MC Explains: What is Article 370? What was argued in Supreme Court for and against its abrogation?

SC to deliver judgment in challenges to abrogation of Article 370 on December 11

A five-judge bench of the Supreme Court will on December 11 deliver its judgment on challenges to the abrogation of Article 370, which granted a special status to Jammu and Kashmir. The batch of pleas challenging the abrogation was reserved for judgment on September 2 after being heard for 16 sessions.

The five-judge bench that will deliver the judgment is led by Chief Justice of India DY Chandrachud and comprises Justices SK Kaul, Sanjiv Khanna, BR Gavai and Surya Kant.

The petitioners who had challenged the abrogation were represented by senior advocates such as Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Zaffar Shah, and Dushyant Dave, among others. The parties who were in support of the abrogation were represented by Attorney General R Venkataramani, Solicitor General Tushar Mehta, senior advocates Harish Salve, Rakesh Dwivedi, V Giri and others.

Moneycontrol explains what Article 370 is, why the government abrogated it and what was argued in the court for and against the abrogation.

What is Article 370?

Article 370 of the Indian Constitution had accorded special status to Jammu and Kashmir. The provision, which was enacted after the instrument of accession was signed by the Indian government and the Maharaja of Kashmir, restricted the powers of the parliament with respect to the state.

The Article accorded autonomy to the state and noted that the power of the parliament of India is limited with respect to Jammu and Kashmir. The article also specified that the President of India has the power to issue orders on whether provisions of the Constitution of India would be applicable to the state. The Indian parliament was obligated to hold consultations with the state government to pass any law that would be applicable to the state.

However, Article 370 also empowered the President of India to abrogate it with the consent of the Constituent Assembly of Jammu and Kashmir.

Why did the government abrogate Article 370?

In June 2018, Jammu and Kashmir came under governor’s rule after the state government collapsed. In November 2018, the governor dissolved the legislative assembly and paved the way for the president’s rule in December 2018.

In August 2019, the President passed an order to amend Article 370, replacing the words ‘Constituent Assembly’ of the state with ‘Legislative Assembly.’

As per Article 370, the Central government had to take the consent of the constituent assembly to make provisions of the Constitution applicable to the state. In its absence, the central government or parliament had no restrictions on its powers. With Jammu and Kashmir under President’s rule, the power of the legislative assembly was with the parliament of India.

At the confluence of all these circumstances, the Union government removed the special status for Jammu and Kashmir and bifurcated it into the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. As a result, Article 370 stood abrogated.

The government defended the abrogation in an affidavit in the court, stating that the entire region of Jammu and Kashmir had witnessed an unprecedented era of peace, progress and prosperity, with street violence orchestrated by terrorists and secessionists becoming a thing of the past.

What was argued against abrogation?

The petitioners argued that Article 370 cannot be abrogated in the way it was done by the central government. According to the lawyers, the last sitting of the Jammu and Kashmir Constituent Assembly took place in 1957 and it was dissolved without any decision on Article 370, hence it attained finality.

It was contended that the President could obtain the recommendation only from the constituent assembly and hence the abrogation could not have been carried out in 2019. The petitioners argued that the Constitution does not empower the parliament to change a state into a Union territory and hence the abrogation was invalid. Furthermore, it was contended that the instrument of accession was signed maintaining the state’s autonomy while being a part of the country, by taking away its autonomy the terms of accession were violated.

What was argued in favour of abrogation?

The government argued that Article 370 was a temporary provision and once the constituent assembly was dissolved in 1957, the president had the power to abrogate it without holding any consultation. It was further argued that the president of India was not bound by the recommendation of the constituent assembly of the state but was only required to take its recommendation, under such circumstances, he could abrogate the article in the absence of a constituent assembly.

The central government contended that it had the powers and the authority under the Constitution, furthermore, all the elements of statehood have been retained in the present form of Jammu and Kashmir. On the aspect of autonomy, the central government argued that while the state retained its autonomy, it had given its sovereignty to India.