The Supreme Court of India, through a five-judge Constitution Bench headed by Chief Justice D.Y. Chandrachud, on 5 September 2023 reserved its judgment on the constitutional validity of the abrogation of Article 370 of the Constitution, which had conferred special autonomous status on the former state of Jammu and Kashmir. The verdict was reserved after a marathon hearing spanning 16 court days, during which the Bench heard extensive arguments from petitioners, the Union Government, and multiple intervenors.
Background
On 5 August 2019, the President of India issued Constitution Order (C.O.) 272, exercising powers under Article 370(1), which effectively rendered all provisions of the Indian Constitution applicable to Jammu and Kashmir without exceptions. Simultaneously, Parliament enacted the Jammu and Kashmir Reorganisation Act, 2019, bifurcating the state into two Union Territories — Jammu and Kashmir (with a legislature) and Ladakh (without a legislature).
Multiple petitions challenged the abrogation on several constitutional grounds: that Article 370 was a permanent provision that could only be abrogated by the Constituent Assembly of Jammu and Kashmir (which had dissolved in 1957); that the President's exercise of power under Article 370(3) required the recommendation of the Constituent Assembly, not the Governor acting in place of the dissolved State Assembly; and that the bifurcation of a state into Union Territories without the State legislature's consent violated the federal structure of the Constitution.
The hearings commenced on 2 August 2023 and extended through August and early September, covering questions of constitutional history, the accession of Jammu and Kashmir, the scope of Article 370, the doctrine of colourable legislation, and the limits of presidential power under the Constitution.
Key Holdings
As the judgment was reserved on 5 September 2023, the Court did not deliver operative holdings on this date. The key questions before the Bench included:
Permanence of Article 370: Whether Article 370 was a temporary or permanent provision, and whether it could be abrogated after the dissolution of the Jammu and Kashmir Constituent Assembly.
Presidential power under Article 370(3): Whether the President could exercise the power to declare Article 370 inoperative by using Article 367 to modify the reference to "Constituent Assembly" to mean "Legislative Assembly" and then to "Governor," effectively creating a self-executing mechanism.
State reorganisation: Whether Parliament could reorganise a state into Union Territories under Article 3 while the state was under President's Rule, and whether such reorganisation required the consent of the state's people.
Federal structure: Whether the downgrading of a state to a Union Territory violated the basic structure doctrine, which protects federalism as an unamendable feature of the Constitution.
Restoration of statehood: Whether and when statehood should be restored to Jammu and Kashmir.
Implications for Practitioners
The reservation of this verdict marked the culmination of one of the most constitutionally significant hearings in recent Indian judicial history. Constitutional law practitioners awaiting the judgment prepared for its potential impact on federal governance, presidential powers, and the limits of parliamentary authority over state reorganisation.
For practitioners advising clients with interests in Jammu and Kashmir — particularly in property, business, and civil rights — the pending judgment created a period of uncertainty regarding the legal framework governing the region. Property transactions, domicile requirements, and residency-based rights introduced after August 2019 all hinged on the constitutional validity of the abrogation.
The case also raised broader questions about the scope of executive power during President's Rule, with implications for future instances where central government action during Governor's rule may face judicial scrutiny. The judgment, when delivered, would establish foundational principles for the exercise of presidential powers under Article 370 and the limits of parliamentary authority over state reorganisation.