The Supreme Court Upholds the Abrogation of Article 370, Affirms Its Temporary Nature

Author : Yogricha

December 12, 2023

MPHC

Overview: A Constitution Bench, led by Chief Justice of India (CJI) D.Y. Chandrachud, issued a unanimous verdict on Monday (11 December 2023), affirming the Central government's decision in 2019 to revoke Article 370 of the Constitution, which had granted special status to the former state of Jammu and Kashmir (J&K).

The Bench emphasized that Article 370 was originally designed as a 'temporary provision,' enacted during wartime conditions in the State, with a specific transitional purpose.

The Bench delivered three separate verdicts: one by CJI DY Chandrachud, joined by Justices Gavai and Surya Kant, while Justices SK Kaul and Sanjiv Khanna each authored concurring judgments.

The Court clarified that J&K had no retained internal sovereignty post-integration, and the State Government's concurrence was not necessary for the application of the Indian Constitution to the State.

In light of Solicitor General Tushar Mehta's statement indicating the government's intention to restore J&K's statehood promptly, the Court refrained from evaluating the legality of reorganizing the State into the Union Territories of J&K and Ladakh. Nevertheless, it upheld the creation of Ladakh as a Union Territory.

Backgound of the Case:

On August 5th, 2019, President Ram Nath Kovind issued a presidential order, which brought about an amendment to Article 367 of the Constitution, detailing the principles of Constitutional interpretation. This amendment replaced the reference to the 'Constituent Assembly' in Article 370(3) with the 'Legislative Assembly.' Initially, Article 370 could only be altered with the recommendation of the Jammu and Kashmir 'Constituent Assembly.'

It effectively empowered the Union to modify Article 370 without the need for the Constituent Assembly's recommendation. Given that Jammu and Kashmir was under President's Rule at the time, the authority of the Jammu and Kashmir Legislative Assembly was transferred to the Union Parliament. Consequently, shortly after the issuance of, the Rajya Sabha proposed the revocation of Article 370 through a Statutory Resolution.

On August 6, 2019, President Kovind issued a Proclamation, to implement the Rajya Sabha's recommendation. All provisions of Article 370 ceased to be effective, except for clause 1, which was amended to declare that the Constitution of India now applies to the State of Jammu and Kashmir.

This change abolished the special status of Jammu and Kashmir. On the same day, Advocate Manohar Lal Sharma submitted a petition under Article 32, challenging the constitutionality of the modification to Article 370.

Subsequently, on August 9, 2019, the Union Parliament divided the State of Jammu and Kashmir into two Union Territories by passing the Jammu and Kashmir Reorganisation Act, 2019. These two newly created Union Territories are Jammu and Kashmir and Ladakh, with only the former retaining a legislative assembly.

Additionally, two more Article 32 petitions were filed, one by Kashmiri advocate Shakir Shabir and the other by Jammu and Kashmir National Conference leaders Mohammed Akbar Lone and Hasnain Masoodi.

The Legal Odyssey of the case:

August 28, 2019: A three-Judge Bench, presided over by former CJI Rajan Gogoi, referred the case to a five-Judge Constitution Bench.
October 1, 2019: A 5-Judge Constitution Bench of the Court, comprising Justices N.V. Ramana, S.K. Kaul, R. Subhash Reddy, B.R. Gavai, and Surya Kant, resolved to commence hearing the case starting November 14, 2013. The petitioners had requested that the case be presented before a larger Bench. On March 2, 2020, the Bench declined to refer it to a larger Bench.
July 3, 2023: The Supreme Court scheduled the matter for consideration before a Constitution Bench led by Chief Justice D.Y. Chandrachud.
July 11, 2023: The Constitution Bench, under the leadership of CJI Chandrachud, decided to commence the case's hearing on August 2, 2023.
December 11, 2023: The Constitution Bench upheld the Union's abrogation of Article 370, reasoning that this provision was a temporary measure intended to facilitate the integration of Jammu and Kashmir into India.