Article 370 Judgment | Why Supreme Court Upheld Repeal Of J&K Special Status Despite Invalidating Changes To Article 367? Explained

A Constitution Bench of the Supreme Court yesterday upheld the validity of the Union Government's 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution. While doing so, the bench comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant held that the Constitution (Application to Jammu & Kashmir) Order, 2019, also known as the CO 272 order, was ultra vires insofar as it modified Article 370(3) through an amendment made to Article 367.

However, the court clarified that the declaration that all the provisions of the Constitution of India would apply to J&K as under CO 272 was still valid as collaboration or concurrence of the State Government was not necessary to be obtained to apply all the provisions of the Constitution to J&K. Accordingly, CO 273 which declared that Article 370 would cease to be operative was also held valid. The court reasoned that the President had the power to unilaterally issue a notification under Article 370(3) declaring that Article 370 shall cease to exist and that the dissolution of the Constituent Assembly did not affect the scope of power held by the President under Article 370(3).

This article explains why the Supreme Court upheld the repealing of Article 370 despite invalidating a part of CO 272. 

What Are CO 272 And CO 273? : Understanding The Background

Article 370(3) gave the power to the President to declare that Article 370 shall cease to operate. The proviso to this Article said that a recommendation of the J&K Constituent Assembly was necessary for the President to issue such a declaration. However, the State's Constituent Assembly was dissolved in 1957. Thus, as a first step before the abrogation of Article 370 , the Constitution (Application to Jammu & Kashmir) Order, 2019, also known as the CO 272 order was passed. This order superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 and declared that all the provisions of the Constitution of India would apply to J&K. It also amended Article 367 of the Constitution, which is a provision meant for the interpretation of the Constitution. As Article 370 could only be amended by the recommendation of the J&K Constituent Assembly, the CO 272 order introduced a clause to Article 367. This clause stated that the expression "Constituent Assembly of the State," referred to in clause (2) of Article 370, should be read as the "Legislative Assembly of the State." Since there was no legislative assembly of J&K owing to its dissolution and the state was under Presidential rule, the recommendation of the Parliament was treated as equivalent to the recommendation of the legislative assembly.

Also, CO 272 introduced further clauses in Article 367 to state that reference to the "Government of J&K" can be construed as the "Governor of J&K". Following this, the Parliament passed a Statutory Resolution recommending the abrogation of Article 370. On August 6, 2019, based on the statutory resolution passed by the Parliament, President Ram Nath Kovind issued CO 273 under Article 370(3) stating that from the 6th August 2019, all clauses of Article 370 would cease to be operative. This effectively revoked the special status of Jammu and Kashmir.

Court Holds That Modification Of Article 370 Through Article 367 Was Invalid

In its judgement, the court asserted that the effect of a provision of law was as significant as what it appeared to do. It stated that while the amendment to Article 367 seemed to be a 'modification' only to Article 367, its effect was to amend Article 370 instead. 

The court found that changing the expression 'Constituent Assembly' in the proviso to Article 370(3) to 'Legislative Assembly' affected Article 370(3) in two ways– first, it changed the recommending body from the Constituent Assembly to the Legislative Assembly; and second, it made a new arrangement different from what was originally established by the Constituent Assembly. The judgement authored by CJI DY Chandrachud held that these changes were significant as they modified the essential character of the proviso by substituting a particular body with another type of body entirely. To elaborate further, the judgement delved into the differences between a Constituent Assembly and a Legislative Assembly, stating that a Constituent Assembly was tasked with framing a Constitution in exercise of constituent power. It added that the power to amend a Constitution was a derived constituent power and since the Legislative Assembly was not entrusted with the same, it could not be equated to the Constituent Assembly. The court held–

"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. The consequence of permitting amendments through the circuitous manner would be disastrous."

Elaborating further on these "disastrous" consequences, the court stated that using an interpretation clause for amending provisions of the Constitution, instead of taking the route of Article 368 for the same, would make many provisions of the Constitution susceptible to amendments which evade procedure. The court added that while various modifications were made earlier through Article 367, they were all in the nature of clarifications and did not amount to a modification of Article 370 itself either in terms or in effect, to a significant or appreciable extent.

Court Holds That Parliament Did Not Require Concurrence From State Government To Apply All Provisions Of Constitution To J&K

The court found that the President seeking the concurrence of the Union Government instead of the Government of the State to issue CO 272 was not invalid. Further, it held that the collaboration or concurrence of the State Government was not necessary to be obtained to apply all the provisions of the Constitution to the State of Jammu and Kashmir. To establish the same, the court reasoned that–

A) The effect of applying all provisions of the Constitution to J&K under Article 370(1)(d) was essentially the same as issuing a notification under Article 370(3) that Article 370 shall cease to exist. Thus, the concurrence of the State Government was not required in the first place.

B) The President had the power under Article 370(3) to unilaterally notify that Article 370 shall cease to exist. The court clarified that consultation and collaboration between the State of J&K and the Union Government was necessary only when the application of the Constitution's provisions to the State required amendments to the Constitution of J&K. The judgement provides, "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".

C) The exercise of power is mala fide only if there is an intent to deceive. Since the concurrence of the State Government was not required for the exercise of power under Article 370(1)(d), the President securing the concurrence of the Union of India was not mala fide. The court stated– "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."

Court Holds CO 273 As Valid

The court stated that the President had the power to unilaterally issue a notification under Article 370(3) declaring that Article 370 shall cease to exist. It added that the dissolution of the Constituent Assembly does not affect the scope of power held by the President under Article 370(3). In the judgement, the court further stated that the President could determine if the "special circumstances" which warranted for the existence of Article 370 had ceased to exist. This, as per the court, was a policy decision which lied with the executive. It stated–

"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 court added that the decision was not beyond the scope of judicial review and could be challenged on the ground that it was mala fide. 

The court observed that over the last 70 years, the numerous Constitutional orders issued by the President under Article 370(1)(d), applying various provisions of the Constitution with modifications, indicated a collaborative constitutional integration of J&K with the Union over the years. It highlighted that this integration was a gradual process, and the continuous exercise of power under Article 370(1) by the President demonstrated an ongoing constitutional integration. The court stated–

"This is not a case where only Articles 1 and 370 of the Constitution were applied to the State of Jammu and Kashmir and suddenly after seventy years the entire Constitution was being made applicable. The continuous exercise of power under Article 370(1) by the President indicates that the gradual process of constitutional integration was ongoing."

To hold that Article 370 cannot be abrogated without the recommendation of the J&K Constituent Assembly would make it a permanent feature

The Court said :

"Holding that the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would lead to the freezing of the process of integration contrary to the purpose of introducing the provision; and

 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 would lose its temporary character."

Thus, the exercise was held to not be mala fide in nature. Accordingly, CO 273 was held to be valid.