New Delhi witnessed a series of intensive deliberations as a Constitutional Bench of the Supreme Court took up a succession of pleas challenging the revocation of Article 370 of the Constitution. Led by Chief Justice of India DY Chandrachud, the Bench comprises five senior judges, including Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant. These proceedings have unfolded on every day except Mondays and Fridays.
Multiple petitions have been presented by political parties, individuals, lawyers, and activists, contesting the presidential order that led to the revocation of the special status of Jammu and Kashmir, and its subsequent division into two Union Territories. The crux of the arguments put forward so far revolves around the permanence of Article 370, especially after the dissolution of J&K’s constituent assembly. However, the Constitution Bench has expressed skepticism about this claim, asserting that “it is difficult to assert that Article 370 is inherently permanent and cannot be repealed.”
The Bench has asked the petitioner side to consider a hypothetical situation where the former state voluntarily sought the application of all provisions of the Indian Constitution. Additionally, it has been argued that the principle of federalism embedded in Article 370 cannot be nullified by any action taken by the President or Parliament.
The Bench has also emphasized that the surrender of sovereignty by Jammu and Kashmir to India was absolute and unconditional, transferring exclusive sovereignty to India. Chief Justice Chandrachud underscored that constitutional provisions requiring the consent of states do not compromise the sovereignty of the Indian Union. The Constitution of Jammu and Kashmir itself acknowledges the state’s integral status within the Indian Union.
Representing J&K political leader Akbar Lone, senior advocate Kapil Sibal unequivocally stated that the integration of Jammu & Kashmir with India has never been in question. However, Sibal’s suggestion of a Brexit-style referendum did not find favor with the Bench or the general public.
Another line of argument before the Supreme Court questions whether the Jammu and Kashmir Constitution of 1957 allows for altering the region’s special status. Despite this, the petitioners acknowledge the supremacy of the Indian Constitution over the former.
The debate revolves around Parliament’s assumption of the state legislature’s role in recommending the amendment of Article 370 and the state’s division into two Union Territories. Petitioners argue that there is a distinction between “constituent power” and “legislative power,” with a Legislative Assembly unable to transform into a Constituent Assembly.
The petitioners raise concerns that equating the two could potentially grant Parliament the authority to dismantle the Constitution’s basic structure. Chief Justice Chandrachud clarified that while Parliament amends the Constitution, it exercises constituent power within the confines of the Constitution, not as a Constituent Assembly.
The Centre justifies the abrogation of Article 370 by referring to the term “temporary provisions concerning the State of Jammu and Kashmir.” However, petitioners assert that the term “temporary” holds limited significance when interpreting a legal provision, citing prior Supreme Court judgments.
In summary, petitioners contend that the method employed by the Centre to revoke Article 370 is not legally sound. The Supreme Court will continue to hear arguments from the petitioners before inviting the Centre to present its oral submissions in defense of its actions.
The Centre, in its written submissions, defends the abrogation of special status by highlighting its positive impacts, including development, progress, security, and stability. The Union Home Ministry also points out that orchestrated violence has significantly decreased.
Intervention applications by Kashmiri Pandits and their organizations, while not entirely independent, bolster the Centre’s position. The ongoing proceedings in the Supreme Court are expected to culminate in a historic decision that will have a lasting impact on the country’s constitutional landscape.
