In a significant development, the Supreme Court of India is poised to deliver its judgment this month on the contentious issue of the abrogation of Jammu and Kashmir’s special status under Article 370 of the Constitution. This landmark decision, awaited since the Union Government’s 2019 move to revoke the special status, will be pronounced by a Constitution bench led by Chief Justice DY Chandrachud, including Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.
The bench had concluded its hearings on September 5, 2023, after an extensive 16-day session. The case, which also challenges the J&K Reorganization Act that led to the bifurcation of the state into the Union Territories of J&K and Ladakh, has been pending for over three years, with its last listing in March 2020.
During the hearings, the petitioners emphasized the unique relationship between Jammu & Kashmir and India, rooted in the Indian constitutional framework. They highlighted that the Maharaja of J&K retained internal sovereignty after acceding to the Dominion of India, with powers to legislate on all matters except foreign affairs, communication, and defense.
The petitioners argued that Article 370, initially temporary, had gained permanence post the dissolution of the J&K Constituent Assembly in 1957. They contended that the Indian parliament could not assume the role of a Constituent Assembly and raised concerns over the misuse of Article 356 (President’s Rule) in J&K, arguing that it was used to dismantle rather than restore state machinery.
The petitioners also challenged the amendment of Article 370 through Article 367 and the conversion of J&K into a Union Territory, underscoring its negative impact on the constitutional structure.
On the other hand, the Union Government and other respondents argued that the abrogation of Article 370 resolved the ‘psychological duality’ of J&K’s people. They contended that the Indian Constitution was not fully applied to J&K before 2019, leading to discrimination. The respondents maintained that Article 370 was intended to be a temporary measure and that J&K’s conversion to a Union Territory was a temporary response to its status as a sensitive border state, with assurances of restoring its statehood. They also argued that the J&K Constitution was subordinate to the Indian Constitution and that the Constituent Assembly’s role in the abrogation of Article 370 would have been merely recommendatory.
The case saw arguments from senior advocates Kapil Sibal, Gopal Subramanium, Zaffar Shah, Rajeev Dhavan, Dushyant Dave, Chander Uday Singh, Dinesh Dwivedi, Shekhar Naphade, Nitya Ramakrishnan, Gopal Sankaranarayanan, Menaka Guruswamy, Prashanto Chandra Sen, Sanjay Parikh, and Advocate Warisha Farasat for the petitioners. Representing the Union of India were Attorney General R Venkataramani, Solicitor General Tushar Mehta, Additional Solicitor General KM Nataraj, ASG Vikramjeet Banerjee, and Advocate Kanu Agarwal. Senior Advocates Harish Salve, Rakesh Dwivedi, V Giri, Guru Krishnakumar, and Advocates Archana Pathak Dave, VK Biju, and Charu Mathur backed the Union as intervenors.
With Justice SK Kaul’s impending retirement on December 25, 2023, and the Supreme Court’s winter vacation starting December 15, 2023, the judgment is expected to be announced imminently. This decision is set to be a defining moment in India’s constitutional history, potentially reshaping the political and legal landscape of Jammu and Kashmir.