5 Sep 2023 10:54 AM GMT
In a significant development, the Supreme Court on Tuesday (September 5) reserved its judgment in the long-pending case challenging the Union Government's 2019 decision to repeal the special status of Jammu and Kashmir under Article 370 of the Constitution. The petitioners also challenged the J&K Reorganization Act which bifurcated the State into Union Territories of J&K and Ladakh....
In a significant development, the Supreme Court on Tuesday (September 5) reserved its judgment in the long-pending case challenging the Union Government's 2019 decision to repeal the special status of Jammu and Kashmir under Article 370 of the Constitution. The petitioners also challenged the J&K Reorganization Act which bifurcated the State into Union Territories of J&K and Ladakh.
The hearing, which commenced on August 2, 2023, witnessed extensive arguments and discussions over a span of sixteen days. This landmark case had remained dormant for over three years, with its last listing dating back to March 2020.
The petitioner counsels argued for the first nine days and stressed upon the unique nature of J&K's relationship with India which got embodied in the Indian constitutional setup, highlighting that the Maharaja of J&K did not give up the internal sovereignty to the Dominion of India. Thus, while the power to make laws relating to foreign affairs, communication, and defence lied with the Union as per the Instrument of Accession (IoA), the internal sovereignty of J&K which provided it with powers to legislate on all other matters remained with the Maharaja. It was argued that Article 370 had assumed permanence and was no longer a 'temporary' provision post the dissolution of the J&K Constituent Assembly in 1957. The petitioners further contended that the Indian parliament, under the current constitutional framework, could not convert itself into a Constituent Assembly. They also stressed upon the misuse of Article 356, which imposes President's Rule in a State. It was emphasised that the purpose of Article 356 was to restore state machinery and not destroy it but the President's Rule in J&K was imposed to destroy the state legislature. It was added that President's Rule under Article 356 was in its nature "temporary" and thus permanent actions could not be taken under it. The petitioners also argued that the amendment of Article 370 through Article 367 was invalid. Finally, it was stated that while Article 3 of the Indian Constitution granted the power to Union to alter the boundaries of states and even create smaller states through bifurcation, it had never before been used to convert an entire state into a Union Territory (UT). The negative impact of turning J&K into a UT on the constitutional structure was also underlined. A detailed summary on petitioners arguments can be found here.
Per contra, the Union Government along with other respondents argued that the abrogation of Article 370 resolved the 'psychological duality' of the people of J&K and that there existed discrimination against the people of J&K before the abrogation as the Indian constitution was not fully applied to the state prior to 2019. It was underlined that it was very clear that the Constitution makers foresaw Article 370 as a 'temporary' provision and wanted it 'to die'. Challenging the assertion of an exclusive special status for J&K, the respondents argued that during the late 1930s, a multitude of princely states were in the process of drafting their own constitutions. It was also submitted that the execution of a merger agreement was not necessary to become a part of the Indian nation. Further, internal sovereignty could not be confused with sovereignty. It was stated that J&K was only converted to a UT owing to it being a sensitive border state for a temporary time period and that its statehood would be restored. It was also argued that if Article 367 was not modified, it would have the effect on Article 370 becoming a permanent feature of the Indian Constitution, as sans the Constituent Assembly, Article 370 could never be modified. Finally, the respondents asserted that the J&K Constitution was subservient and subordinate to the Indian Constitution and the J&K Constitution never had original constituent powers. Thus, even if the Constituent Assembly had been in existence, it would have a limited role to play in abrogation of Article 370 as its decision would be only "recommendatory" in nature and the President could have taken any decision even if the Constituent Assembly did not agree to the same.
For the petitioners- 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 argued.
For the Union of India : Attorney General for India R Venkataramani, Solicitor General of India Tushar Mehta, Additional Solicitor General KM Nataraj, ASG Vikramjeet Banerjee and Advocate Kanu Agarwal.
For the intervenors backing the Union - Senior Advocates Harish Salve, Rakesh Dwivedi, V Giri, Guru Krishnakumar; Advocates Archana Pathak Dave, VK Biju and Charu Mathur.
Coverage of all days :
Article 370 Can't Be Abrogated As J&K Constituent Assembly Never Recommended It Before Dissolution : Kapil Sibal Tells Supreme Court [Day 1]
Article 370 Case : Can't Parliament Exercise Its Amending Powers To Abrogate J&K Special Status? Supreme Court Asks [Day 2]
Governor and Union Government Acted in Tandem to Abrogate Article 370: Senior Advocate Kapil Sibal Tells Supreme Court [Day 2]
Article 370 Case | No Question Of Referendum In Our Constitution, Says Supreme Court When Petitioner Cited Brexit-Referendum [Day 3]
Jammu & Kashmir Case | Constitution Does Not Allow Changing Whole State Into Union Territory : Sibal Tells Supreme Court [Day 3]
Jammu & Kashmir Case | 2019 Presidential Order Indirectly Amends Article 370, Which Is Impermissible : Gopal Subramanium To Supreme Court [Day 4]
Article 370 Case | Jammu & Kashmir's Surrender Of Sovereignty To India Was Absolutely Complete, Says Supreme Court During Hearing[Day 5]
Article 370 Case | J&K Retained Autonomy, It Signed IoA To 'Shake Hands' With India, Not To Embrace It Fully : Zaffar Shah To Supreme Court [Day 5]
Article 370 Case | Special Provisions Not Unique To Jammu & Kashmir, Several Other States Have : Senior Advocate Rajeev Dhavan [Day 6]
Article 370 Case | Upholding Centre's Actions Could Create A Precedent To Disintegrate Any State To Achieve Political Goals : Dushyant Dave [Day 6]
Article 370 Continued To Operate Even After J&K Constituent Assembly Dissolution, Says Supreme Court During Hearing [Day 7]
J&K Case | Degradation Of State Into Union Territory Impermissible Under Article 3: Senior Advocate CU Singh To Supreme Court[Day 8]
Can’t Accept Argument That Article 370 Ceased To Exist Post J&K Constitution Enactment, Says Supreme Court During Hearing [Day 8]
Article 370 Case | "If They're Allowed To Do This, Heavens Know What Else They'll Do" : Gopal Sankaranarayanan Warns Against Potential Mischief [Day 9]
Article 370 | 'Integration' Not A Measure Of How Much Control Centre Has : Nitya Ramakrishnan To Supreme Court [Day 9]
Article 370 Case | Ends Can’t Justify Means, Supreme Court Tells Union On Hearing Day 10
Article 370 Case | Article 35A Took Away Three Fundamental Rights Of Citizens, Says Supreme Court During Hearing[Day 11]
Is Conversion Of Jammu & Kashmir As Union Territory Consistent With Federalism? Supreme Court Asks Centre [Day 11]
Article 370 | 'Restoration Of Democracy Important' : Supreme Court Asks Centre When Jammu & Kashmir's Statehood Will Be Restored [Day 12]
J&K Case | Supreme Court Explains 'Heart Of The Matter' : Could Union Have Amended Article 370 Through Article 367 Route? [Day 12]
Article 370 Case | Substantial Integration Of J&K Had Already Taken Place In 69 Years; So Was 2019 Decision Really A Logical Step? CJI Asks [Day 12]
Can't Say Exactly When Jammu & Kashmir's Statehood Will Be Restored; Ready For Elections : Centre Tells Supreme Court [Day 13]
Article 370 A Political Compromise, President Had Broad Powers To 'Pull The Plug': Respondents Tell Supreme Court [Day 13]
Article 370 | Petitioners Banking On A 'Sinking Crown', No Residuary Power Remains With J&K: Respondents Argue [Day 14]
Supreme Court Asks Article 370 Case Petitioner To File Affidavit Accepting India's Sovereignty & Affirming Allegiance To Indian Constitution [Day 15]
Article 370 | Argument That Resurrection Of Article 370 Would Violate Basic Structure Too 'Far Fetched': Supreme Court [Day 15]
Article 370 | Petitioners Never Challenged India's Sovereignty; Can't Adopt Emotive, Majoritarian Interpretation Of Constitution : Sibal To Supreme Court [Day 15]