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  • State of Jammu and Kashmir does not retain any element of sovereignty after the execution of the instrument of accession. SC Constitution Bench upholds Article 370 abrogation.

    Monday, December 11, 2023

    State of Jammu and Kashmir does not retain any element of sovereignty after the execution of the instrument of accession. SC Constitution Bench upholds Article 370 abrogation.

    Of the three judgments on the issue the main judgment was written by Chief Justice Dr. DY Chandrachud, for himself and Justices Gavai and Suryakant; a concurring opinion was penned by Justice Sanjay Kishan Kaul; and Justice Sanjeev Khanna has concurred with both of these judgments.

    State of Jammu and Kashmir does not retain any element of sovereignty.

    On this issue Court held “The state of Jammu and Kashmir does not retain any element of sovereignty after the execution of the instrument of accession and the issuance of the proclamation dated 25 November 2 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.”

    The said conclusion is based on multiple factors. The Instrument of Accession, initially preserving the Maharaja's sovereignty, lost legal significance with a proclamation by Yuvraj Karan Singh in November 1949, marking the full surrender of sovereignty to India. The absence of a reference to sovereignty in the Constitution of Jammu and Kashmir, coupled with the clear subordination to the Indian Constitution, reinforces the view that the state did not retain an element of sovereignty. Articles 1 and 370 of the Indian Constitution, along with Section 3 of the Constitution of Jammu and Kashmir, further establish its integral part status in the Union. The asymmetric federalism feature, exemplified by Article 370, emphasizes the absence of 'internal sovereignty' distinct from other states. The decision in Prem Nath Kaul's case, limited to the monarch's legislative powers, does not address the question of Jammu and Kashmir's sovereignty post-integration, affirming that the state cannot retain sovereignty.

    Article 370 is a Temporary Provision, a feature of asymmetric federalism

    The gist of what the Court held is that Article 370 is inherently a temporary provision, grounded in historical context and introduced for transitional and interim purposes. It was designed to facilitate an interim arrangement until the Constituent Assembly of Jammu and Kashmir could make decisions regarding legislative competence and ratification of the Constitution.

    Scope of Presidential Powers under Article 370(3)

    Presidential power under Article 370(3) persists even after the dissolution of the Constituent Assembly. The court elucidates that the President's power to issue a notification declaring the cessation of Article 370 remains valid, emphasizing the constitutional objective of integration rather than disintegration. The judgment maintains that freezing this power after the dissolution of the Constituent Assembly would thwart the intended process of constitutional integration between the Union and the State of Jammu and Kashmir, highlighting that such executive decisions can be subject to judicial review only for mala fides but ultimately fall within the executive's domain.

    Width of the Power under Article 370(1)(d)

    Power under Article 370(1)(d) enables the application of all provisions of the Indian Constitution to Jammu and Kashmir.

    This authority allows for the selective application of one provision, multiple provisions, an entire Part, or the entirety of the Constitution itself. The court rejected the notion that applying all provisions simultaneously through CO 272 signifies a lack of consideration or non-application of mind, emphasizing that the language of Article 370(1)(d) doesn't differentiate between applying one or all provisions. It underscores the broad scope of this provision, dispelling any notion of procedural irregularity or non-application of mind in the comprehensive application of the Constitution to Jammu and Kashmir through the exercise of power under Article 370(1)(d).

    Exercise of power by the President following a Proclamation under Article 356 (imposing President's Rule in a state) is subject to judicial review.

    The court held that such exercise must demonstrate a reasonable nexus with the objective of the Proclamation. If an individual challenges the exercise of power, they must initially establish a prima facie case of mala fide or extraneous use of power. Once a prima facie case is demonstrated, the burden shifts to the Union government to justify the legitimacy and appropriateness of the exercised power.

    Eventhough though it was held that there are limitations on the power which can be exercised by the Union Government in the State when a Proclamation under Article 356 is in force it was emphasised that 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.

    President seeking the concurrence of the Union Government, rather than the Government of the State, to issue constitutional Order is not invalid.

    The court reasoned that applying all provisions of the Indian Constitution to Jammu and Kashmir through Article 370(1)(d) has the same effect as issuing a notification under Article 370(3) declaring the cessation of Article 370. The requirement for consultation and collaboration between the units would only be necessary if amendments to the State Constitution were needed, ensuring governance smoothness and alignment with the Indian Constitution. Since the President has the unilateral power to issue such a notification, the principles of consultation and collaboration were deemed unnecessary in this context. Moreover, the court emphasized that the exercise of power is only considered mala fide if it involves deception, and since concurrence of the State Government was not required for applying all provisions of the Constitution, securing the Union of India's concurrence was not deemed mala fide.

    Modification introduced by Constitutional Order 272 to Article 367, as it applies to Jammu and Kashmir, effectively amounted to amending Article 370 and is ultra vires.

    The Supreme Court concluded that the modification introduced by CO 272 to Article 367, as it applies to Jammu and Kashmir, effectively amounted to amending Article 370 and is thus ultra vires. It was emphasized that any changes to Article 370 must adhere to the specific procedure outlined in Article 370(3) for ceasing operation, amendment, or modification. The court underscored the importance of both the form and effect of a change, asserting that the substance of the modification is more significant than its formal aspect. In analyzing CO 272, the court highlighted that the alterations, including shifting the recommending body from the Constituent Assembly to the Legislative Assembly, substantially modified the essential character of the proviso to Article 370(3). The judgment asserted that such modifications must follow the prescribed constitutional procedures to avoid circumventing the amendment process and prevent potential abuses of power. Additionally, the court distinguished CO 272 from previous Constitutional Orders, emphasizing that earlier orders were clarificatory and consequential, lacking the effect of amending Article 370.

    Constitution of the State will be inoperative

    Following the abrogation of Article 370 and the comprehensive application of the entire Constitution of India to the state, the Constitution of the State became redundant, serving no purpose or function. The court concluded that the implicit but necessary consequence of the full application of the Constitution of India to Jammu and Kashmir rendered the Constitution of the State inoperative.

    Parliament's exercise of power under the first proviso to Article 3 is valid and not mala fide.

    The views expressed by the Legislature of the State are not binding on Parliament according to the first proviso to Article 3. The court underscored that these views are recommendatory in nature. Therefore, Parliament's exercise of power under the first proviso to Article 3, irrespective of the views of the State Legislature, is deemed valid and not considered mala fide by the court.

    Statehood of Jammu and Kashmir will be restored: SC relies on the submissions of Solicitor General, however upholds status of Ladakh as UT

    The Supreme Court, in assessing the validity of the Jammu and Kashmir Reorganisation Act 2019, considered the Solicitor General's submission that statehood would be restored to Jammu and Kashmir, rendering its status as a Union Territory temporary. The court, relying on this representation, opted not to delve into the question of the permissibility of reorganizing the state into two Union Territories under Article 3. The status of Ladakh as a Union Territory was affirmed based on the authority provided by Article 3(a) read with Explanation I, allowing the formation of a Union Territory by the separation of a territory from any State. Acknowledging security concerns in the region, the court emphasized the paramount importance of direct elections to Legislative Assemblies in representative democracy. Consequently, the court directed the Election Commission of India to conduct elections for the Legislative Assembly of Jammu and Kashmir, by September 30, 2024. The court also emphasized the expeditious restoration of statehood, urging it to occur at the earliest and as soon as possible.

    SC leaves open the question of whether Parliament has the constitutional authority to extinguish the character of statehood by converting a State into one or more Union Territories under Article 3.

    The court emphasized that in an appropriate case, it must scrutinize the scope of powers under Article 3, considering the significant implications of such conversions, including the diminishment of autonomy, the historical context of creating federating units, and the potential impact on principles of federalism and representative democracy.

    In Re Article 370 of the Constitution

    Decided on 11th December, 2023

    For full text  'click here'

    Reported by Ashly Harshad

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    The Kerala Disaster and Public Health Emergency (Special Provisions) Ordinance, 2021

  • 10 OF 2021

    THE KERALA MICRO SMALL AND MEDIUM ENTERPRISES FACILITATION (AMENDMENT) ORDINANCE, 2021

  • 11 OF 2021

    THE KERALA MINERALS (VESTING OF RIGHTS) ORDINANCE, 2021

  • 34 OF 2021

    THE KERALA MUNICIPALITY (SECOND AMENDMENT) ORDINANCE, 2021

  • 13 OF 2021

    THE KERALA MUNICIPALITY (AMENDMENT) ORDINANCE, 2021

  • 14 OF 2021

    THE KERALA PANCHAYAT RAJ (AMENDMENT) ORDINANCE, 2021

  • 33 OF 2021

    THE KERALA PANCHAYAT RAJ (SECOND AMENDMENT) ORDINANCE, 2021

  • 19 OF 2021

    THE KERALA   PROVISIONAL COLLECTION OF REVENUES (AMENDMENT) ORDINANCE, 2021

  • 6 OF 2021

    THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENTS (AMENDMENT) ORDINANCE, 2021

  • 42 OF 2021

    THE KERALA TOWN AND COUNTRY PLANNING (AMENDMENT) ORDINANCE, 2021

  • 49 OF 2021

    THE UNIVERSITY LAWS (AMENDMENT) (No.3) ORDINANCE, 2021

  • No.22 of 2021

    The Kerala Epidemic Diseases Ordinance, 2021

  • 3 of 2021

    THE INSOLVENCY AND BANKRUPTCY CODE (AMENDMENT) ORDINANCE, 2021

  • 2 of 2021

    THE TRIBUNALS REFORMS (RATIONALISATION AND CONDITIONS OF SERVICE) ORDINANCE, 2021

  • 6 of 2021

    THE HOMOEOPATHY CENTRAL COUNCIL (AMENDMENT) ORDINANCE, 2021

  • 5 of 2021

    THE INDIAN MEDICINE CENTRAL COUNCIL (AMENDMENT) ORDINANCE, 2021

  • Bill No. 1

    THE KERALA EPIDEMIC DISEASES BILL, 2021

  • 7 of 2021

    THE ESSENTIAL DEFENCE SERVICES ORDINANCE, 2021

  • 72 OF 2021

    KERALA EDUCATION (AMENDMENT) ORDINANCE, 2021

  • 71 of 2021

    Kerala Disaster and Public Health Emergency (Special Provisions) Ordinance, 2021

  • 56 of 2021

    THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) AMENDMENT BILL, 2021(as introduced in loksabha)

  • 104 of 2021

    THE INSOLVENCY AND BANKRUPTCY CODE (AMENDMENT) BILL, 2021

  • Bill No. 116 of 2021

    THE TRIBUNALS REFORMS BILL, 2021

  • 115 of 2021

    THE GENERAL INSURANCE BUSINESS (NATIONALISATION) AMENDMENT BILL, 2021

  • 119 of 2021

    THE CENTRAL UNIVERSITIES (AMENDMENT) BILL, 2021

  • 124 of 2021

    THE CONSTITUTION (ONE HUNDRED AND TWENTY-SEVENTH AMENDMENT) BILL, 2021

  • 120 of 2021

    THE TAXATION LAWS (AMENDMENT) BILL, 2021

  • 78 OF 2021

    THE KERALA CLINICAL ESTABLISHMENTS (REGISTRATION AND REGULATION) AMENDMENT ORDINANCE, 2021

    legislation h

  • Notfn.No. 9042/Leg.B

    THE KERALA PUBLIC SERVICE COMMISSION (ADDITIONAL FUNCTIONS AS RESPECTS THE SERVICES UNDER THE WAQF BOARD) ORDINANCE, 2021 58 of 2021

    Legislation B

  • 29

    THE KERALA EDUCATION (AMENDMENT) BILL, 2021

  • Bill No. 31

    THE KERALA GENERAL SALES TAX (AMENDMENT) BILL, 2021

  • 3751/Leg.G1/2020/Law

    THE KERALA PRIVATE FORESTS (VESTING AND ASSIGNMENT) (AMENDMENT) ORDINANCE, 2021 dated 2.7.2021

  • 85 OF 2021

    THE KERALA MICRO SMALL AND MEDIUM ENTERPRISES FACILITATION (AMENDMENT) ORDINANCE, 2021

  • 124 OF 2021

    THE KERALA MINERALS (VESTING OF RIGHTS) ORDINANCE, 2021

  • 138 OF 2021

    THE KERALA PUBLIC SERVICE COMMISSION (ADDITIONAL FUNCTION AS RESPECTS CERTAIN CORPORATIONS AND COMPANIES) AMENDMENT ORDINANCE, 2021

  • 39

    THE KERALA EDUCATION (AMENDMENT) BILL, 2021/BILL No. 39

  • 38

    THE KERALA CO-OPERATIVE SOCIETIES (AMENDMENT) BILL, 2021/Bill No. 38

  • 95 OF 2021

    THE KERALA SELF FINANCING COLLEGE TEACHING AND NON-TEACHING EMPLOYEES (APPOINTMENT AND CONDITIONS OF SERVICE) ORDINANCE, 2021

  • 47

    THE KERALA PRIVATE FORESTS (VESTING AND ASSIGNMENT) AMENDMENT BILL, 2021

  • 58

    THE KERALA CO-OPERATIVE SOCIETIES (SECOND AMENDMENT) BILL, 2021

  • 56

    THE KERALA GENERAL SALES TAX (AMENDMENT) BILL, 2021

  • 54

    THE UNIVERSITY LAWS (AMENDMENT) BILL, 2021

  • 70

    THE KERALA LABOUR WELFARE FUND (AMENDMENT) BILL, 2021

  • 65

    THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENTS (AMENDMENT) BILL, 2021

  • 64

    THE KERALA HEADLOAD WORKERS (AMENDMENT) BILL, 2021

  • 8 of 2021

    THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES (AMENDMENT) ORDINANCE, 2021

  • 51

    THE KERALA EMPLOYMENT GUARANTEE WORKERS' WELFARE FUND BILL, 2021

  • 44

    THE KERALA REPEALING AND SAVING BILL, 2021

  • 59

    THE KERALA MINERALS (VESTING OF RIGHTS) BILL, 2021

  • 66

    THE KERALA MICRO SMALL AND MEDIUM ENTERPRISES FACILITATION (AMENDMENT) BILL, 2021

  • 144 OF 2021

    THE KERALA PUBLIC HEALTH ORDINANCE, 2021

  • 140 OF 2021

    THE KERALA PRIVATE FORESTS (VESTING AND ASSIGNMENT) AMENDMENT ORDINANCE, 2021

  • 142 OF 2021

    THE KERALA INDUSTRIAL SINGLE WINDOW CLEARANCE BOARDS AND INDUSTRIAL TOWNSHIP AREA DEVELOPMENT (AMENDMENT) ORDINANCE, 2021

  • 9 of 2021

    THE CENTRAL VIGILANCE COMMISSION (AMENDMENT) ORDINANCE, 2021

  • 151 of 2021

    Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2021

  • XLIII of 2021

    Mediation Act, 2021 

  • Bill No. 85

    THE KERALA LAND REFORMS (AMENDMENT) BILL, 2021

  • 2 OF 2022

    THE KERALA MARITIME BOARD (AMENDMENT) ORDINANCE, 2022

  • 3 OF 2022

    THE KERALA LOK AYUKTA (AMENDMENT) ORDINANCE, 2022

  • 21 of 2022

    Constitution (Scheduled Tribes) Order (Amendment)  Act, 2022

  • Bill No. 84

    THE KERALA AGRICULTURAL INCOME TAX (REPEAL) BILL, 2021

  • Bill No. 88

    THE KERALA CO-OPERATIVE SOCIETIES (AMENDMENT) BILL, 2022

  • Bill No. 91

    THE KERALA PRIVATE FORESTS (VESTING AND ASSIGNMENT) AMENDMENT BILL, 2022

  • 6 OF 2022

    THE KERALA INDUSTRIAL SINGLE WINDOW CLEARANCE BOARDS AND INDUSTRIAL TOWNSHIP AREA DEVELOPMENT (AMENDMENT) ORDINANCE, 2022

    Law (Legislation-C) Department

  • 10 OF 2022

    THE KERALA LIVESTOCK AND POULTRY FEED AND MINERAL MIXTURE (REGULATION OF MANUFACTURE AND SALE ) ORDINANCE, 2022

    Law (Legislation-I)

  • 5 of 2022

    THE   KERALA LOCAL SELF GOVERNMENT COMMON SERVICE ORDINANCE, 2022

    legislation h

  • 9 of 2022

    THE KERALA MARITIME BOARD (AMENDMENT) ORDINANCE, 2022 (9 of 2022)

  • 12 OF 2022

    THE KERALA PUBLIC HEALTH ORDINANCE, 2022

  • 93 of 2022

    THE CRIMINAL PROCEDURE (IDENTIFICATION) BILL, 2022

  • 85

    Kerala Land Reforms (Amendment) Bill, 2021

  • bill no. 102

    The Kerala protection of River banks and regulation Removal of sand Act Amendment Bill,2022

  • 110

    THE KERALA CO-OPERATIVE SOCIETIES (AMENDMENT) BILL, 2022 - Bill No. 110

  • Bill No. 109

    THE KERALA PRIVATE FORESTS (VESTING AND ASSIGNMENT) AMENDMENT BILL, 2022

  • 113

    THE KERALA CO-OPERATIVE SOCIETIES (SECOND AMENDMENT) BILL, 2022

  • 123 of 2022

    THE FAMILY COURTS (AMENDMENT) BILL, 2022

  • 126

    The Kerala Document Writers.....Fund (Amendment) Bill, 2022

  • 111

    THE KERALA LIVESTOCK AND POULTRY..........SALE ) BILL, 2022

  • 127

    THE KERALA CO-OPERATIVE SOCIETIES (SECOND AMENDMENT) BILL

  • 128

    THE KERALA LIVESTOCK AND POULTRY ...... AND SALE ) BILL, 2022

  • 129

    Kerala Maritime Board (Amendment) Bill, 2022

  • 134

    THE KERALA INDUSTRIAL SINGLE WINDOW CLEARANCE BOARDS AND INDUSTRIAL TOWNSHIP AREA DEVELOPMENT (AMENDMENT) BILL, 2022

  • 7 of 2022

    Kerala Private Forest (Vesting and Assignment) Ordinance, 2022

  • 135

    The Kerala Public Enterprises (Selection and Recruitment) Board Bill, 2022

  • 133

    THE KERALA LOK AYUKTA (AMENDMENT) BILL, 2022

  • 136

    THE KERALA LOCAL SELF GOVERNMENT COMMON SERVICE BILL, 2022

  • 15 OF 2022

    THE KERALA PUBLIC HEALTH ORDINANCE, 2022

    Law (Legislation-H) Department

  • Bill No. 143

    THE SREE PANDARAVAKA LANDS (VESTING AND ENFRANCHISEMENT) AMENDMENT BILL, 2022

  • 142

    THE KERALA MOTOR TRANSPORT WORKERS' PAYMENT OF FAIR WAGES (AMENDMENT) BILL, 2022

  • 146

    Kerala Panchayat Raj Amendment Bill, 2022

  • 145

    Kerala Municipality Amendment Bill, 2022

  • 145

    Kerala Municipality (Amendment) Bill, 2022

  • 146

    THE KERALA PANCHAYAT RAJ (AMENDMENT) BILL, 2022

  • 148

    Non-Resident Indians' (Keralites) Commission Bill, 2022

  • 102

    THE KERALA PLANTATION TAX (REPEAL) BILL, 2021

  • 149

    The University Laws(Amendment)(No.2) Bill,2022

  • 137

    THE KERALA HIGH COURT.....RETIREMENT AGE) BILL, 2022

  • Bill No. 102

    Kerala Protection of River Banks and Regulation of Removal of Sand (Amendment) Bill, 2022

  • 153

    The Kerala General Sales Tax (Amendment)Bill,2022

  • 150

    THE UNIVERSITY LAWS (AMENDMENT) (No.3) BILL, 2022

  • 290 OF 2022

    Repealing and Amending Act, 2022

  • NOTIFICATION No. 448

    THE KERALA FINANCE BILL, 2023

  • Bill No. 162

    THE KERALA PRIVATE FORESTS (VESTING AND ASSIGNMENT) AMENDMENT BILL, 2023

  • Bill No. 80 of 2023

    THE FOREST (CONSERVATION) AMENDMENT BILL, 2023

  • 1 of 2023

    THE KERALA HEALTHCARE SERVICE PERSONS AND HEALTHCARE SERVICE .......ORDINANCE, 2023

  • 2 OF 2023

    THE KERALA TAXATION LAWS (AMENDMENT) ORDINANCE, 2023

  • 167

    THE INDIAN PARTNERSHIP (KERALA AMENDMENT) BILL, 2023

  • 93 OF 2023

    Registration of Births and Deaths (Amendment) Act, 2023

  • 101 OF 2023

    Mines and Minerals (Development and Regulation) Amendment Bill, 2023

  • LIII OF 2023

    Press and Registration of Periodicals Act, 2023

  • 168

    The Kerala Building Tax (Amendment) Bill, 2023

  • Bill No. 169

    Kerala Healthcare Service Persons and Healthcare Service Institutions(Prevention of Violence and Damage to Property) Amendment Bill, 2023

  • Bill No. 164

    Abkari Amendment Bill, 2023

  • Bill No. 172

    Kerala Conservation of Paddy Land and Wetland Amendment Bill, 2023

  • Bill No. 113 of 2023

    THE DIGITAL PERSONAL DATA PROTECTION BILL, 2023

  • Bill No. 173

    THE KERALA GOVERNMENT LAND ASSIGNMENT (AMENDMENT) BILL, 2023

  • 374 of 2019

    THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS (AMENDMENT) BILL, 2019

  • 175

    Kerala Panchayat Raj (Amendment) Bill, 2023

  • 176

    Kerala Municipality (Amendment) Bill, 2023

  • Bill No. 124 OF 2023

    Constitution (One Hundred and Twenty-eighth Amendment) Act, 2023

  • Bill No. 178

    THE CODE OF CRIMINAL PROCEDURE (KERALA SECOND AMENDMENT) BILL, 2023

  • 4 of 2023

    THE KERALA PANCHAYAT RAJ (AMENDMENT) ORDINANCE, 2023

  • 3 of 2023

    THE KERALA MUNICIPALITY (AMENDMENT) ORDINANCE, 2023

  • 100 of 2023

    JAMMU AND KASHMIR REORGANISATION (AMENDMENT) BILL, 2023

  • 172 of 2023

    THE JAMMU AND KASHMIR REORGANISATION (SECOND AMENDMENT) BILL, 2023

  • 175 of 2023

    Bharatiya Sakshya (Second) Adhiniyam, 2023

  • 174 of 2023

    BHARATIYA NAGARIK SURAKSHA (SECOND) SANHITA, 2023

  • 173 of 2023

    BHARATIYA NYAYA (SECOND) SANHITA, 2023

  • 194 OF 2023

    Telecommunications Bill, 2023

  • 190

    Kerala Public Service Commission (Additional Functions As Respects Certain Corporations And Companies) Amendment Bill, 2024

  • 188

    The Kerala Municipality (Amendment) Bill, 2024

  • XVIII OF 2024

    Water (Prevention and Control of Pollution) Amendment Act, 2024

  • 193

    THE KERALA FINANCE BILL, 2024

  • Bill No. 196

    Kerala Panchayat (Second Amendment) Bill, 2024

  • 200

    2024 ലെ കേരള നികുതി വസൂലാക്കൽ (ഭേദഗതി) ബിൽ 

  • 213

    Non Residents Keralites Welfare (Amendment) Bill, 2024

  • 230

    Kerala Industrial Infrastructure Development (Amendment) Bill, 2024

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Government Order / Circular
  • 13402/J2/12/G

    Appointment and Deployment of Teachers in Aided ... read more... 10-Apr-2012

  • D2/7318/12/DPI

    Period of Probation of Officers in State Service ... read more... 03-Apr-2012

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