A Constitution Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud is set to pronounce on December 11 its judgment on the challenge to the abrogation of Article 370 of the Constitution, which granted special privileges to Jammu and Kashmir.
The bench also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant reserved its decision on September 5 this year after hearing extensive arguments from the petitioners and the government spanning over a period of 16 days. The five judges are the seniormost in the court and members of the Supreme Court Collegium.
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Several petitions had been filed challenging the Presidential Orders of August 5 and 6, 2019 as well as the Jammu and Kashmir Reorganisation Act, 2019 (2019 Act) on the ground that they are unconstitutional. The key questions of law raised in the proceedings are — whether the status of J&K had not become permanent after the Constituent Assembly refrained from taking any decision on Article 370 before its dissolution in 1957; whether the latter effectively prevents the Union government from unilaterally altering the State’s relationship with India, and whether the initially ‘temporary’ provision has now attained a permanent character.
The petitioners, represented by a battery of senior lawyers including Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Dushyant Dave, and Gopal Sankaranarayanan, argued that the Union government used brute majority in the Parliament and issued 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 called it an attack on federalism and a fraud played on the Constitution.
They further underscored that Article 370 had assumed a permanent character as soon as the Jammu and Kashmir Constituent Assembly dissolved in 1957 after the framing of the State Constitution. It was also pointed out that the 2019 Act is unconstitutional since Article 3 of the Constitution does not empower the Parliament to downgrade federal democratic States into a less representative form such as a Union Territory.
On the other hand, the government, represented by Attorney-General R. Venkataramani, Solicitor-General Tushar Mehta, and advocate Kanu Agrawal, submitted that the abrogation was necessary to completely integrate Jammu and Kashmir into the Union of India. The court was apprised that the Valley had prospered in the past four-and-a-half years after the repeal of Article 370 in August 2019. It also gave an undertaking that the Union Territory status of Jammu and Kashmir was only a “temporary phenomenon” and that it would be restored to full statehood.
The bench has also raised several pertinent questions during the proceedings — whether the dissolution of the State Constituent Assembly could render Article 370 beyond abrogation, whether the provision forms a part of the Basic Structure of the Constitution, and whether the ambit of judicial review prevents the court from assessing the ‘wisdom’ behind the Union government’s decision to abrogate Article 370.
The apex court took up this case for hearing after a delay of almost four years. In March 2020, when the Court last heard the matter, the question was about referring the case to a larger bench, which a five-judge bench presided by Justice N.V. Ramana refused. The case was referred to a five-judge Constitution Bench in 2019 by a three-judge bench led by former CJI Rajan Gogoi.
Here is a comprehensive coverage of the historic constitutional case, day-to-day live updates from the court proceedings and in-depth analyses of the issues involved.