Published On: February 2nd 2026
Authored By: Parinita Kolipaka
School of Law, Gitam University
ABSTRACT
The repeal of Article 370, which revoked Jammu and Kashmir’s special constitutional status and resulted in its reorganisation as the Union Territories of Jammu & Kashmir and Ladakh in 2019, raises complex constitutional issues. This paper examines the constitutional basis of the move, with a focus on the interpretation of Articles 370(1) and 370(3), the use of presidential orders, and Parliament’s powers under Articles 3 and 356 of the Indian Constitution. It also examines key judicial developments, such as the Supreme Court’s 2023-24 decision upholding the abrogation, as well as challenges based on federalism, democratic representation, constitutional morality, and the redefinition of the “Constituent Assembly” of J&K.
CONSTITUTIONAL BASIS
Article 370(3)
Article 370[1] of the Indian Constitution explicitly stated that it could be repealed or amended by a Presidential order. However, this process was contingent on the recommendation of Jammu and Kashmir’s Constituent Assembly. This assembly, which was in charge of drafting the state constitution, ceased to exist in 1957. As a result, the government claimed that the requirement for a recommendation from the Constituent Assembly no longer constituted a legal impediment to the repeal of Article 370.
Jammu and Kashmir Reorganisation Act, 2019
The Indian Parliament recently passed a significant law that effectively divides the state of Jammu and Kashmir[2] into two separate Union Territories. Jammu and Kashmir will have its own legislature, while Ladakh will operate without one. This landmark decision was based on the powers granted by Article 3 of the Indian Constitution, which allows for the reorganisation of states and territories. The government has stated that this move follows constitutional procedures that are valid during a period of President’s Rule.
IN RE: ARTICLE 370 OF THE CONSTITUTION
KEY ISSUES
- Is Article 370 a temporary provision of the Constitution of India?
- Can Article 367 be used to amend the meaning of “Constituent Assembly” to mean “Legislative Assembly?”
- Can the President strike down Article 370 without the recommendation of the Constituent Assembly of Jammu and Kashmir?
- Is the Jammu and Kashmir Reorganisation Act, 2019 which bifurcated J&K into two Union Territories constitutionally valid?
PRESIDENTIAL ORDERS (2019)
On August 5, 2019, President Ram Nath Kovind issued a presidential order[3] (C.O. 272) amending Article 367 of the Constitution to clarify how the Constitution should be interpreted. The amendment changed Article 370(3)’s reference to the ‘Constituent Assembly’ to the ‘Legislative Assembly’. Initially, only the Jammu and Kashmir ‘Constituent Assembly’ could recommend amendments to Article 370.
C.O. 272 authorised the Union to amend Article 370 without the recommendation of the Constituent Assembly. The Jammu and Kashmir Legislative Assembly’s powers were transferred to the Union Parliament because the state was under President’s Rule at the time. So, a few hours after C.O. 272 was issued, the Rajya Sabha recommended the repeal of Article 370 via a Statutory Resolution.
On August 6, 2019, President Kovind issued Proclamation C.O. 273, implementing the Rajya Sabha’s recommendation. All clauses of Article 370 ceased to apply, with the exception of clause 1, which was amended to state that the Indian Constitution applies to the State of Jammu and Kashmir. This removed Jammu and Kashmir’s special status. The same day, Advocate Manohar Lal Sharma filed a petition under Article 32, challenging the constitutionality of Article 370’s dilution.
On August 9, 2019, the Union Parliament passed the Jammu and Kashmir Reorganisation Act, 2019, which divided the state of Jammu and Kashmir into two Union Territories. The two new Union Territories are Jammu and Kashmir and Ladakh, with only the former retaining a legislative assembly. Kashmiri advocate Shakir Shabir, as well as Jammu and Kashmir National Conference leaders Mohammed Akbar Lone and Hasnain Masoodi, filed two additional Article 32 petitions.
ARGUMENTS AGAINST THE ABROGATION OF ARTICLE 370
The petitions broadly address two issues. The first challenge concerns the constitutionality of presidential orders, while the second questions the division of Jammu and Kashmir into two Union Territories.
The petitioners used the ‘doctrine of colourable legislation,’ which states that “what cannot be done directly, cannot be done indirectly.” The petitioners claim that the President has indirectly amended Article 370, a constitutional provision, without the approval of Jammu and Kashmir’s Constituent Assembly. This was accomplished by replacing ‘constituent assembly’ with ‘legislative assembly’.
Second, they argued that the Jammu and Kashmir Reorganisation Act, 2019, is unconstitutional under Article 3. This Article empowers the Parliament to create new states and change or modify the borders of existing ones. The petitioners argue that Article 3 does not give Parliament the authority to downgrade federal democratic states to a less representative form, such as a union territory.
The petitioners also argue that in a federal democracy, the right to autonomous self-government, particularly with regard to constitutional and political status, is a fundamental right under Part III of the Constitution that cannot be taken away without following the due procedure established by law.
LEGAL CHALLENGES: NATURE OF CHALLENGES
Multiple petitions argued that:
- The President, as head of state, is bound by the provisions of the Constitution and cannot unilaterally repeal Article 370 without the explicit recommendation of the Constituent Assembly. This article, which grants special status to the region of Jammu and Kashmir, was enacted to provide a degree of autonomy while also protecting the area’s distinct cultural and demographic characteristics. The requirement for a recommendation from the Constituent Assembly acts as a safeguard, ensuring that any significant changes to Jammu and Kashmir’s status are made with due consideration and reflection of the people’s will. Thus, the process is intended to uphold democratic principles while preserving the delicate balance of governance in this sensitive region.
- Substituting the Assembly for the Legislative Assembly, and thus the Union Parliament, during President’s Rule was fundamentally illegal. This action undermined the principles of federalism and power division, which are critical to our country’s democratic framework. The Assembly, as a representative body, is critical in reflecting public opinion and ensuring accountability in governance. By replacing it with a different legislative structure, the democratic process’s integrity is jeopardised. Such a move not only violates established constitutional provisions, but it also raises serious concerns about the legitimacy of governance during critical times. Upholding the Constitution is critical to preserving the rule of law and protecting citizens’ rights.
- Bifurcation[4] into Union Territories without state assembly consent violates India’s federal structure. This action raises serious concerns about the balance of power between the central government and individual states. By avoiding this critical democratic process, the central government undermines not only the authority of state legislatures, but also the fundamental principles of federalism, which are intended to ensure cooperation and mutual respect among different levels of government. This situation has sparked intense debate about the implications for state autonomy and their ability to govern effectively in the future, emphasising the need for a more collaborative approach to governance that respects both the rights and responsibilities of the central and state governments.
KEY SUPREME COURT FINDINGS
The Supreme Court of India’s key findings on the 2019 repeal of Article 370 affirmed the constitutional validity of the central government’s actions to revoke Jammu and Kashmir’s special status and reorganise the state into two Union Territories. This significant decision has far-reaching consequences for the region as well as the overall relationship between the state and the federal government. The court’s detailed decision addressed the major legal and constitutional issues raised by petitioners, who claimed that the abrogation undermined the federal structure and violated democratic principles. In its decision, the court considered the historical context and legal framework surrounding Article 370 before concluding that the government acted within its constitutional rights. The ruling has sparked extensive discussions and debates about Jammu and Kashmir’s future governance, as well as the potential implications for its residents’ rights.
Temporary Nature of Article 370
The Court reiterated that Article 370 was intended to be a temporary provision, specifically to facilitate Jammu and Kashmir’s integration into India. This article granted the region special provisions and autonomy during what was regarded as a transitional period in its governance and political landscape. The Court emphasised that these special provisions were not intended to be immutable or permanent. Instead, they were designed to evolve with the region and become more fully integrated into India’s constitutional framework. Thus, the temporary nature of Article 370 emphasises the dynamic relationship between Jammu and Kashmir and the rest of the country, indicating that changes and reforms may be implemented as needed to ensure a cohesive national identity.
Validity of Presidential Orders
The Court upheld the President’s power to issue presidential orders under Article 370(3), even in the absence of the now-defunct Jammu and Kashmir Constituent Assembly. This significant ruling demonstrated that the President’s authority is not limited to the existence of the Constituent Assembly, but can also extend to other legislative bodies. The President’s amended interpretation substituted the term “Constituent Assembly” for “Legislative Assembly[5],” which was deemed constitutional and valid. This decision emphasises the flexibility of constitutional provisions in response to changing political and legal circumstances, reflecting the need for governance to function effectively even when certain legislative bodies are no longer in operation.
Article 3 and State Reorganisation
The Court ruled that the Jammu and Kashmir Reorganisation Act of 2019 was a valid exercise of parliamentary power under Article 3 of the Constitution, as it divided the state into two distinct Union Territories—one with and one without a legislature. This decision was especially significant given the context of President’s Rule, in which the Union government assumes governance of the state. The decision emphasised that the division was not only constitutionally permissible, but also required for effective administration and governance.
Union Parliament’s Role During President’s Rule[6]
The court accepted that Parliament, as the state legislature during President’s Rule, had the authority to approve constitutional changes that specifically affected Jammu and Kashmir. This decision emphasised the region’s unique constitutional status and the exceptional circumstances under which the central government can exercise its powers.
Federalism and Autonomy
The Court concluded that the region’s special status under Article 370 did not grant it full sovereignty or independence, but rather represented a unique form of asymmetric federalism within the Indian Union. This arrangement granted Jammu and Kashmir special privileges and autonomy when compared to other states. However, the Court emphasised that this special status was not absolute and could be changed or revoked by the central government. As a result, repealing Article 370 violated neither the nation’s federal structure nor any fundamental constitutional principles.
No Violation of Due Process
The process of abrogation and reorganisation was carried out in strict accordance with established constitutional mechanisms, ensuring that all actions were taken within the legal framework established by the governing laws. This careful approach not only preserved the constitutional process’s integrity, but also ensured that no fundamental rights, which are the foundation of any democratic society, were violated. Furthermore, the procedures followed were meticulously designed to avoid any form of procedural illegality that could jeopardise public trust or result in legal challenges.
BROADER IMPLICATIONS
The Supreme Court decision upheld the central government’s authority to repeal Article 370 and reorganise the state of Jammu and Kashmir[7], effectively ending its special constitutional status under Indian law. This landmark decision was a watershed moment in Indian constitutional law, confirming the constitutional integration of Jammu and Kashmir into the Union of India. While some praised the decision as a necessary step towards national unity and integration, it also sparked heated political and public debates that continue to this day.
Thus, the Supreme Court determined that the abrogation was constitutionally sound based on contemporary interpretations of the Indian Constitution. In its decision, the court emphasised the temporary nature of Article 370, which was originally intended to grant special autonomy to the region of Jammu and Kashmir. The justices stated that, over time, the provisions of this article had become increasingly out of sync with the nation’s changing political landscape and needs. Furthermore, the court emphasised the government’s parliamentary powers during President’s Rule, stating that the central government has the authority to enact significant legislative changes in a state while under such governance.
WHAT ARTICLE 35A INCLUDES
Article 35A of the Indian Constitution, a provision linked with Article 370, played a significant role in the legal and political discourse surrounding the abrogation of Jammu and Kashmir’s special status in 2019.
- Article 35A empowered the Jammu and Kashmir state legislature to define “permanent residents” of the state and accord them special rights and privileges. These included the exclusive right to own property, hold government jobs, and receive scholarships and other benefits.
- Importantly, this legislation severely limited non-permanent residents, including Indian citizens from other states, from purchasing property or establishing permanent residency in Jammu and Kashmir. This measure aimed to protect the region’s unique demographic and cultural autonomy, ensuring that the local population could maintain its distinct identity and heritage in the face of external influences.
ROLE IN ABROGATION CHALLENGES
Constitutional Linkage
Article 35A derived its constitutional validity from Article 370 of the Indian Constitution, which granted Jammu and Kashmir significant legislative autonomy over a variety of regional issues. This special status enabled the state to identify permanent residents and grant them exclusive rights and privileges. However, the abrogation of Article 370 was challenged in court because it was interpreted as implicitly nullifying Article 35A, removing the constitutional basis for these special provisions. This abrogation had far-reaching consequences, calling into question the rights of Jammu and Kashmir residents as well as the future of their unique legal framework.
Legal Challenges[8]
Petitioners argued that the repeal of Article 35A was a significant violation of the rights and identity protections that had long been guaranteed to permanent residents of Jammu and Kashmir. They argued that such an abrogation would undermine not only the region’s cultural uniqueness and distinct way of life, but also the principles of home rule and indigenous peoples’ rights. Furthermore, the petitioners expressed concern that this decision could result in unfavourable demographic changes for local populations, potentially altering the region’s social fabric and balance in ways that would diminish the voices and rights of its long-term residents. They claimed that this would eventually jeopardise the very essence of what it means to be a Jammu and Kashmir resident.
Government’s Position
The Indian government contended that Article 35A was primarily the result of a temporary order issued under Article 370 of the Indian Constitution and was not intended to be a permanent constitutional provision. This interpretation led the government to claim that the repeal of Article 35A was entirely legal and justified once Article 370 was no longer in effect. The government maintained that this action was within its legal rights, emphasising that such provisions were intended to be temporary in nature and not to last indefinitely, which supported their position on the issue.
CONCLUSION
The Court accepted the government’s interpretation that during President’s Rule in Jammu and Kashmir, Parliament functioned as the state legislature, rendering parliamentary approval of abrogation and reorganisation constitutionally valid under Article 3. It clarified that the special status granted by Article 370 did not confer internal sovereignty or independence and was not incompatible with India’s federal system.
Furthermore, the Supreme Court[9] rejected arguments that the President’s actions were irreversible or violated due process, stating that no mala fide intent was demonstrated. The judgment also ordered elections in Jammu and Kashmir by September 2024, with promises to restore statehood.
In summary, the Supreme Court ruled that the abrogation and reorganisation were constitutionally sound, marking the final legal chapter in Jammu and Kashmir’s integration into India’s constitutional framework, though the political and social implications remain complex.
REFERENCES
[1] Article 370 of the Constitution of India, WIKIPEDIA
[2] S. P. Sathe
Economic and Political Weekly, Vol. 25, No. 17 (Apr. 28, 1990), pp. 932-933 (2 pages)
[3] Challenge to the Abrogation of Article 370 Case Background, SUPREME COURT OBSERVER
[4] India Supreme Court upholds revocation of Kashmir’s special status, BBC NEWS
[5] Key aspects of Article 370 verdict unpacked, THE INDIAN EXPRESS (Dec. 12, 2023)
[6] In Re: Article 370 of the Constitution (2023), DRISHTI JUDICIARY
[7] Justice Surya Kant takes the baton, THE LEAFLET
[8] Unraveling the Supreme Court’s Verdict Upholding the Abrogation of Article 370, CENTRE FOR LAW AND POLICY RESEARCH
[9] Imran Ahmed & Muhammad Saad Ul Haque, Abrogation of Article 370: An Analysis of the Supreme Court Verdict, ISAS BRIEFS (Jan. 13, 2024)
