Supreme Court Deliberates on Article 370: Resurrection Argument Termed ‘Too Far Fetched’
In a significant hearing that spanned fifteen days, the Supreme Court of India delved deep into the intricacies of Article 370, which once granted special status to Jammu & Kashmir. The apex court’s bench, led by Chief Justice of India DY Chandrachud, alongside Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, heard arguments from both sides, focusing on the shared sovereignty between the Union and the state.
Senior Advocate V Giri initiated the proceedings, suggesting that if the abrogation of Article 370 were reversed, it would disrupt the federal structure of the Constitution, potentially violating its basic structure doctrine. In response, the CJI remarked,
“Then it would mean that the original Article 370 abrogation would also be a violation of the basic structure. You cannot make us hold in your favour in a provision which cannot be stated.”
Additional Solicitor General KM Nataraj, representing the Union government, emphasized that Article 370 was unique in the Constitution, possessing a
“self-destruction mechanism”
but not conferring any specific rights. He argued,
“This article has a flavour of constituent, legislative, and executive power. When plenary power is entrusted to the President, it should be given the fullest meaning and applied without any restrictions.”
Senior Advocate S Guru Krishnakumar highlighted the rights perspective, asserting that examining this angle would overshadow all allegations of procedural shortcomings. He stated,
“The impugned COs are a reflection of transformative constitutionalism. The effect of the CO is that the whole constitution applies to the State. This change is for the perpetuation of vested rights.”
The CJI further probed the positioning of Article 370 in relation to the basic structure of the Indian Constitution. Senior Advocate Mahesh Jethmalani, representing the Gujjar Bakerwal community, emphasized the political sovereignty of the Union government, pointing out the differences in the Preambles of the Indian and Jammu & Kashmir Constitutions. He argued that the Union’s sovereignty over the state was acknowledged in the Jammu & Kashmir Constitution.
Senior Advocate Gurukrishna Kumar, representing individuals displaced from Pakistan occupied Kashmir (PoK), stressed the rights perspective, highlighting the discrimination faced by those he represented. He said,
“The challenge of the petitioners is contradiction in terms because this is a case where the application of the Constitution of India is sought to be challenged. The COs make provisions for the realization of rights.”
The hearing also saw arguments from ASG Vikramjit Banerjee, who emphasized the ‘temporary’ nature of Article 370. Advocate Archana Pathak Dave discussed the rights of women who married outside Jammu & Kashmir and faced denial of permanent residency and other rights.
As the respondents concluded their arguments, the nation now awaits the Supreme Court’s judgment on this pivotal issue, which will shape the future discourse on Jammu & Kashmir’s relationship with the Union of India.
