In a significant ruling on the Article 370 case, the Supreme Court of India emphasized that amendments to the substantive provisions of the Constitution cannot be executed through executive notifications. The Court clarified that any amendments to the Constitution must adhere to the procedure outlined in Article 368, which requires passing an amendment bill in Parliament with the necessary majority.
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The Constitution Bench specifically invalidated a part of the Presidential notification (Constitution Order 272), which had added a clause to Article 367. This clause reinterpreted references to the “Constituent Assembly of Jammu and Kashmir” as the “Legislative Assembly of Jammu and Kashmir” and the “Government of J&K” as the “Governor of J&K.” These changes were instrumental in enabling the President to issue Constitution Order 273, which declared Article 370 inoperative without the recommendation of the J&K Constituent Assembly, dissolved in 1957.
The Court disapproved of the amendments made to Article 367 through Presidential notification, stating that these changes effectively amended Article 370 by altering the recommending body for its abrogation from the J&K Constituent Assembly to the J&K Legislative Assembly. Chief Justice DY Chandrachud, in the judgment, highlighted that while interpretation clauses can define or clarify terms, they cannot be used to amend a provision by circumventing the specific amendment procedure. This approach, he warned, would undermine the purpose of having a structured procedure for amendments.
The judgment also cautioned against the potential consequences of allowing amendments through indirect methods, noting that it could lead to significant alterations in the Constitution without following the prescribed procedures. The Court illustrated this danger with an example, questioning whether a public notification could theoretically delete all castes, races, or tribes from the list of Scheduled Castes, thereby nullifying the mandate of Articles 243D, 243T, 330, and 332 without adhering to Article 368.
Despite invalidating the changes made to Article 367 through Constitution Order 272, the Court upheld the repeal of J&K’s special status. It held that the President did not require the recommendation of the J&K Constituent Assembly to declare Article 370 inoperative, thereby upholding Constitution Order 273.
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