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RE ARTICLE 370 OF THE CONSTITUTION

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FACTS OF THE CASE
The Hindu-ruler Maharaja Hari Singh of Jammu-Kashmir (Muslim-majority state), inclined
and opted for the partition plan of the state which was based on religious reasons. One of the
major reason behind signing this agreement was the guerrilla attack from West Pakistan,
which was based communication, defence and foreign matters. Article 1 and 370 of Indian
Constitution was not applicable on state of Jammu and Kashmir, any application to the
respected state requires prior consultation with the state government.
The Delhi Agreement Act 1952, by Article 35A, which secures the territorial integrity of
Jammu and Kashmir and providing special rights to its permanent state residents, in
discussion with the Constituent Assembly.
The Constituent Assembly of Jammu and Kashmir was dissolved in 1956, leaving too many
challenges for next 70 years. In 2018, as no party secured majority votes, the presidential rule
prevailed in the state in June 2018 till December 2018. On 5 th August 2023 through Order
272, regenerated Constituent Assembly under Article 370(3) as Legislative Assembly.
But it did not have any operational legislative assembly, Parliament approved the abrogation
of Article 370, except its clause 1, which stated that Indian Constitution will apply to Jammu
and Kashmir.


ISSUES OF THE CASE
 Whether Article 370 of the Indian Constitution is non-sustainable?
 Is Article 367 is amending tool for “Constituent Assembly” to explain and define
“Legislative Assembly?”
 Can President of India strike down Article 367 without and recommendation and
discussion of Constituent Assembly of Jammu and Kashmir?
 Jammu and Kashmir Reorganization Act 2019, which divided Jammu and Kashmir
into two Union Territories is constitutionally valid?


ARGUMENTS OF THE CASE
The contentions of the both the side of this case has been explained below:
Petitioner’s contention
Jammu and Kashmir has a very unique social and political history and has a very distinct
status the petitioner give the same in front of Apex court, answering to the same the Supreme
Court stated that the state does not possess any kind of sovereignty it only enjoyed special
autonomy. Petitioner stated that by the retention of Article 370 of Indian Constitution after
the dissolution of the constituent assembly it made it permanent.
The argument also stated that imposition of article 356 of Indian constitution can only
transfer legislative and not constitutional powers to the parliament. By applying the doctrine
of colorable legislation, explained stated that anything which one cannot do directly the same
thing cannot be done in an indirect manner as well.

Respondent’s contention
It was also explained that the indirect amendment of Article 370 by the President of India
without the recommendation of Constituent Assembly conference by substituting Constituent
Assembly with Legislative Assembly.
In addition to the same it was also stated that the Jammu and Kashmir Reorganization Act
2019 was held to be unconstitutional under Article 3 of the Indian Constitution which states
that parliament can form new states and alter the state boundaries but it does not permit any
kind of degradation of a federal democratic state of union territory.
It was also explained and claimed that when it comes to a federal democracy it has the right
to autonomous self-government concerning constitutional and political status in the
fundamental right which is granted under Part III of the Indian Constitution and the same
cannot be revoked without following do legal procedure.



JUDGEMENTS OF THE CASE
This case is excellent example of Supreme court’s decision for upgradation of the unity and
cultural changes towards the state and granting them special privileges and permanent
residency. The decision of the case was derived from a very famous doctrine which is known
as doctrine of colorable legislation, this doctrine limits the excessive and the unconstitutional
use of the authority of the government so as to limit any regress decision which is violating
the rights of the citizen of a particular state. This doctrine is also called fraud of the
constitution this is because there might be decisions which are unfavorable and restrictive in
nature which might prevent the state from progress so as to limit search invalid decisions this
doctrine has been adopted by the Indian judiciary so as to hold the unfavorable step of the
legislative wing of the government.
The doctrine of colorable legislation has channeled its way to India by British administration
who adopted this doctrine from Canada and Australia. This case stated an important quote
which goes like this what cannot be done directly can also not be done indirectly which finds
its root from a Latin maxim that is “quando aliquid prohibetur ex directo, prohibetur et per
obliquum.” This doctrine does not empower to make a law, the main motive of this doctrine
is to restrict the regressive step of legislative authority, which is not progressive in nature.
However, it must be noted that this doctrine has no application and constitutional limit and
subordinate legislation is exempted from the doctrine.
This case is also connected with article 246 on the Indian constitution which provides that
parliament is empowered to make laws and the state Also has power to make laws with
respect to list 3 in the 7 th schedule which is referred as concurrent list.
The bench stated that any act without Recommendation and discussion with the state
authority should not be considered valid the state has tried to be involved in all the matters
that deals with the benefit of the state the Supreme Court of India stated that any act or any
decision pertaining to any state and union territory should consist of the ultimate motive of
unity, socio-economic change, educational upgradation and betterment in terms of health,
transportation and security, there must be unity and awareness among the youth of the citizen
which is guaranteed and protected by the law of India.

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Detail Information

Title

RE ARTICLE 370 OF THE CONSTITUTION

Court

: supreme court., 2023

Lenght/Sections/Order/Rules

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Language

English

Case Number/Citation

2023 INSC 1058

Matter(s)

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Councels

Raju Ramachandran, Gopal Sankaranarayanan, M.L. Sharma, Shakir Shabir, Attorney General K.K. Venugopal

Statement of Responsibility

Sweety Kumari Shaw/Sister Nivedita University, Kolkata

See Also

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