Explained | Case so far in SC against abrogation of Article 370

Four years after the Centre scrapped Article 370, which granted a special status to the erstwhile state of Jammu and Kashmir, the Supreme Court is set to pronounce its verdict on Monday (December 11) on a bunch of petitions challenging the controversial move.

A five-member constitution bench of the apex court headed by Chief Justice of India (CJI) DY Chandrachud had on September 5 reserved its verdict after a 16-day marathon hearing on 20 petitions that began in August this year. The other judges on the bench are Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.

The Federal takes a look at the case background.

What happened in August 2019

The Union government on August 5, 2019 abrogated Article 370, along with Article 35A, and stripped J&K of the special status it was granted after its merger in the Indian Union on October 27, 1947, through the Instrument of Accession. While scrapping the articles, the Centre also got Parliament’s nod on the Jammu and Kashmir Reorganisation Act, 2019, which sought to divide the state into two Union Territories (UTs), Jammu and Kashmir and Ladakh. Under the Jammu and Kashmir Reorganisation Act, however, Jammu and Kashmir retained its legislative assembly. Ladakh, on the other hand, got the status of a Union territory without an independent legislature.

The Centre’s move was challenged by several petitioners, including Dr Charu Wali Khanna, Mohammed Akbar Lone, Hasnain Masoodi, Shakir Shabi, Manohar Lal Sharma, Sohaib Qureshi and Anuradha Bhasin and We the Citizens, a civil society group.

During the course of the hearings which went on for 16 days, Article 370 and Article 35A came in for intense scrutiny from the top court, which made several observations with regard to the finality of the accession of Jammu and Kashmir and the powers of Parliament.

The apex court heard arguments put forth by senior advocate Gopal Shankarnarayanan, Menaka Guruswamy, Nithya Ramakrishnan, Dushyant Dave, Nithya Ramakrishnan, Raju Ramachandran, Gopal Sankaranarayanan, ML Sharma and Shakir Shabir, on behalf of the petitioners. The Centre was represented by Attorney General R Venkataramani, Solicitor General (SG) Tushar Mehta, and senior advocates Harish Salve, Rakesh Dwivedi and V Giri, among others.

What the petitioners said on the abrogation

The petitioners argued that the abrogation of Article 370 and Article 35A was a “fraud on the Constitution” and an attack on the federal polity of the country.

Senior advocate Kapil Sibal appeared on behalf of National Conference leader Mohd Akbar Lone, while defending Article 370, saying that the abrogation was a fraud on the Constitution. “A unilateral executive decision cannot change the terms of a relationship constitutionally embedded in Article 370. An executive act of the Union of India cannot unilaterally alter provisions of the Constitution of India as applicable to the State of J&K. Ultimately, this was a political decision taken in the context of the situation prevailing, right? And the complete abrogation must also be a political decision. It's a fraud on the Constitution,” Sibal said in the court.

Defending the annulment of the constitutional provisions for Jammu and Kashmir, Solicitor General Mehta contended that there was no “constitutional fraud” in the move. The constitution of Jammu and Kashmir was subordinate to the Constitution of India and its constituent assembly was a legislative assembly making laws, Mehta further argued.

What CJI Chandrachud did

During the course of the arguments, Chief Justice Chandrachud tested the Centre’s decision on the principle of federalism and asked if the government had adhered to the principle while abolishing J&K’s status as a full-fledged state.

Chandrachud referred to Article 3 of the Constitution and said that the Centre first dissolved the state legislature and then proclaimed President’s Rule under Article 356. Article 3 makes it mandatory for the Union government to consult the state assembly before changing the status of a state. However, the Center while imposing President’s rule did away with the provisions of Article 3, the CJI observed.

When the Solicitor General averred that Parliament took over the role of the state legislature, Chandrachud threw a loaded question at him, “So, are you saying that Parliament would then give its views to itself about the alteration of Jammu and Kashmir from a State to Union Territories and also enact the law for reorganisation of the State? Would that really be consistent with the federal structure?”

At this point, Mehta assured the top court that the bifurcation of Jammu and Kashmir into UTs was a “temporary measure” and said statehood would be restored to it in the near future. However, Ladakh would remain a Union Territory, he added.

What's the Ladakh question

The bifurcation of Ladakh from J&K as an autonomous region under the central rule, which is devoid of any representation, also came in for intense debate in the top court.

Menaka Guruswamy, who argued on behalf of other petitioners, contended saying, “It is not about the constituent assembly of Jammu and Kashmir alone. It is about the promise made by the Indian Constitution. The Ladakh Autonomous Hills Development Council Act provided for decentralised autonomous bodies for governance and it is rendered null and void. Plus, they also have no representation.”

“This case is not only for Kashmiris, it opens a vista for various multifarious abuses that the executive can hurl if this kind of power is exercised in the future,” senior advocate Gopal Shankarnarayanan, who appeared for Sohaib Qureshi, an Advocate on Record, said. Upon this, the CJI observed, “If the terminal point of 370 is the Constituent Assembly's work, then is it not necessary that the work of the Constituent Assembly of the state of J&K has to be embodied in this Constitution to make it operational.”

In one of the hearings, the accession of the state to the Indian Union also came into discussion.

The constitutional bench opined that the imposition of constraints on Parliament’s legislative power over a state did not water down India’s sovereignty over states in the Indian Union. The top court referred to Article 1 of the Constitution and observed that J&K’s inclusion in the article only meant that the sovereignty of the state was ceded to India completely and irrevocably.

The demerits of Article 35A

The Supreme Court, during the course of a hearing on August 28, also underlined the discriminatory provisions of Article 35A. Chief Justice Chandrachud observed that while Article 35A provided special privileges to “permanent residents”, as defined by the J&K legislature, it denied fundamental rights to non-resident citizens.

“Article 35A gave special rights and privileges to permanent residents and virtually took away the rights of non-residents. These rights included the right to equal opportunity of State employment, right to acquire property and the right to settle in Jammu and Kashmir,” Chandrachud observed.

The Supreme Court will pronounce its verdict on the vexatious issue on Monday (December 11).