Supreme Court’s Examination of Article 370 Abrogation Continues
In a series of hearings, the Supreme Court’s Constitution Bench, under the leadership of Chief Justice of India DY Chandrachud, has been meticulously examining the petitions that challenge the abrogation of Article 370. This article previously conferred special status upon the erstwhile state of Jammu and Kashmir.
During a recent hearing, the Union Government communicated to the Supreme Court its inability to provide a definitive timeline for the restoration of Jammu and Kashmir’s statehood. However, it expressed readiness to conduct elections in the region. The government further emphasized that J&K’s current Union Territory status is temporary. Solicitor General Tushar Mehta attributed the uncertainty surrounding the election timeline to consistent law and order disturbances in the valley. Despite these challenges, he assured the court that significant strides have been made towards restoring statehood.
Senior advocate Kapil Sibal, representing the petitioners, took issue with the Centre’s statistics on the normalization of the valley. He pointedly remarked on the situation, stating,
“If you have 5,000 people under house arrest and Section 144 imposed throughout the State, there can be no bandh!”
He urged the court to tread carefully, warning of a potential flood of counter-facts.
In response, CJI Chandrachud clarified the court’s position, stating that the challenge to the abrogation would be decided based on constitutional arguments rather than the statistics presented by the Centre. He had previously probed the Solicitor General about a potential timeline for the restoration of J&K’s statehood, emphasizing the critical nature of democracy’s restoration.
The court also highlighted the historical trajectory of J&K’s autonomy. It observed that the autonomy as it stood on January 26, 1950, and its status post-integration on August 5, 2019, had seen significant convergence. The CJI posed a thought-provoking question, asking if the 2019 actions were a logical progression towards achieving complete integration.
For context, the Centre’s decision on August 5, 2019, to abrogate Article 370 led to the revocation of Jammu and Kashmir’s special status. This was followed by its bifurcation into two Union Territories. This monumental decision spurred a slew of petitions challenging both the abrogation of Article 370 and the subsequent Jammu and Kashmir Reorganisation Act of 2019.
In earlier proceedings, the Supreme Court had opted against referring this batch of petitions to a larger seven-judge Constitution Bench. The court had also sought clarity on whether Article 370 was envisioned as a permanent or temporary provision, especially in light of the dissolution of J&K’s Constituent Assembly in 1957.
Defending the Central government’s 2019 decision, Solicitor General Tushar Mehta invoked the words of Pandit Jawaharlal Nehru. He emphasized Nehru’s stance that India wouldn’t recognize rulers of princely states as having any ‘divine’ rights. The Supreme Court also made an observation on Article 35A, noting that its repeal in 2019 granted special rights to J&K residents while simultaneously curtailing certain fundamental rights of individuals from other parts of India.
In a broader perspective, the apex court highlighted that various region in India, not just J&K, have grappled with militancy and separatism. The hearings, which promise to shed light on one of India’s most debated constitutional changes, continue.
