra, Mridula Mukherjee & Aditya Mukherjee, India After
Independence 1947-2000 (Penguin Books 2007) 92.
either the Indian or Pakistani Dominion.43 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.44 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.45
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 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. 46 Lord Mountbatten accepted the accession, with
the caveat that there would be a plebiscite to ratify the accession.47 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.”48
India 2019) 46.
45 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.
Independence 1947-2000 (Penguin Books 1999) 93-94.
India 2019) 80.
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
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 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

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
Tඁൾ ආൺඍඍൾඋඌ ඐංඍඁ උൾඌඉൾർඍ ඍඈ ඐඁංർඁ ඍඁൾ Dඈආංඇංඈඇ Lൾ඀ංඌඅൺඍඎඋൾ ආൺඒ
ආൺ඄ൾ අൺඐඌ ൿඈඋ ඍඁංඌ Sඍൺඍൾ
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.
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.
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 26th October has been delivered to
me by Mr. V.P. Menon. In the special circumstances mentioned 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 21.2.1948.49 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 United
Nations.50 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, 1949.51 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
49 ‘Draft Constitution of India, 1948’ (Constituent Assembly Debates) <https://

www.constitutionofindia.net/historical_constitutions/draft_constitution_of_
india__1948_21st%20February%201948>.
50 A.G. Noorani, The Kashmir Dispute 1947-2012, vol. 2 (Tulika Books 2013)
77-80.
51 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.
(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
(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.
(c) the provisions of article I of this Constitution shall apply in 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:
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 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.52 On 25.11.1949, Yuvraj Karan Singh, as regent, issued

a proclamation accepting the new Constitution of India.53 A 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.54 In August, 1951, elections were conducted for the
constitution of the Constituent Assembly. The only effective opposition
group to the National 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.55
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 &
Kashmir.56 This Report recommended the termination of the institution of

(Oxford University Press, India 2014) 48, 49.
(Oxford University Press, India 2014) 78.
(Oxford University Press, India 2014) 95.
India 2019) 100.
hereditary rulership, and of providing for an elected head of State, which was
eventually accepted by the Constituent Assembly of Jammu & Kashmir.57
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.58
23. The Delhi Agreement was finally entered into in the July of
1952, between the Government of India and the Government of Jammu
& Kashmir,59 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 State with regard
to all other subjects was to be preserved.60 Contra to the other States, the
residuary powers vested in the State of Jammu & Kashmir itself.61
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
(Oxford University Press, India 2014) 111-113.

(Oxford University Press, India) 117-120, 217-223.
401.
India 2019) 102-103.
61 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.
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.62
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 dismissed
as the Prime Minister and a new Government immediately put in place,
headed by Bakshi Ghulam Mohammed, with Sheikh Abdullah put under
arrest.63 He was finally released only in April, 1964.64 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
62 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.
63 A.G. Noorani, The Kashmir Dispute: 1947-2012, vol. 1 (Tulika Books 2013)
44.
Independence 1947-2000 (Penguin Books 2007) 418-419.
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,
“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;
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.
.... …. …. …. …. ….
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 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 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
(c) the provisions of the Constitution of India as applicable, in 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 & 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.65 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.66
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 & Kashmir. This led to the
fall of Sheikh Abdullah’s Government in March 1977 and imposition of
Governor’s Rule.67 However, Sheikh Abdullah’s National Conference came
back into power in the 1977 state elections.68
65 David E. Lockwood, ‘Kashmir: Sheikh Abdullah’s Reinstatement’ (1975)

31(6) The World Today, 250 <https://www.jstor.org/stable/40394860?seq=1>.
(Oxford University Press, India) 16-17.
(Oxford University Press, India) 17.
68 Surinder Mohan, ‘Democracy in Jammu and Kashmir 1947-2008’ 2012 16(3)
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.69 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.70 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
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,71 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.
World Affairs, 104 < https://www.jstor.org/stable/48504940>.

543.
70 P.N.K Bamzai, Culture and Political History of Kashmir: Modern Kashmir,
71 ‘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>.
33. Re-establishment of democracy was sought to be affirmed by the

elections held in 1996.72 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).
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
72 Surinder Mohan, ‘Democracy in Jammu and Kashmir 1947-2008’ 2012 16(3)

World Affairs, 112-113 < https://www.jstor.org/stable/48504940>.
the State. 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 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
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.
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 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 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.
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 India73
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. The observations made in Sampat Prakash
v. State of J&K74 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.
73 1994 Supp (1) SCC 324

74 1969 (2) SCR 365
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 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 Kerala75
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 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
75 (1973) 4 SCC 225

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 Prakash76 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 Anr77.
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&K78 and Sampat Prakash79 case.
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.
76 supra
77 (2020) 4 SCC 1
78 1969 Supp (2) SCR 270
79 supra
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 Ayyangar extracted in Prem Nath Kaul80
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.81
iv. A distinction was sought to be carved out between the Instrument
of Accession and the Merger Agreement. Historically, 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
80 supra
81 Prem Nath Kaul (Para 38)
Chandra Deb v. State of Orissa82 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 India83
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.
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 Bharati84 case.
viii. The observations made in the State Bank of India v. Santosh
Gupta85 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
82 1962 Supp (1) SCR 405

83 (1971) 1 SCC 85
84 (supra) para 2072
85 (2017) 2 SCC 538
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 Kaul86.
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:
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). The principle of Miller v.
Queen87 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
86 supra
87 (2019) UKSC 41
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 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.88 and Kesavananda Bharati89
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 India90
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 Bharati91 case and, thus,
observations which set to dilute that principle in Puranlal Lakhanpal92
case have to be treated as per incuriam.
88 1951 SCC 568

89 supra
90 (1962) 1 SCR 688
91 (supra) para 2072
92 (supra)
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 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 State93. The mechanism of
Article 356 of the Constitution was confined to a method for restoration
of elected Government i.e., restoration of the democracy94.
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.
93 Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1

94 S.R. Bommai v. Union of India, (1994) 3 SCC 1, (Para 108 By Sawant, J.)
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 subsist95.
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’. 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
95 K.N. Rajgopal v. M. Karunanidhi, (1972) 4 SCC 733

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 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 (18th 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 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.
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.
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 India96, which upheld the
Constitutional validity of the Constitution (Twenty-sixth Amendment)
Act of 1971. This judgment in Madhavrao Scindia’s case97 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.
96 1994 Supp (1) SCC 191

97 supra
v. In State of West Bengal v. Union of India98, 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 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
98 (1964) 1 SCR 371

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.
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.
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.
iv. The observations in Puranlal Lakhanpal99 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
Prakash100 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.
vii. There were only two Constitutionally compliant methods of reading
Article 370 – a) Reading in an unfettered plenary power of the President
99 (supra)
100 (supra)
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.
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 & Kashmir101, where the Constitution
Bench of this Court upheld the substitution of Sadar-i-Riyasat for
Governor in C.O. 74.
101 (1972) 1 SCC 536

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 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 welcomed102.
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
102 Raghunath Ganpatrao’s case (supra)

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 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
Khan v. Union of India103, 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 State104.
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 amendment105. 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 Legislature106.
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 concurrence107. In effect,
views are to be taken from the entire nation via the 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.

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)
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.
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 India108. 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
108 AIR 1970 Del 178

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:
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 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
109 supra
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 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 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 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 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 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; 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 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.
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.
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 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.
110 (supra)
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, 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, 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
B. The President can exercise their power under sub-clause
(3) without a recommendation from the Jammu and Kashmir
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).
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
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.
111 The Constitution (Seventh Amendment) Act, 1956.

112 Black’s Law Dictionary, (VI Edition, 1990).
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 modified
Article 367 by adding Article 367(4). Article 367(4), after C.O. 272, reads
as follows:
the State of Jammu and Kashmir –
(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;
(c) 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; 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””
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 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 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,
113 (1955) 2 SCR 1101

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 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
114 (supra).
115 (supra).
116 (supra)
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
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
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 160120 and 162121 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.
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
117 The Constitution (Application to Jammu and Kashmir) Amendment Order,

1989.
1993.
1994.
1995.
1996.
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.
97. The petitioners strongly relied upon the observations in Thiru K.N.
Rajgopal v. Thiru M. Karunanidhi & Others122 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.
Bommai123 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
122 (1972) 4 SCC 733

123 (supra)
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 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.
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
124 (supra)
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. 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.
125 Constituent Assembly Debates, Vol. VII, Pg 34

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 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. Bommai126 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.
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.
126 (supra)
127 (2006) 2 SCC 1
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.
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
128 (1964) 1 SCR

129 (1960) 1 SCR 605
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 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 Parliament. Therefore, it was not possible to take
the views of the State Legislature. We may refer to the judgment in
Manohar Lal130 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;
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.
130 (supra)
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 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 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 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.
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
131 M. Klinkner and H. Davis, Tඁൾ Rං඀ඁඍ ඍඈ ඍඁൾ Tඋඎඍඁ ංඇ Iඇඍൾඋඇൺඍංඈඇൺඅ

Lൺඐ: Vංർඍංආ’ඌ Rං඀ඁඍඌ ංඇ Hඎආൺඇ Rං඀ඁඍඌ ൺඇൽ Iඇඍൾඋඇൺඍංඈඇൺඅ Cඋංආංඇൺඅ
Lൺඐ,
the results of the investigation. 132 Additionally, truth-telling provides

an opportunity for victims to narrate their stories, which facilitates an
acknowledgement from those 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.
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
132 Id. at 63.

133 A.Sachs, Sඍඋൺඇ඀ൾ Aඅർඁൾආඒ ඈൿ Lංൿൾ ൺඇൽ Lൺඐ, 155 (OUP, 2009).
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
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:
134 RG Tietel, Transitional Justice and Transformation of Constitutionalism in

Gඅඈൻൺඅංඓංඇ඀ Tඋൺඇඌංඍංඈඇൺඅ Jඎඌඍංർൾ, (OUP, 2014).
135 Velasquez Rodriguez v Honduras, (Ser. C) No. 4 (IACHR) 1988.
136 (1997) 6 SCC 241
“Judges do not cry. Archbishop Tutu cried. It was not a court of

law in the sense of an austere institution making highly formalized
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 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
137 (supra)
138 With apologies to the song, “Que Sera, Sera”, a song by Jay Livingston and
Ray Evans.
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
country.1 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.2 Reference can also be made to Rameshwar
Prasad and Others (VI) v. Union of India and Another.3 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
1 See Paragraph 5.
2 (1994) 3 SCC 1.
3 (2006) 2 SCC 1.
India for restoration of the statehood of the Union Territory of Jammu and
Kashmir, while upholding the creation of the Union Territory of Ladakh. 4
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.
Headnotes prepared by: Writ Petitions and SLPs disposed of.

Bibhuti Bhushan Bose
4 Mr. Justice Sanjay Kishan Kaul has noted alike.

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[2023] 16 S.C.R.

1 : 2023 INSC 1058

of Jammu and Kashmir through exercise of power under Art. 370(1)

that Article 370(3) ceases to operate without the recommendation of the

Jammu and Kashmir Reorganisation Act 2019 – s.14 – Parliament

Legislature – It follows that Section 3 of the Reorganization Act is valid.

LIST OF CITATIONS AND OTHER REFERENCES

In the judgment of Dr. D.Y. Chandrachud, CJI

Karunanidhi (1972) 4 SCC 733; Raghunathrao Ganpatrao v. Union of India

Toshkhani & K. Warikwoo (eds.), Cultural Heritage of Kashmiri Pandits

ORIGINAL WRIT/APPELLATE JURISDICTION: Writ Petition

Srikumar, Sulabh Rewari, Aditya Chatterjee, Ms. Mansi Binjrajka, Binit

Saxena, Ms. Kavitha K T, Ashwin K, Gopal Jha, Tadimalla Bhaskar

Amrendra Kumar Singh, Umesh Dubey, Vaibhav Tiwari, Piyush Singh,

JUDGMENT / ORDER OF THE SUPREME COURT

* Ed. Note: Pagination is as per the original judgment.

a. The meaning of sovereignty ......................................... 62

iv. Article 370: a temporary provision? .................................. 160

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

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

IV. The validity of modiﬁcation of Article 367 ................ 265

V. Previous Constitutional Orders which modiﬁed Article

b. Applying the entire Constitution to Jammu and Kashmir

c. Securing the concurrence of the Union Government

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

a. The constitutional history of States and Union territories and

b. The contours of the power under Article 3...................... 326

I. Federalism, representative democracy, and the signiﬁcance

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

a. Parliament’s exercise of power under the ﬁrst proviso to

1. This judgment is enriched by the discussions with my distinguished

* Ed. Note: PART A.

State in the event of a failure of the constitutional machinery in the State.

regulation; notiﬁcation, custom or usage having the force of

a. The Lok Sabha recommended to the President under Article

b. the Union Territory of Ladakh without the Legislative Assembly.

* Ed. Note: PART B.

b. In view of the proviso to Article 368 as it applied to Jammu and

8 (1972) 1 SCC 536

the interregnum period, before the formulation of the Constitution

* Ed. Note: PART C.

11 Written Submissions of Dr. Rajeev Dhavan, Senior Advocate.

special provisions under the Constitution designated for the

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

of the restored legislature to alter or undo the changes made

21 Written Submissions of Dr. Rajeev Dhavan, Senior Counsel; Written Submissions

f. This Court in Krishna Kumar Singh v. State of Bihar25 has held

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

30 Submissions On Behalf Of The Petitioners, Mr Shekhar Naphade.

placing Article 370 in Part XXI of the Constitution of India

36 Submissions by Mr Zaﬀar Shah, Senior Advocate.

40 Written Submissions Of Dr. Rajeev Dhavan, Senior Counsel.

sovereignty was retained by the Maharaja in accordance with Clause

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

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

51 Rejoinder by Mr. Dinesh Dwivedi, Senior Advocate.