A Constitution Bench headed by Chief Justice of India D.Y. Chandrachud on September 5 reserved its judgment on petitions challenging the abrogation of Article 370 of the Constitution, which gave special privileges to Jammu and Kashmir.
The hearings, which saw submissions made by both petitioners and the government on the constitutionality of the procedure adopted to repeal the Article and the abolition of Statehood of Jammu and Kashmir, spanned 16 days.
The government, represented by Attorney-General R. Venkataramani, Solicitor-General Tushar Mehta and advocate Kanu Agrawal, had argued that the abrogation was necessary to completely integrate Jammu and Kashmir into the Union of India. The government said the Valley had prospered in the past four-and-a-half years after the repeal of Article 370 in August 2019. It said elections were due in J&K, which would revert to full Statehood again once the situation on the ground returned to normal.
Mr. Mehta said Jammu and Kashmir became a Union Territory in an “extraordinarily extreme situation”. He claimed that terrorism, infiltration, stone-throwing and casualties among security personnel had reduced by 45.2%, 90.2%, 97.2% and 65.9%, respectively, post the abrogation in 2019.
‘Attack on federalism’
The petitioners, represented by a battery of senior lawyers including Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Dushyant Dave and Gopal Sankaranarayanan, said the Union used brute majority in 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.
The petitioners had argued 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. Mr. Sibal said 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, said its focus would be on the series of machinations that led to the abrogation of Article 370.
The series is of events which the Bench would look into would start with the dissolution of the Jammu and Kashmir State Legislative Assembly by the Governor under Section 53(2) of the J&K Constitution on November 21, 2018.
The proclamation of President’s Rule under Article 356 was issued a month later, on December 19, 2018. Parliament approved the proclamation of the President on January 3, 2019. The President’s Rule was extended in J&K for six months with effect from July 3, 2019.
On August 5, 2019, the President issued the Constitution (Application to Jammu and Kashmir) Order which inserted a new provision, Article 367(4), in the Indian Constitution. This replaced the expression ‘Constituent Assembly of the State’ in the proviso to Article 370(3) with ‘Legislative Assembly of the State’.
The same day saw Parliament abrogate Article 370 and pass the Bill to reorganise the State of Jammu and Kashmir. The next day saw the President declare that Article 370 had ceased to exist.