A Constitution Bench headed by Chief Justice of India D.Y. Chandrachud is scheduled to give its verdict on the abrogation of Article 370 of the Constitution on December 11, primarily on the cardinal issue raised by petitioners as to whether the now-extinct provision was part of the basic structure and beyond the amending powers of Parliament.
The Bench had, during the hearings, repeatedly questioned the petitioners’ claim that Article 370, which gave special privileges to the erstwhile State of Jammu and Kashmir, had assumed a permanent character as soon as the Jammu and Kashmir Constituent Assembly was dissolved in 1957 after the framing of the State Constitution.
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The petitioners had argued that the Parliament had no authority to abrogate. In fact, they contended that clause (3) of Article 370, which empowered the President to abrogate the Article, as done on August 5, 2019, had ceased to exist.
Senior advocate Kapil Sibal, the lead counsel for the petitioners, had submitted that 368 (Parliament’s power to amend the Constitution) did not apply to Article 370 as the special procedure for repealing or modifying the Article was only available under clause (3) of Article 370 and none other. Under Article 370(3) and its proviso, the constitutional provision can be declared inoperative by the President through a notification, provided the Constituent Assembly of J&K recommends the move.
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“So, this provision [Article 370] lay even above the Basic Structure of the Constitution?” the Chief Justice had questioned Mr. Sibal’s logic.
The Constitution Bench, also comprising Justices Sanjiv Khanna, B.R. Gavai and Surya Kant, had said its focus would be on the series of machinations which led to the abrogation of Article 370.
The series of events which the Bench may cover in its judgment would include 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. The Parliament had 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.
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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 had seen the Rajya Sabha abrogate Article 370 and pass the Bill to reorganise the State of Jammu and Kashmir. The next day had seen the Lok Sabha pass the Bill and the President declare that Article 370 had ceased to apply.
