All that you need to know about Article 370 before SC's verdict today

A constitution bench has reviewed the challenge to the abrogation of Article 370, exploring the constitutionality of the process and its impact on Jammu and Kashmir's special privileges

A constitution bench led by Chief Justice of India (CJI) D Y Chandrachud is set to deliver its judgment on Monday, December 11, regarding the challenge to the abrogation of Article 370. This constitutional provision provided special privileges to Jammu & Kashmir, and its repeal has been a subject of intense debate and legal scrutiny.

The case, reserved for verdict on September 5, witnessed comprehensive hearings spanning 16 days. Both petitioners and the government presented their arguments, scrutinising the constitutionality of the procedure used to repeal Article 370 and the subsequent abolition of Jammu and Kashmir's statehood.

What is Article 370?
 

 

Article 370 was a key provision in the Indian Constitution that granted special status to the former state of Jammu and Kashmir. In July 1949, interim Prime Minister of J&K Sheikh Abdullah led negotiations with the Indian Constituent Assembly that ultimately led the adoption of Article 370. The article provided some autonomy to Jammu and Kashmir, such as allowing the state to have its own Constitution, a separate flag, and limited jurisdiction for the Indian government.

There was a provision in the article under Article 370(1)(c) stating that Article 1 of the Indian Constitution applies to Kashmir through Article 370. Article 1 lists the states of the Union. This means that it is Article 370 that binds the state of Jammu & Kashmir to the Indian Union. Although Article 370 can be removed through a presidential order, it would render the state independent of India unless new overriding laws were made.

Abrogation of Article 370
 

On August 5, 2019, the government of India, under Prime Minister Narendra Modi, decided to abrogate Article 370, Jammu and Kashmir's special status, through a presidential order. This move was accompanied by a proposal to bifurcate the state of Jammu and Kashmir into two separate Union Territories: Jammu & Kashmir, and Ladakh. The Union Territory of Jammu & Kashmir would have a legislature, while Ladakh would be without one.

Petitioner's arguments
 

Critics of the abrogation raised concerns about the decision's impact on the special status and identity of Jammu and Kashmir, as well as its potential implications for the region's autonomy and demographic composition. There were debates about the constitutional validity of the move, with legal challenges brought before the SC.

Petitioners argued that the Union utilised its parliamentary majority and executive orders to divide the full-fledged state into the union territories of Jammu & Kashmir and Ladakh, characterising it as an affront to federalism and constitutional principles.

Senior counsel Kapil Sibal contended that Article 370 had acquired a permanent character after the dissolution of the Jammu and Kashmir Constituent Assembly in 1957. The petitioners challenged the applicability of Article 368 (Parliament's power to amend the Constitution) to Article 370.

Centre's defence

The Modi administration's decision was led with the belief that it hindered the integration of Jammu & Kashmir with the rest of India and limited the region's development. Supporters of the abrogation argued that it would help bring socio-economic development, promote equal rights and opportunities, and ensure better governance in the region. They also contended that it would facilitate the application of national laws and programmes, which were previously not fully applicable in Jammu and Kashmir.

The government has continued to contend that the abrogation was essential for the complete integration of Jammu and Kashmir into the Union of India. Emphasizing progress in the region since August 2019, it asserted that elections were due, and once the situation normalised, full statehood would be reinstated.

The Centre highlighted a significant reduction in terrorism (45.2 per cent), infiltration (90.2 per cent), stone-pelting incidents (97.2 per cent), and casualties among security personnel (65.9 per cent).

The constitution bench

Along with CJI D Y Chandrachud, the Bench includes Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.

The Bench examined events such as the proclamation of the President's rule, Parliament's approval, and the subsequent reorganisation of the state. On August 5, 2019, the President issued the Constitution (Application to Jammu and Kashmir) Order, amending the Indian Constitution with Article 367(4), replacing the 'Constituent Assembly of the State' with the 'Legislative Assembly of the State' in Article 370(3). Subsequently, the Parliament abrogated Article 370 and passed the Bill to reorganise the state. The next day, the President declared the cessation of Article 370.

The Bench will be passing its verdict on the case on Monday, December 11.