The Supreme Court Constitution Bench on Tuesday reserved its verdict on several pleas challenging the validity of the Bharatiya Janata Party-led Centre’s August 2019 decision to abrogate Article 370 and bifurcate the state of Jammu and Kashmir in two union territories.
The five-judge Constitution bench comprised the Chief Justice of India (CJI) DY Chandrachud, with Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. The top court heard arguments at length for over 16 days.
The top court is likely to deliver its verdict by December 15 at the latest, since it happens to coincide with Justice Kaul's last day working day as a Supreme Court judge. Though Justice Kaul retires this year on December 24, the top court’s winter break begins on December 18.
After hearing 20 petitioners on the issue of Article 370, the Supreme Court has indicated its intent to focus on four key points: validity of Article 370 itself, including the proviso to Article 370(3) – President’s right to revoke special status after a recommendation from the State’s constituent assembly; President’s power to amend the status of a state; the Jammu and Kashmir Reorganisation Act, 2019; and the presidential rule under Article 356.
Senior Advocates Kapil Sibal, Gopal Subramanium, Zaffar Shah, Rajeev Dhavan, Dushyant Dave, CU Singh, Dinesh Dwivedi, Shekhar Naphade, Nitya Ramakrishnan, Gopal Sankaranarayanan, Menaka Guruswamy, Prashanto Chandra Sen, Sanjay Parikh and advocate Warisha Farasat argued for 20 petitioners and intervenors.
Attorney General (AG) for India R Venkataramani, Solicitor General (SG) Tushar Mehta, Additional Solicitor Generals (ASG) KM Nataraj, Vikramjeet Banerjee and advocate Kanu Agarwal argued for the Centre.
BOOM recaps the main arguments from the hearing.
Abrogation of Article 370 was a political move, not constitutional: JKNC
Senior advocate Kapil Sibal questioned the process undertaken to revoke the special status granted to Jammu and Kashmir. The former law minister, representing ex-Chief Minister Farooq Abdulla’s Jammu and Kashmir National Conference (JKNC), argued that according to Article 370 in the Indian Constitution, presidential notification cannot be initiated on its own. It must follow a recommendation from the council of ministers from the state assembly, he said.
"That is important...After the recommendation, the president's notification will follow. This process must be followed," Sibal said. Explaining the history of the state, Sibal said Jammu and Kashmir were not entirely linked to India. It had its own constitution which outlined state and executive functions. Sibal said Article 370 acquired a permanent character after the state constituent assembly was dissolved in 1957.
Sibal said Article 368 (Parliament’s power to amend the Constitution) would not apply to Article 370 given the special procedure already present to modify or repeal this provision under clause (3) of Article 370.
"We should interpret the Constitution textually and contextually…," he said adding that the abrogation of Article 370 was a political process and it must have a “political solution”.
"It (abrogation of article 370) was political, but now it is constitutional," Justice Khanna, one of the five judges on the bench said; while CJI Chandrachud clarified that “all solutions have to be within the framework of the Constitution."
Jammu & Kashmir’s status as a Union Territory is a temporary feature: Centre
In one of the most significant statements made during the hearing, the Centre reiterated that Jammu and Kashmir’s status as a union territory was "not a permanent feature". When the Supreme Court asked the Centre for a roadmap or a timeline to restore statehood, the government said J&K was primed for elections and the Election Commission would take the final call as to the when and the how.
SG Tushar Mehta told the Supreme Court that the Centre has already initiated steps to restore Jammu And Kashmir to full statehood, but it was unable to "give an exact timeline right now."
"The Centre is taking all steps to restore stability in the region and full statehood is a question to be decided based on the degree of normalcy,” Solicitor General Tushar Mehta said while elaborating on the government’s initiatives.
However, senior advocate Rajeev Dhavan said the Centre’s promises were "entirely illusionary". "Centre is not able to provide a roadmap for restoration of Statehood and submit that the time will come when statehood is restored. This is no roadmap at all and is entirely illusory. There is a violation of the multi-symmetric Constitution as well," Dhavan said on the last day of the hearing.
Is Article 370 considered to be permanent? Supreme Court asks
The Supreme Court asked if the drafters of the constitution and Article 370—which granted special status to the state of Jammu and Kashmir—itself, envisaged the provision to be temporary or permanent.
On August 24, the top court pointed out that the reference to Article 1—which underscored the unity of India and is a permanent feature of the Indian Constitution, was a "clear indicator" that Article 370 was "never intended to be permanent."
The petitioners argued that Article 370 had assumed a kind of permanence and was no longer a "temporary" provision after the dissolution of the state constituent assembly in 1957.
Senior advocate Gopal Subramanium argued that though Article 370 was thought to be temporary, but "by the will of the people it became a mainstay."
"Your whole argument is Article 370 has worked itself out once the constituent assembly completes its task. But that would be belied at the least by Constitutional practice because even after 1957 there were orders which were issued…Therefore, it would be incorrect to postulate that Article 370 achieved its life…," the CJI had said.
Article 356 (President’s Rule) misused
The petitioners argued that the Centre misused Article 356 which imposes President's Rule in a state. Article 356 is meant to restore state machinery, not destroy it the petitioners urged. But in J&K, the President’s rule was imposed to destroy the state legislature.
President's Rule under Article 356 was “temporary” in nature and permanent actions could not be taken under it. “The process under Article 356 is that you keep the assembly in suspended animation. If you find that there is no possibility, after imposing Article 356, you dissolve and hold elections,” senior advocate Kapil Sibal had argued.
Senior advocate Gopal Subramanium argued that the Presidential orders that allowed for the abrogation of Article 370 were a flawed exercise of untrammeled power under Article 370(1).
“…[Article] 356, with very great respect, is never intended to be used for the purpose of usurping state legislatures. It cannot be done. That notional vesting of power is limited for a small purpose under 356,” Subramanium added.