Article 370 timeline: The special status and the road ahead for Jammu and Kashmir

During the parliamentary discussions leading to its removal, Union Home Minister Amit Shah argued that Article 370 had hindered Jammu and Kashmir from aligning with the rest of India, instead of facilitating its merger. (Representative image)

The Supreme Court on December 11 upheld the validity of the presidential order revoking Article 370 from the Constitution as Chief Justice of India DY Chandrachud said the President had the authority to apply all provisions of the Constitution to Jammu and Kashmir with the agreement of the Centre, without necessitating the concurrence of the Assembly.

The current status 

The Union territories of Jammu-Kashmir and Ladakh will have all the rights enshrined in the Constitution of India and benefits of all the Central Laws.

The major decisions taken by the Centre in the last four years will also continue to exist and further decisions will have no legal implications. People from outside Jammu and Kashmir can buy land in the UT as the Centre has paved the way after issuing a gazette notification, but many people were staying away due to the case being subjudice.

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The rules allow domicile certificate to the husbands of local women married to people from outside Jammu and Kashmir will also continue to exist. People who have resided in the UT for at least 15 years, or have studied for seven years and appeared in Class 10 or 12 examination in an educational institution in the region, and their children, are eligible for grant of domicile status.

Now, let's take a look back at the entire episode of Jammu and Kashmir reorginsation and how it all unfolded on December 11.

The Abrogation

Article 370, which granted special status to the former state of Jammu and Kashmir, was revoked by the Centre on August 5, 2019, as part of an effort to fully integrate the region with the Union of India. Additionally, Article 35A was repealed and the Jammu and Kashmir Reorganisation Bill was passed in the Parliament.

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Under Article 370, Jammu and Kashmir had the autonomy to have its own constitution and flag, while Article 35A restricted non-residents from purchasing land or securing government jobs within the state, which is now designated as a Union Territory.

During the parliamentary discussions leading to its removal, Union Home Minister Amit Shah argued that Article 370 had hindered Jammu and Kashmir from aligning with the rest of India, instead of facilitating its merger.

The legislative action resulted in the bifurcation of the erstwhile Jammu and Kashmir and Ladakh into two Union Territories through an official notification on October 31, 2019.  Jammu and Kashmir was formed with a legislature and Ladakh without a legislature.

SC intervention

After the annulment of Article 370, various sectors of society initiated legal action by filing petitions in the Supreme Court to contest the Centre’s decision. These petitions sought the court’s intervention concerning the detention of individuals, the communication blackout, and also challenged the legality of the Jammu and Kashmir Reorganisation Act.

Among the petitioners was Mohammad Akbar Lone, a Member of Parliament from the Jammu and Kashmir National Conference. He underscored that elected representatives were not consulted prior to the enactment of this decision.

Anuradha Bhasin, the editor of Kashmir Times, brought attention to the “suppression of press freedom” in the Valley, highlighting the alleged prohibition on Srinagar-based newspapers from publishing. Approximately 20 petitioners brought their grievances before the apex court.

Response of the apex court

The Supreme Court commenced its examination of the petitions in August 2019, initiating hearings led by a three-judge bench helmed by former chief justices Ranjan Gogoi and SA Bobde, and Justice Abdul Nazeer.

During these proceedings, the case was referred to a Constitution Bench for further deliberation. Subsequently, in September 2019, a five-judge Constitution Bench under the leadership of then Justice NV Ramana was set up to address a series of pleas related to the revocation of Article 370.

By October 2019, the court had granted the Centre a four-week period to respond to the bundle of petitions specifically concerning Article 370. During this time, Justice Sanjay Kishan Kaul remarked that the court holds the ability to “turn the clock back”.

However, in a later development, months down the line, the Supreme Court Bench declined to transfer the petitions challenging the abrogation of Article 370 to a larger bench. On March 2, 2020, the court said it does "not see any reason to refer these petitions to a larger bench" and thereby indicated the decision to continue addressing the petitions within the existing framework of the Bench.

Up for the final verdict 

After a significant delay of about two years, the Supreme Court, in February 2023, acknowledged the need for an expedited listing of the petitions following a plea from a senior advocate representing one of the parties involved.

Subsequently, in July 2023, Chief Justice of India DY Chandrachud spearheaded the setting up of a new Constitution Bench comprising himself, Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant.

In July, during the hearing, the Court announced the initiation of day-to-day hearings for the petitions, starting from August 2, 2023. It’s noteworthy that by this time, four chief justices had already retired, underscoring the duration and complexity of the legal proceedings.

Throughout the hearing process, spanning from August 2 to August 23, the counsels representing the petitioners presented arguments, totalling 18 different advocates. Subsequently, during the period between August 24 and September 4, the bench heard arguments from 21 counsels representing the respondents. Among the respondents was a group representing Kashmiri Pandits, supporting the 2019 governmental action.

Plea of petitioners

The central point of the Article 370 argument revolved around its provision stating that it shall cease or become operational based on the President’s notification, typically upon the Constituent Assembly’s recommendation.

The petitioners contended that with the Assembly no longer existing, no entity other than the Constituent Assembly could revoke Article 370. They also challenged the President of India’s notifications, historically reliant on the state government’s recommendations, extending the Indian Constitution to Jammu and Kashmir.

They also questioned whether Article 370 was transient or permanent, highlighting the “illegality” of the reorganisation that downgraded the erstwhile state into Union Territories.

Government response

In response, the Centre emphasised that due process was meticulously followed during the abrogation of Article 370 and 35A. It asserted that the state had ceded its sovereignty to the Union of India during the accession.

The Centre argued that the special status conferred by Article 370 was of a temporary nature, thus justifying its revocation. Solicitor General Tushar Mehta underscored that the Indian Constitution holds precedence over the now-defunct Jammu and Kashmir Constitution, emphasising the hierarchy of legal authority.