CJI Questions the Logic Behind Abrogation of Article 370’s Special Status for Jammu & Kashmir
In the ongoing hearing of the Article 370 case, Chief Justice of India (CJI) DY Chandrachud, leading the Constitution bench, posed a pivotal question concerning the 2019 abrogation of Jammu and Kashmir’s special status. He highlighted that over the span of 69 years, numerous Constitutional Orders had been issued, progressively applying the Indian Constitution’s provisions to Jammu and Kashmir. This led to a “substantial integration” of the region with the rest of India. Given this backdrop, the CJI questioned,
“And therefore what was done in 2019, was it really a logical step forward to achieve that integration?”
Elaborating on his thoughts, CJI Chandrachud remarked,
“One last word – the wide chasm between absolute autonomy as it existed on 26 January 1950 and complete integration as brought on 5 August 2019 – that chasm had been substantially bridged by what had happened in between.”
The bench, which also included Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, delved into the intricacies of how Article 370 was abrogated. A central point of debate was the necessity of a ‘Recommendation’ by the Constituent Assembly of J&K for the abrogation of Article 370. As per Article 370(3), the President can declare the article inoperative, but it requires the
“Recommendation of the Constituent Assembly of the State.”
Solicitor General (SG) Mehta argued that even if the Constituent Assembly existed, its decision would be merely “recommendatory” and not binding on the President. CJI Chandrachud countered this, emphasizing the mandatory nature of the term “recommendation” in the context of the Article.
Attorney General for India, Venkataramani, furthered the debate by suggesting that the dissolution of J&K’s Constituent Assembly shouldn’t mean the President’s powers are indefinitely restricted. The CJI, however, highlighted the nuanced use of terms like “consultation,” “concurrence,” “decision,” and “recommendation” in Article 370, suggesting that a ‘recommendation’ implies a positive decision.
Another intriguing discussion revolved around the Parliament’s authority to transform an existing state into a Union Territory (UT). The bench questioned if Article 3(1) allowed for an entire state’s territory to be converted into a UT. The SG clarified that while an entire state couldn’t be transformed into a UT, it was permissible to divide a state into multiple UTs.
CJI Chandrachud further probed the Union’s intentions regarding J&K’s status, asking if there was a plan to revert J&K back to a state and, if so, when a roadmap for this would be provided. The Union confirmed its intention to restore J&K’s statehood.
SG Mehta concluded his arguments by emphasizing the unique nature of J&K’s situation, stating it affected the entire nation, not just neighboring states. He also clarified that J&K retained many attributes of a state, including its legislative assembly and election commission.
This comprehensive examination of the Article 370 case underscores the complexities involved in constitutional decisions and their far-reaching implications for the nation.