Article 370 Abrogation Upheld: In Re Article 370 (2023)

Abrogation of Article 370 Upheld: Temporary Provision Could End by Presidential Order Without State Constituent Assembly

Published: 21 October 2026 · NyayVidhan

A five-Judge Constitution Bench upheld CO 273, by which the President declared under Article 370(3) that Article 370 ceased to operate. In the lead opinion for three Judges, Chandrachud CJI held that Jammu and Kashmir retained no sovereignty, that Article 370 was temporary and that the power under Article 370(3) survived the State Constituent Assembly, although using Article 367 to amend Article 370 was invalid (Chandrachud CJI, para 514). Assembly elections were directed by 30 September 2024.

Key holdings

Jammu and Kashmir retained no element of sovereignty after the Instrument of Accession and the Proclamation of 25 November 1949 adopting the Constitution of India (Chandrachud CJI, para 514).

Paragraph 2 of CO 272, amending Article 370 through Article 367, was ultra vires (Chandrachud CJI, para 514).

CO 273 is valid and the State Constitution is inoperative (Chandrachud CJI, para 514).

Ladakh's Union Territory status was upheld; the wider reorganisation was left undecided on the Solicitor General's statement that statehood would be restored (Chandrachud CJI, para 503).

Kaul J. recommended an impartial truth and reconciliation commission (Kaul J., para 120).

Case explainer by NyayVidhan: an account of this judgment and the law it laid down, not the court's text. The judgment itself is the authoritative version.

Brief Facts

After the Bharatiya Janata Party withdrew support in June 2018, the Governor took over the State Government under Section 92 of the Jammu and Kashmir Constitution and later dissolved the Legislative Assembly (Chandrachud CJI, para 3). President's rule under Article 356 followed in December 2018 (Chandrachud CJI, para 4). On 5 August 2019 CO 272 applied the whole Constitution to the State and added Article 367(4), reading 'Legislative Assembly' for 'Constituent Assembly' in Article 370(3) (Chandrachud CJI, para 7). CO 273 then declared that Article 370 ceased to apply, and the Reorganisation Act split the State into two Union Territories (Chandrachud CJI, paras 10, 12). Writ petitions under Article 32 followed (Chandrachud CJI, para 13).

Court's Findings

Article 370 was a feature of asymmetric federalism, and the State had no internal sovereignty distinct from other States (Chandrachud CJI, paras 164-165). The Proclamations were not examined, since the principal challenge was to actions taken during President's rule (Chandrachud CJI, para 174). Actions after a Proclamation are reviewable, but need only a reasonable nexus with its object; irreversibility alone does not invalidate them (Chandrachud CJI, paras 207, 229). Its historical context and placement in Part XXI make Article 370 temporary (Chandrachud CJI, paras 278, 320-321). The President's power under Article 370(3) did not end with the Constituent Assembly (Chandrachud CJI, para 514). An interpretation clause cannot amend a provision by bypassing its amending procedure, so the change to Article 367 failed (Chandrachud CJI, para 389). Applying all provisions under Article 370(1)(d) without the State Government's concurrence was valid, and CO 273 culminated a gradual integration and was not mala fide (Chandrachud CJI, paras 428, 465). Kaul J. reasoned that Article 370 recognised an internal sovereignty which Article 370(3) was meant to end (Kaul J., paras 67-68). Khanna J. concurred with both opinions (Khanna J., para 3).

Legal Principle

Article 370 was a temporary provision and a feature of asymmetric federalism; the President's power under Article 370(3) survived the dissolution of the State Constituent Assembly, but an interpretation clause such as Article 367 cannot be used to amend a provision while bypassing the procedure laid down for its amendment (Chandrachud CJI, paras 389, 514).

Precedents Relied Upon

SR Bommai v. Union of India (1994) 3 SCC 1
Applied Discussed at ¶ 183, 196-197
Actions of the President after a Proclamation under Article 356 are subject to judicial review.
Prem Nath Kaul v. State of Jammu & Kashmir 1959 Suppl (2) SCR 270
Explained Discussed at ¶ 14, 170
Decided the Yuvraj's legislative competence before the State Constitution, not whether the State retained sovereignty.
Sampath Prakash v. State of Jammu and Kashmir (1969) 2 SCR 365
Explained Discussed at ¶ 325, 330
Held that Article 370 did not lapse with the State Constituent Assembly; the survival of the Article 370(3) power did not arise there.

View all precedents (6)

Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1
Distinguished Discussed at ¶ 22, 213, 217
Its rejection of the enduring rights theory for Ordinances cannot be transposed to limits on Article 356 powers.
Madhav Rao Jivaji Rao Scindia v. Union of India (1971) 1 SCC 85
Applied Discussed at ¶ 391, 400
A constitutional power cannot be used for a collateral purpose to obviate the amending procedure.
Babulal Parate v. State of Bombay AIR 1960 SC 51
Relied Upon Discussed at ¶ 510-511
The views of a State Legislature under the proviso to Article 3 are not binding on Parliament.