From Asymmetric Federalism to Full Constitutional Integration: Supreme Court Clarifies Articles 370 and 356

Introduction

On 11 December 2023, a Constitution Bench of the Supreme Court of India (2023 INSC 1058), led by Chief Justice Dr. D.Y. Chandrachud, with concurring opinions by Justices Sanjay Kishan Kaul and Sanjiv Khanna, delivered a unanimous judgment in a batch of matters collectively titled “In Re: Article 370 of the Constitution”. The Court addressed a constitutional challenge to the abrogation of Article 370, the application of the entire Constitution of India to the former State of Jammu and Kashmir (J&K), and the bifurcation of the State into two Union Territories by the Jammu and Kashmir Reorganisation Act, 2019.

The petitions questioned: (i) whether J&K retained any sovereignty after accession; (ii) the temporariness or permanence of Article 370; (iii) the scope of Presidential and Parliamentary power during President’s Rule under Article 356; (iv) the validity of the Constitution Orders (C.O. 272 and C.O. 273) including the use of Article 367 to alter Article 370; and (v) the power under Article 3 to reorganize a State and to create Union Territories, including the conversion of a State into a Union Territory.

Against a complex historical and constitutional background, the Court upheld the constitutional validity of the abrogation of Article 370 (through C.O. 273), validated the application of the entire Constitution to J&K (through C.O. 272, minus one invalid clause), affirmed limits (and standards of review) on actions during President’s Rule under Article 356, and directed the Election Commission of India to conduct Legislative Assembly elections in the Union Territory of J&K by 30 September 2024, with restoration of statehood “at the earliest and as soon as possible.”

Summary of the Judgment

No residual sovereignty: J&K did not retain sovereignty (external or internal in the sense of a separate constitutional status) after accession and the 25 November 1949 Proclamation adopting the Constitution of India. Article 370 was a feature of asymmetric federalism—not sovereignty.
Article 370 is temporary: By its history, placement in Part XXI (“Temporary, Transitional and Special Provisions”), structure, and constitutional practice, Article 370 was always intended to be a temporary provision.
Presidential power under Article 370(3) survived the J&K Constituent Assembly: The President could issue a declaration under Article 370(3) even after the J&K Constituent Assembly ceased to exist. The proviso (seeking its recommendation) became otiose on dissolution, but the main power of the President continued.
C.O. 272 (05.08.2019): Paragraph 2, which attempted to amend Article 370(3) indirectly via Article 367(4)(d) by substituting “Constituent Assembly” with “Legislative Assembly”, is ultra vires. However, the rest of C.O. 272 is valid, including applying the entire Constitution to J&K under Article 370(1)(d). Concurrence of the State Government was not necessary in the facts, as this step was akin in effect to Article 370(3), in which the President could act unilaterally.
C.O. 273 (06.08.2019): The Presidential declaration under Article 370(3) that Article 370 shall cease to operate (except for the substituted clause applying the Constitution “without any modifications or exceptions”) is valid.
Article 356—limits and review: Actions taken during President’s Rule must have a reasonable nexus to the object of the Proclamation; they are not invalid merely because they create “irreversibility”; and everyday administration actions are not ordinarily justiciable. Once the Proclamation is approved by both Houses of Parliament, the President can undertake even irreversible steps.
Constitution of J&K: With the application of the entire Constitution of India to J&K and the cessation of Article 370, the Constitution of J&K is inoperative and has become redundant.
Reorganisation and Article 3: Formation of the Union Territory of Ladakh is upheld (Article 3(a) read with Explanation I). On conversion of the remainder into a Union Territory, the Court left the question open in view of the Solicitor General’s assurance of restoration of statehood and directed the Election Commission to hold Assembly elections in J&K by 30 September 2024; restoration of statehood is to take place “at the earliest and as soon as possible.”
Truth & Reconciliation Commission: In a separate concurring opinion, Justice Kaul recommended establishing an impartial Truth and Reconciliation Commission for J&K to investigate human rights violations by State and non-State actors, aiding societal healing.

Analysis

Precedents Cited and Their Role

Prem Nath Kaul v. State of J&K (1959): Recognized the Maharaja’s plenary powers before the adoption of the Constitution of India; used to understand pre-accession and early post-accession sovereignty; did not decide post-1957 issues regarding Article 370(3).
Sampat Prakash v. State of J&K (1969): Held that Article 370 continued to operate after the J&K Constituent Assembly’s dissolution; explained that the Assembly did not recommend abrogation; affirmed the President’s power under Article 370(1).
Mohd. Maqbool Damnoo v. State of J&K (1972): Upheld substitution of Sadr-i-Riyasat with Governor through Article 367(4) in the Constitution (Application) Orders; treated as clarificatory, not amending the core of Article 370.
Puranlal Lakhanpal v. President Of India (1955; 1962): Discussed the amplitude of “modifications” under Article 370(1)(d). The Court in this case tempered those observations, holding that Article 370 cannot be amended indirectly via Article 367; “modifications” cannot “efface fundamentals”.
State of Rajasthan v. Union of India (1977) and S.R. Bommai v. Union of India (1994): The latter reoriented Article 356 jurisprudence—tightened standards for imposing President’s Rule, expanded judicial review, emphasised Parliamentary approval, and validated certain “irreversible” actions after Parliamentary approval. The present judgment builds on Bommai to set standards for actions taken after Proclamation.
Krishna Kumar Singh v. State of Bihar (2017): On ordinances; rejected “enduring rights”; distinguished in this case; irreversibility is not a bar when proclamation is approved and the action has reasonable nexus.
State Bank Of India v. Santosh Gupta (2017): Stated that the Constitution of J&K is subordinate and there is no dual citizenship; relied upon to negate claims of state sovereignty.
State of W.B. v. Union of India (1964), Raghunathrao (Privy Purses, 1994): Confirmed States do not enjoy independent sovereignty; constitutional obligations derive from the Constitution, not pre-Constitution agreements.
Babulal Parate v. State of Bombay (1960): The State Legislature’s “views” under the first proviso to Article 3 are recommendatory, non-binding.
Manohar Lal v. Union of India (Delhi HC, 1970): During President’s Rule, Parliament can fulfil the consultative requirement of the first proviso to Article 3.
Kihoto Hollohan (1992), Sajjan Singh (1965), Shankari Prasad (1951), and Rajendra N. Shah (2021): Cited to develop the “change-in-effect” doctrine—substance prevails over form when testing constitutional amendments or changes affecting entrenched provisions.

Legal Reasoning

1) Sovereignty and Asymmetric Federalism

The Court categorically rejected claims that J&K retained sovereignty post-accession. It held that, on accession (Instrument of Accession) and the 25 November 1949 Proclamation accepting the Constitution of India, J&K became an integral part of India under Article 1. Article 370 embodied asymmetric federalism: a special, temporary arrangement reflecting the State’s unique circumstances (war, pending UN processes, incomplete integration), not a recognition of sovereignty. The Constitution of J&K was subordinate to the Constitution of India; its provisions (e.g., Sections 3, 5, 147) explicitly affirmed the State’s integral status and restricted any attempt to alter it.

2) Article 356: The Framework and Limits Post-Bommai

The Court reaffirmed Bommai’s metamorphosis from the State of Rajasthan’s deferential approach: President’s satisfaction is justiciable; Parliamentary approval is a critical check; dissolution of the Assembly should not precede Parliamentary approval, but after approval, even irreversible steps (like dissolution) are permissible.

Standard laid down for reviewing post-Proclamation actions:

The action must have a reasonable nexus to the object of the Proclamation;
It is not invalid merely because it is “irreversible”;
Challenger must make a prima facie showing of mala fides or extraneousness; then the onus shifts to the Union to justify the nexus;
Everyday administrative decisions during President’s Rule are not ordinarily justiciable.

Applying these to the facts, the Court declined to separately adjudicate the validity of the Proclamations (Governor’s Rule under the J&K Constitution and President’s Rule under Article 356) due to the petitions’ focus on actions taken during the Proclamation and lack of effective relief. It then scrutinised the actions (C.O. 272 and 273; reorganisation) under the above standards.

3) Article 370: Temporariness and the Effect of the J&K Constituent Assembly’s Dissolution

The judgment tightly knits historical context (war; promise of plebiscite; need for interim flexibility), textual signals (Part XXI heading and the marginal note; the structure of clauses), and constitutional practice (successive Constitution (Application) Orders) to hold that Article 370 was temporary by design. The Court then addressed the pivotal question: whether the President’s power under Article 370(3) survived the dissolution of the J&K Constituent Assembly.

It held that the main power—to declare that Article 370 shall cease to operate or shall operate with exceptions/modifications—continued. The proviso’s recommendation requirement became otiose once the Assembly dissolved, but could not neutralise the temporary nature and the main power. Any other reading would convert a temporary provision into a permanent one by happenstance.

4) Constitution Orders—C.O. 272 and C.O. 273

C.O. 272: Paragraph 2 (adding Article 367(4)(d) to substitute “Constituent Assembly” with “Legislative Assembly” in the proviso to 370(3)) is ultra vires. Article 370 cannot be amended indirectly through Article 367’s interpretation clause; “modifications” under Article 370(1)(d) cannot “efface fundamentals”. Earlier uses of Article 367 (e.g., Sadr-i-Riyasat to Governor) were clarificatory and did not alter Article 370(3).
Application of the entire Constitution: Permissible under Article 370(1)(d). Such an order is reversible, unlike a 370(3) notification—hence, in one sense, less intrusive. Concurrence of the State Government was not required here because the President had unilateral power under 370(3); applying the entire Constitution was of the same effect as a 370(3) declaration.
C.O. 273: The President’s declaration under Article 370(3) that Article 370 shall cease to operate is valid. The Court accepted that the President could so act unilaterally post-dissolution of the Constituent Assembly.

5) Constitution of J&K

With the application of the entire Constitution of India “without any modifications or exceptions” and the cessation of Article 370, the Court held that the Constitution of J&K is inoperative and has become redundant. The State will henceforth be governed like any other part of India under the Constitution of India.

6) Reorganisation and Article 3

On the substantive power to reorganize, the Court reiterated that Parliament’s power under Article 3 is plenary, and “State” includes “Union Territory” (Explanation I). The formation of the Union Territory of Ladakh was upheld as valid under Article 3(a) read with Explanation I.

Regarding the conversion of the remainder of J&K into a Union Territory, the Court left the question open in view of the Solicitor General’s assurance that statehood will be restored. Nevertheless, it cautioned that converting a State into a Union Territory has grave consequences, requires very strong justification, and must be in strict compliance with Article 3. The Court directed the Election Commission of India to conduct Assembly elections in J&K by 30 September 2024 and mandated that restoration of statehood take place “at the earliest and as soon as possible.”

Procedurally, the Court held that during President’s Rule, Parliament could express “views” under the first proviso to Article 3 (as the State Legislature was dissolved), consistent with Manohar Lal and Babulal Parate (views are recommendatory).

Impact

Constitutional integration completed: The decision constitutionalises the full integration of J&K by validating the omnilateral application of the Constitution and holding the Constitution of J&K inoperative.
Robust standards for Article 356 actions: By setting out a justiciable standard—reasonable nexus, no per se “irreversibility” bar, burden-shifting—and by emphasising Parliamentary approval’s role, the Court has refined the law governing President’s Rule and interim governance.
Asymmetric federalism clarified: Article 370 is held as a temporary asymmetric arrangement, not as a sovereignty conferral. This will guide interpretation of other special provisions in Part XXI.
Limits on using interpretation clauses to amend the Constitution: The Court disallowed indirect amendment of constitutional provisions via Article 367, reinforcing fidelity to Article 368 (and other specific amendment procedures).
Article 3’s future: Although conversion of a State into a Union Territory has been left open, the Court’s cautionary observations and the emphasis on strong justification may shape future reorganizations, ensuring deference to federal values and representative democracy.
Transitional justice: Justice Kaul’s epilogue, recommending a Truth and Reconciliation Commission, anchors a jurisprudential call for restorative processes, acknowledging the human dimension of decades of conflict.

Complex Concepts Simplified

Asymmetric Federalism: A design where certain States have special arrangements or autonomy differing from others, to accommodate unique historical or socio-political contexts. Article 370 was such a temporary asymmetric arrangement for J&K.
Consultation vs. Concurrence vs. Recommendation: Article 370 used these terms with distinct meanings: “consultation” (seeking views) for IoA subjects; “concurrence” (affirmative agreement) for other subjects; “recommendation” (advisory input) of the J&K Constituent Assembly for a 370(3) declaration. Post-dissolution, the proviso’s recommendation became otiose, but the main power remained.
Non obstante clause: A “notwithstanding anything” clause. Article 370(1) and 370(3) begin with non obstante clauses, indicating primacy over other provisions and earlier clauses, respectively.
“Modifications” under Article 370(1)(d): The President could apply constitutional provisions to J&K with exceptions and modifications, but not amend Article 370 itself, nor “efface fundamentals” via interpretation devices like Article 367.
Article 356 action review: After proclamation, actions must relate reasonably to restoring constitutional governance; irreversible actions are permissible after Parliamentary approval; ordinary administration is not normally reviewable; alleged mala fides must be shown prima facie by the challenger.
Article 3 “views”: The State Legislature’s views on a reorganization bill are recommendatory; Parliament is not bound. During President’s Rule, Parliament can express such views.

Conclusion

This Constitution Bench judgment decisively settles the constitutional status of Article 370: it was temporary, a transitional embodiment of asymmetric federalism tailored to J&K’s unique historical context. The Court’s holding that the President could act under Article 370(3) even after the State’s Constituent Assembly had dissolved unlocks the legal pathway for full constitutional integration—while carefully policing the means: disallowing indirect amendment of Article 370 via Article 367, and articulating robust standards governing actions during President’s Rule.

By validating C.O. 273, upholding the application of the entire Constitution to J&K, and declaring the Constitution of J&K inoperative, the Court concludes a long constitutional journey. At the same time, it guards federalism’s essence: cautioning that conversion of a State into a Union Territory demands strong justification and strict adherence to Article 3; and it anchors a roadmap for democratic restoration by directing timely Assembly elections and restoration of statehood at the earliest. The separate recommendation for a Truth and Reconciliation Commission—though not a binding direction—recognizes that enduring constitutional solutions also require societal healing.

The judgment thus charts a twin trajectory: constitutional finality on integration, and constitutional humility in reasserting democratic federalism and justice for the people of Jammu and Kashmir.