A Constitution Bench headed by Chief Justice of India DY Chandrachud on Tuesday reserved its judgment in the challenge to the abrogation of Article 370 of the Constitution, which gave special privileges to Jammu and Kashmir.

The hearings, which saw submissions made by both petitioners and the government on the constitutionality of the procedure adopted to repeal the Article and the abolition of Statehood of Jammu and Kashmir, had spanned 16 days.

The government, represented by Attorney General R. Venkataramani, Solicitor General Tushar Mehta and advocate Kanu Agrawal, had argued that the abrogation was necessary to completely integrate Jammu and Kashmir into the Union of India. The government said the valley has prospered in the past four and a half years after the repeal of Article 370 in August 2019. It said elections were due in J&K, which would revert to full Statehood again once the situation on the ground returned to normal.

‘Attack on federalism’

Mehta said Jammu and Kashmir became a Union Territory in an “extraordinarily extreme situation”. He claimed that terrorism, infiltration, stone-pelting and casualties among security personnel had reduced by 45.2 per cent, 90.2 per cent, 97.2 per cent and 65.9 per cent, respectively, post the abrogation in 2019.

The petitioners, represented by a battery of senior lawyers including Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Dushyant Dave and Gopal Sankaranarayanan, said the union used brute majority in the Parliament and a series of executive orders issued through the President to divide a full-fledged State into the Union Territories of Jammu and Kashmir and Ladakh. They called it an attack on federalism and a fraud played on the Constitution.

The petitioners had argued that Article 370 had assumed a permanent character as soon as the Jammu and Kashmir Constituent Assembly dissolved in 1957 after the framing of the State Constitution. Sibal said Article 368 (Parliament’s power to amend the Constitution) did not apply to Article 370.

Series of events

The Constitution Bench, also comprising Justices SK Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, said its focus would be on the series of machinations which led to the abrogation of Article 370. The series of events which the Bench would look into would start with the dissolution of the Jammu and Kashmir State legislative assembly by the Governor under Section 53(2) of the J&K Constitution on November 21, 2018. 

The proclamation of President’s rule under Article 356 was issued a month later, on December 19, 2018. The Parliament had approved the proclamation of the President on January 3, 2019. The President’s rule was extended in J&K for six months with effect from July 3, 2019.

On August 5, 2019, the President issued the Constitution (Application to Jammu and Kashmir) Order which inserted a new provision, Article 367(4), in the Indian Constitution. This replaced the expression ‘Constituent Assembly of the State’ in the proviso to Article 370(3) with ‘Legislative Assembly of the State’. 

The same day had seen the Parliament abrogate Article 370 and pass the Bill to reorganise the State of Jammu and Kashmir. The next day saw the President declare that Article 370 has ceased to apply.

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