28-08-2023 : The Supreme Court of India engaged in a thorough examination of the Centre’s argument regarding the abrogation of Article 370, which granted special status to the erstwhile state of Jammu and Kashmir. The central premise of the Centre’s submission revolved around the notion that the Constitution of Jammu and Kashmir is “subordinate” to the Indian Constitution, establishing the latter on a higher pedestal within the constitutional hierarchy. The deliberations occurred before a distinguished five-judge bench, led by Chief Justice DY Chandrachud, known for their expertise in constitutional matters.
While the Court exhibited a degree of concurrence with the Centre’s stance, a point of contention emerged concerning the nature and role of the Constituent Assembly of the former state, which had been dissolved in 1957. The Centre contended that characterizing the disbanded assembly as a legislative assembly lacked veracity, a perspective that the bench did not uniformly adopt. However, the focus of the Centre’s submission extended beyond this aspect, aiming to debunk the common belief among citizens that the special provisions accorded to Jammu and Kashmir were merely a privilege rather than a form of discrimination.
Unveiling the narrative further, the Centre refrained from explicitly naming the mainstream political parties of the erstwhile state but indicated that citizens had been led astray by the notion that the special provisions were emblematic of a privilege. The Centre’s legal representatives emphasized that even in the present day, there are political factions advocating for the retention of Article 370 and Article 35A, which offered special rights to permanent residents of the region.
Solicitor General Tushar Mehta, representing the Centre, provided detailed insight into the constitutional dynamics, asserting that sufficient evidence supported the claim that the Constitution of Jammu and Kashmir occupied a position subordinate to that of the Indian Constitution. He contended that the Constituent Assembly of Jammu and Kashmir functioned, in essence, as the state’s legislative assembly, enacting laws and shaping internal governance. Mehta recognized the argument that the Constitution of India held a superior standing compared to the Constitution of Jammu and Kashmir, acknowledging the complexity of this constitutional interplay.
The Solicitor General also underscored the transformative impact of Article 370, enabling the President and the state government to amend, alter, or even eliminate any part of the Indian Constitution applicable to Jammu and Kashmir. In doing so, Mehta highlighted the consequences of the 42nd amendment, which omitted terms such as “Socialist” and “Secular” from the Jammu and Kashmir context. He elaborated on the disparities between the two constitutions, emphasizing the distinct provisions, modifications, and even omissions that existed in the regional constitution.
A crucial facet of the Centre’s presentation centered around Article 35A, which granted exclusive privileges to permanent residents of the erstwhile state. Mehta scrutinized this provision as discriminatory, exemplified by the unequal treatment of non-permanent residents, particularly in aspects like property ownership, employment, and educational opportunities. Mehta urged the Court to approach these issues through the lens of citizens’ perspectives, advocating for a holistic understanding of the impact of these provisions.
Chief Justice Chandrachud intervened to encapsulate Mehta’s arguments, explaining that the introduction of Article 35A stripped individuals of fundamental rights like equality and the freedom to pursue professions across the country. He also acknowledged that citizens were misled into perceiving these provisions as privileges rather than disparities. The Chief Justice further noted the presence of political parties before the Court that continued to champion Article 370 and Article 35A, which the Solicitor General had earlier indicated.
Mehta concluded by affirming that the Constitution of Jammu and Kashmir needed repeal, as its coexistence with the Indian Constitution was untenable. He highlighted historical instances, including the dissolution of the legislative assembly in 2018 and subsequent actions, to demonstrate the need for such repeal. The hearing, marked by its depth and intricacy, adjourned without a conclusive outcome and was set to resume the following day.
This legal battle emerged in the aftermath of the abrogation of Article 370, a move that triggered significant constitutional and political debates. Multiple petitions challenging the abrogation, alongside the Jammu and Kashmir Reorganisation Act of 2019, which led to the division of the erstwhile state into two union territories, were referred to a Constitution bench in 2019.