Article 370 judgment: LIVE UPDATES from Supreme Court

The Supreme Court of India will deliver its verdict in the Article 370 abrogation case today.

A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant will deliver its verdict in a batch of petitions challenging the Central government's 2019 move to revoke Article 370 which conferred special status on the erstwhile State of Jammu and Kashmir.

The Court had the matter for 16 days before reserving its verdict on September 5.

Over 20 petitions were filed before the Supreme Court challenging the Central government's 2019 decision to abrogate Article 370 of the Constitution, which resulted in the revocation of Jammu and Kashmir's special status. The erstwhile State was subsequently bifurcated into two Union Territories.

When the matters were listed in March 2020, a five-judge Constitution Bench of the Supreme Court had decided not to refer the batch of petitions to a seven-judge Constitution Bench, despite some petitioners seeking such a reference.

On August 2, the top court began final hearing in the matter. It heard the case for 16 days before reserving its judgment.

The petitioners, represented by a battery of senior lawyers including Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Dushyant Dave and Gopal Sankaranarayanan, submitted that the Union of India used brute majority in Parliament to issue a series of executive orders through the President to divide a full-fledged State into the Union Territories of Jammu and Kashmir and Ladakh.

The petitioners termed it an attack on federalism and a fraud on the Constitution.

What did the Central government argue in the case?

1. Jammu and Kashmir did not have any special status from the beginning and the draft accession agreement was the same for all princely States;

2. 'Psychological duality' prevailing in the region ended with the abrogation of Article 370 and resulted in a large number of people getting fundamental rights;

3. Article 370 was not a kind of privilege that could not have been taken away and it was a self-extinguishing legislation. This is because whenever a word in Article 370 became otiose, it was replaced. like Sadr-e -Riyasat was replaced by Governor;

4. Whenever there is President's rule, the Parliament exercises the role of the State legislature and this was the same for all the States;

5. Abrogation was justified since it was done to counter the consistent, repeated situation the nation had been facing for decades especially since one part of the territory is occupied by Pakistan. The decision to abrogate was not taken as a knee-jerk decision and these are policy considerations;

6. Jammu and Kashmir is a Union Territory only as a temporary measure, and its Statehood would be restored, although Ladakh would remain a Union Territory. Full statehood will be restored over a period of time and no fixed timeline can be given now;

7. The argument that during President's Rule, you could not have taken an irreversible decision without resorting to Article 368 is not correct. If Article 370 was to enable complete national integration of Jammu and Kashmir, then that purpose was over;

8. Federalism is a part of the basic structure of the Constitution, but federal diversity can still exist within federalism and the Indian federation has no space for Article 370. Making Article 370(1) permanent will make an unconstitutional provision remain in the Constitution;

9. Even when the Constituent Assembly was being dissolved, the members could not have chosen to keep Article 370 or do away with it on their own since it is the President who would take the final call and the President could make his own choice;

10. Constitutional amendments are tested with reference to basic structure doctrine. The law cannot be held to be violative of basic structure. It is only constitutional amendments. When a law is made to protect civil liberties, it is aligned with Article 21 and it is aligned with basic structure;

11. The ultimate legal sovereignty rested with the Union government. Article 370 could have been got rid of by means of its proviso (3). Article 370 has a flavor of constituent, legislative and executive power. When plenary power is entrusted to the President, it should not be read with any kind of restrictions. Such extraordinary power need not be read with any kind of restrictions.

Five main arguments by the petitioners against the abrogation of Article 370

1. Article 370 became permanent after the Constituent Assembly of Jammu and Kashmir ceased to exist. As per clause 3 of Article 370, the said Article can be repealed only on the recommendation of the constituent assembly of Jammu and Kashmir. This body was dissolved in 1957 and Article 370 became permanent due to the same.

2. Article 370 was repealed in a roundabout way by first amending Article 368 and substituting the words ‘Constituent Assembly’ of Jammu and Kashmir with the Legislative Assembly of Jammu and Kashmir. This was done since the Constituent Assembly which was empowered to do so had dissolved in 1957. This substitution is a colourable exercise of power. Even otherwise, the Legislative Assembly was not in session during the abrogation of Article 370 since Jammu and Kashmir was under the President’s rule. Hence, the Presidential order of August 7 abrogating Article 370 was done on the recommendation of the Parliament and not the legislative assembly of Jammu and Kashmir. The powers of the legislative assembly of a State cannot be taken over by the Central government or Parliament;

3. When a proclamation had been issued by the President suspending the erstwhile State Legislative Assembly of Jammu and Kashmir, there are implied restrictions on exercising Article 370(3), which provides for the repeal of Article 370. A Legislative Assembly cannot be converted into a Constituent Assembly because the intent of the Legislature can be partisan, but that is not the case for the Constituent Assembly;

4. Central government's powers under Article 3 (on formation of new States and alteration of areas, boundaries or names of existing States) cannot be used to change a State into a Union Territory as was done in the case of Jammu and Kashmir. Any change to the boundaries of a State requires the Constitution to take the views of the State. The existence of States is a part of the basic structure and Jammu and Kashmir cannot be an exception to this.

5. If the Government of India wanted to 'completely integrate' Jammu and Kashmir into India, then a merger agreement should have been executed as it happened with other princely States. There was no such merger agreement and Jammu and Kashmir got constitutional autonomy. The Muslim majority population of Jammu and Kashmir had chosen to be with India under the Constitutional promise of Article 370.

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