SC verdict on Article 370 today: Here's a recap of key arguments, what Centre said

Four and a half years after Prime Minister Narendra Modi’s government abrogated Article 370 of the Constitution and then bifurcated Jammu and Kashmir into two Union Territories, the Supreme Court, on Monday (December 11) will pronounce its judgment on a clutch of petitions that had challenged the Centre’s move of stripping the erstwhile state of its special status.

A five-judge constitution Bench of the apex court, headed by Chief Justice of India DY Chandrachud had reserved its verdict on the petitions on September 5 after a 16-day marathon hearing that saw a battery of legal luminaries, including constitution experts such as Rajeev Dhawan, Kapil Sibal, Gopal Subramanium, Chander Uday Singh and Dushyant Dave, arguing against the revocation of Article 370. On their part, the Centre’s top law officers, including Attorney General R. Venkatramani and Solicitor General Tushar Mehta, stoutly defended the abrogation.

The arguments in the case had proceeded after the CJI had, on August 3, outlined two key issues for the consideration of the constitution Bench, which also comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant. “For our consideration these are the two issues – whether Article 370 acquired a permanent feature in the Constitution... And suppose it did not, then how is it to be abrogated,” the Bench had said.

Through the course of submissions before the court, counsel for petitioners challenging the abrogation presented seminal arguments which, in their view, demonstrated the unconstitutionality of the Centre’s action.

Here is a recap of the key arguments by the counsel for petitioners and the Centre’s rebuttal. This is, however, not an exhaustive list of the issues that were canvassed before the apex court but only a gist of the submissions.

1. Was Article 370 intended to be a permanent provision under the Indian Constitution?

Questions by the Bench:

During the arguments, the Bench had asked, on several occasions, if the counsel challenging the abrogation were of the view that Article 370 had assumed a permanent role in the Constitution, and as such, become part of the Basic Structure making it immune from amendments or repeal, or if they merely opposed the manner in which the Centre had revoked the Article. A probing query by the Bench had been: If Article 370 became a permanent part of the Constitution after 1957 (when the Constituent Assembly of J&K, which had the power to suggest repeal of the Article, ceased to exist) and if this was the case then why was the Article placed under Part XXI of the Constitution (temporary, transitional and special provisions).

Arguments by the petitioners:

All lawyers appearing for petitioners in the case were unanimous in their submission that though the Article was originally meant to be a temporary provision, upon the dissolution of the Constituent Assembly of J&K, it had assumed permanence. Senior advocates, including Dhawan, Subramanium and Sibal, had argued that since the Constituent Assembly of J&K, before it ceased to exist in 1957, had adopted a Constitution for the erstwhile state and left Article 370 unchanged, the Indian Parliament had no powers to repeal the Article. Subramanium had submitted that “altering the structure of the constitutional relationship between J&K and the Union is an exercise of constituent power, and therefore can only be exercised by a Constituent Assembly, convened for that purpose”.

Arguments by the Centre:

The law officers of the government had maintained that Article 370 was merely a temporary provision and, once the Constituent Assembly of J&K ceased to exist, the powers to amend or repeal the Article were fully vested in the Indian Parliament. The Attorney General and the Solicitor General had also repeatedly contended that there could not be two separate and divergent constitutions governing a state under the Indian Union and the rest of the country.

2. Could the Indian Parliament act as the Constituent/Legislative Assembly of J&K in order to repeal Article 370?

Arguments by the Petitioners:

Counsel for the petitioners emphatically rejected this view. Further, the petitioners also asserted that the Supreme Court, in Prem Nath Kaul vs. State of J&K, had declared that even amendments to Article 370 could only be made as per the procedure laid down under Article 370 (3) – i.e. through the recommendation of the Constituent Assembly of J&K. It was pointed out that the apex court’s judgment in Prem Nath Kaul had itself come in 1959 when the Constituent Assembly of J&K had already ceased to exist, thereby illustrating the court had already ruled that the Constituent Assembly of J&K and the Indian Parliament were not interchangeable entities.

Argument by the Centre:

The government had claimed that once the Constituent Assembly of J&K ceased to exist, its powers were automatically transferred to the Legislative Assembly of the state and, when the state was under President’s Rule (as it was when Article 370 was abrogated on August 5, 2019), the same powers were vested in the Indian Parliament.

3. Was the bifurcation of the erstwhile state of J&K into two Union Territories of J&K and Ladakh constitutionally permissible?

Arguments by the petitioners:

Again, the petitioners have argued that the bifurcation was wholly illegal and violative of the basic structure of federalism as enshrined in the Constitution. Lawyers appearing for the petitioner asserted that under the constitutional scheme, formation of new States and alteration of areas, boundaries or names of existing States, can only be done after a Bill for reorganisation of a state is referred to and subsequently consented to by the legislature of that state. In the case of J&K, the bifurcation came into effect when the state was under President’s Rule and the J&K Assembly had already been dissolved. As such, the J&K Assembly had neither examined the Bill for the state’s reorganisation nor consented to the bifurcation.

The lawyers also stressed that Parliament has no explicit powers to “degrade the constitutional status of a State to a union territory”. It was also pointed out that both, the abrogation of Article 370 and the bifurcation of J&K, were carried out when the erstwhile state was under President’s Rule.

Subramanium had canvassed: “President’s Rule is, by its very nature, a temporary phenomenon, designed to enable the Union to take over the administration of a State as a caretaker, until such time that the state legislative assembly can be restored. President’s Rule, therefore, does not authorise permanent and irrevocable restructuring of a State’s constitutional status, to the extent that any successor assembly is no longer able to undo such changes (because its own power has been diminished)”.

Contention of the Centre:

The bifurcation was legally tenable and it was also a temporary measure since the Centre planned to restore statehood of J&K once “normalcy” returned to the UT.