23-08-2023 : The Supreme Court’s deliberations on the petitions challenging the abrogation of Article 370 continued, with the apex court delving into the nuanced aspects of Article 370’s provisions and implications. A five-judge bench, led by Chief Justice DY Chandrachud, weighed the inherent characteristics of Article 370 and its evolution following the culmination of the Jammu and Kashmir Constituent Assembly in 1957.
The court observed that Article 370 possesses an inherent “self-limiting character,” which seems to have naturally subsided after the termination of the Jammu and Kashmir Constituent Assembly in 1957. The case involves a batch of petitions challenging the abrogation of Article 370, which granted special status to the former state of Jammu and Kashmir.
Chief Justice Chandrachud, along with Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, postulated critical questions to senior advocate Gopal Sankaranarayanan, who represented one of the petitioners, Soayib Qureshi. This petitioner contested the Center’s decision to revoke Article 370 on August 5, 2019.
The court articulated its view that Article 370 had two definitive terminal points: the first being clause 2, necessitating the approval of all pre-constituent assembly decisions, and the second being the proviso to clause 3, allowing the President to declare Article 370’s cessation or operation with modifications solely based on the Constituent Assembly of Jammu and Kashmir’s recommendations.
Chief Justice Chandrachud noted that Article 370 remained silent on the post-constituent assembly period, suggesting that the absence of provisions indicated its self-sufficiency. He pondered whether this silence implied that Article 370 had effectively exhausted its role.
The Chief Justice further questioned if this line of reasoning could potentially lead to the Indian Constitution becoming the supreme document once Article 370’s function concluded. He postulated whether the Constitution of the federating unit could surpass the dominion of India’s Constitution.
Sankaranarayanan argued that Article 370’s purpose had concluded with the constituent assembly’s cessation, and it should have remained untouched. However, he acknowledged the necessity of incorporating the state of Jammu and Kashmir’s constituent assembly decisions into the Indian Constitution to render them effective.
The court highlighted that Article 370’s presence within the Indian Constitution indicated its inherent “self-limiting character.” It recognized that while Article 370 persisted in the Constitution, the provision itself hinted at its intrinsic limitations. It underscored that Article 370’s operation should naturally cease upon the constituent assembly’s dissolution.
While deliberating on the implications of Article 370, the court clarified that it was not asserting the unconstitutionality of all constitutional orders that facilitated the application of Indian Constitution provisions to Jammu and Kashmir. It acknowledged the extensive experience and contributions of statesmen over the past seven decades.
The court also heard arguments from other senior advocates representing various petitioners. However, the proceedings remained inconclusive and will continue with Attorney General R Venkataramani and Solicitor General Tushar Mehta presenting their arguments on behalf of the Center.
To maintain the continuity of the proceedings, Chief Justice Chandrachud announced that the constitution bench would convene on August 28, a day that would typically be reserved for hearing miscellaneous and fresh matters.
The case involves a series of petitions challenging the abrogation of Article 370 and the enactment of the Jammu and Kashmir Reorganization Act, 2019, which led to the bifurcation of the former state into two union territories – Jammu and Kashmir, and Ladakh. The comprehensive hearing underscores the Supreme Court’s commitment to addressing the complex legal and constitutional aspects associated with the Article’s abrogation.