Supreme Court hearing on Article 370 abrogation | Day 6

Senior advocate Rajeev Dhavan on August 16 apprised the Supreme Court that the internal sovereignty of Jammu and Kashmir was not revoked with the signing of the Instrument of Accession in 1947. Mr. Dhavan cautioned that the President does not exercise ‘carte blanche’ powers during the operation of the President’s Rule under Article 356 of the Constitution and that restrictions must be imposed to curb its misuse.

During the proceedings, Mr. Dhavan also outlined various provisions of the Constitution that are special provisions to take into account the ‘different realities’ of various states. It was underscored that Article 370 of the Constitution is one such provision and is also a part of the basic structure of the Constitution as a substitute for a merger agreement.

Notably, senior advocate Dushyant Dave submitted before the Constitution Bench that Article 370 of the Constitution is a ‘temporary provision’ not due to the efflux of time but because it has served its object and purpose and therefore cannot be amended anymore.

The Supreme Court said on August 10 that the surrender of Jammu and Kashmir’s sovereignty to India was “absolutely complete” with the accession of the former princely state in October 1947, and it was “really difficult” to say that Article 370 of the Constitution, which accorded special status to the erstwhile State, was permanent in nature.

Observing that once Article 1 of the Constitution says India shall be a Union of States, including Jammu and Kashmir, the transfer of sovereignty was complete in all respects, a five-judge constitution Bench headed by Chief Justice D.Y. Chandrachud said.

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Schedule 1 of the Indian Constitution contains the list of States and Union Territories and their extent and territorial jurisdiction, and Jammu and Kashmir figures there in the list. The Bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, observed it cannot be said that some elements of sovereignty in Jammu and Kashmir were retained post Article 370.

Several petitions challenging the abrogation of the provisions of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which split the erstwhile State into two Union Territories — Jammu and Kashmir, and Ladakh — were referred to a Constitution Bench in 2019.