In a significant development, a Constitution Bench led by Chief Justice of India D.Y. Chandrachud has reserved its judgment on petitions challenging the abrogation of Article 370 of the Constitution, which granted special privileges to Jammu and Kashmir.
This momentous hearing, spanning 16 days, witnessed arguments from both petitioners and the government regarding the constitutionality of the procedure adopted for repealing Article 370 and the consequent change in the Statehood status of Jammu and Kashmir.
The government, represented by Attorney-General R. Venkataramani, Solicitor-General Tushar Mehta, and advocate Kanu Agrawal, asserted that the abrogation was essential for the full integration of Jammu and Kashmir into the Union of India. They pointed to the region’s prosperity in the four-and-a-half years following the repeal of Article 370 in August 2019. The government also mentioned that elections were due in Jammu and Kashmir, and it would regain full Statehood once the situation on the ground normalized.
Solicitor-General Mehta highlighted significant reductions in terrorism, infiltration, stone-throwing incidents, and casualties among security personnel, citing percentages of 45.2%, 90.2%, 97.2%, and 65.9%, respectively, since the abrogation in 2019.
On the other hand, the petitioners, represented by senior lawyers including Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Dushyant Dave, and Gopal Sankaranarayanan, argued that the Union used its brute majority in Parliament and a series of executive orders through the President to divide a full-fledged State into the Union Territories of Jammu and Kashmir and Ladakh. They considered this move an attack on federalism and a violation of the Constitution.
The petitioners contended that Article 370 had assumed a permanent character upon the dissolution of the Jammu and Kashmir Constituent Assembly in 1957 after the framing of the State Constitution. Kapil Sibal asserted that Article 368 (Parliament’s power to amend the Constitution) did not apply to Article 370.
The Constitution Bench, also comprising Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, announced that its primary focus would be on the series of events leading to the abrogation of Article 370.
The timeline of events under scrutiny began with the dissolution of the Jammu and Kashmir State Legislative Assembly by the Governor on November 21, 2018, under Section 53(2) of the J&K Constitution.
Subsequently, on December 19, 2018, a proclamation of President’s Rule was issued under Article 356. Parliament approved this proclamation on January 3, 2019, and President’s Rule was extended in Jammu and Kashmir for six months from July 3, 2019.
On August 5, 2019, the President issued the Constitution (Application to Jammu and Kashmir) Order, introducing a new provision, Article 367(4), into the Indian Constitution. This modification replaced the phrase ‘Constituent Assembly of the State’ in the proviso to Article 370(3) with ‘Legislative Assembly of the State.’
Finally, on the same day, Parliament abrogated Article 370 and passed the Bill to reorganize the State of Jammu and Kashmir. The following day, the President declared that Article 370 had ceased to exist.
The judgment reserved by the Constitution Bench holds significant implications for the abrogation of Article 370 and the reorganization of Jammu and Kashmir.
