The Supreme Court of India is poised to pronounce a historic judgment on December 11, addressing the highly debated abrogation of Article 370, which led to the revocation of the special status of Jammu and Kashmir. This impending verdict follows an intense and prolonged legal examination of the Union Government’s 2019 decision, which has been a subject of national and international interest.
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The Constitution Bench, headed by Chief Justice of India DY Chandrachud and including Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, reserved its judgment on September 5, 2023, after a comprehensive hearing spanning 16 days. The case, which had been in a state of dormancy since its last listing in March 2020, saw a resurgence of activity beginning August 2, 2023, marking a critical phase in this constitutional saga.
Represented by a formidable team of senior lawyers including Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Dushyant Dave, and Gopal Sankaranarayanan, the petitioners challenged the Union of India’s method of using its parliamentary majority to issue executive orders through the President. These orders effectively bifurcated the erstwhile state into the Union Territories of Jammu and Kashmir and Ladakh. The petitioners labeled this action as an assault on federalism and a constitutional fraud, with over 20 petitions filed in the Supreme Court contesting the government’s move.
The arguments presented by the petitioners were multifaceted. They emphasized the unique relationship between Jammu and Kashmir and the Indian Union, a relationship that was intricately woven into the constitutional fabric of the nation. The petitioners contended that Article 370, which granted special status to Jammu and Kashmir, had gained permanence following the dissolution of the J&K Constituent Assembly in 1957.
They argued that the Indian Parliament could not assume the role of a Constituent Assembly and that the amendment of Article 370 via Article 367 was invalid. The petitioners also highlighted the misuse of Article 356, which pertains to President’s Rule, alleging that it was employed not to restore but to dismantle the state’s legislative machinery. They further argued that the conversion of the entire state into a Union Territory was unprecedented and had far-reaching implications on the constitutional structure.
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In contrast, the Union Government and other respondents defended the abrogation, arguing that it resolved the ‘psychological duality’ experienced by the people of Jammu and Kashmir. They maintained that Article 370 was always intended as a temporary provision, destined to be phased out.
The respondents contended that the conversion of Jammu and Kashmir into a Union Territory was a temporary measure, necessitated by its status as a sensitive border state, and assured that its statehood would be restored. They argued that the J&K Constitution was subordinate to the Indian Constitution and that the role of the Constituent Assembly, had it existed, would have been merely recommendatory in the abrogation process.
This upcoming judgment from the Supreme Court is anticipated with bated breath, as it promises to address a plethora of complex legal and constitutional questions. The verdict will not only shape the future governance of Jammu and Kashmir but also set a precedent in the annals of Indian constitutional law, potentially redefining the dynamics of federalism, state autonomy, and the central government’s powers.
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