Abrogation of Article 370: Constitution Bench to Hear Arguments from Aug 2, 2023
Challenge to the Abrogation of Article 370Judges: D.Y. Chandrachud CJI, S.K. Kaul J, Sanjiv Khanna J, B.R. Gavai J, Surya Kant J
Today, a Constitution Bench of the Supreme Court scheduled a batch of petitions challenging the abrogation of Art. 370 of the Constitution to be heard on August 2nd, 2023. The Bench comprising Chief Justice D.Y. Chandrachud and four senior most judges of the Court also gave the parties procedural instructions for the hearings.
Background
Article 370 of the Constitution of India provided the State of Jammu and Kashmir with a special constitutional status. The provision substantially limited Parliament’s power to legislate for the State compared to other states.
On August 5th, 2019, the Union government diluted Article 370, revoking Jammu and Kashmir’s special status. First, President Ram Nath Kovind issued presidential order CO 272. This Order allowed the Union to amend Article 370 without the recommendation of the Constituent Assembly.
Since J&K was under President’s Rule at the time, the powers of the Jammu and Kashmir Legislative Assembly were vested in the Union Parliament. So, a few hours after CO 272 was issued, the Rajya Sabha recommended the abrogation of Article 370 through a Statutory Resolution under Article 370(3).
On August 6, 2019, President Kovind issued a Proclamation, CO 273, putting the Rajya Sabha’s recommendation into effect. All clauses of Article 370 ceased to operate, except Clause 1 which was amended to state that the Constitution of India applies wholly to the State, removing the special status awarded to Jammu and Kashmir.
On August 9, Parliament passed the Jammu and Kashmir Reorganisation Act, 2019. This Act bifurcated the State of Jammu and Kashmir into two Union Territories—J&K and Ladakh.
Petitions were filed challenging the constitutionality of the dilution of Article 370 and the bifurcation of the State into two Union Territories.
On August 28th, 2019, a 3-Judge Bench led by former CJI Rajan Gogoi referred the case to a 5-Judge Constitution Bench.
On October 1st, 2019, 5-Judge Constitution Bench of the Court comprising Justice N.V. Ramana, S.K. Kaul, R. Subhash Reddy, B.R. Gavai and Surya Kant decided to hear the case from November 14th, 2013. The petitioners sought the case to be placed before a larger Bench. On March 2nd, 2020, the Bench refused to refer it to a larger Bench.
On July 3rd, 2023, the Supreme Court listed the matter to a Constitution Bench led by Chief Justice D.Y. Chandrachud.
CJI Chandrachud: No Submissions Can Be Filed After July 27th 2023
Chief Justice D.Y. Chandrachud directed the parties to file their written submissions and any additional documents and applications to the appointed nodal officers by July 27th, 2023.
Citing the recent proceedings in the plea for marriage equality, he cautioned against filing documents and applications on the last day of hearings. In line with the previous Constitution Bench hearings led by the Chief Justice, it appears that the Court is dedicated to hearing the case in a time and resource efficient manner.
Union’s Recent Affidavit Shall Not Have Any Bearing on the Hearings
On July 10th, 2023, the Union filed an affidavit detailing the current status of Jammu and Kashmir after the abrogation of Art. 370. The affidavit claimed that the State was experiencing an ‘unprecedented era of peace, progress and prosperity’ since then. Justice Sanjay Kishan Kaul (who appeared online) asked if any further affidavits were necessary to be filed in the case. He said that the matter had to be decided on constitutional questions. Therefore, further affidavits would lead to a chain of rejoinders and more applications.
Solicitor General Tushar Mehta countered that the Union’s recent affidavit was intended to present the current status of the State to the Court. It did not warrant any rejoinders. He further clarified that this affidavit would not have any bearing on the constitutional questions of the case. The Court recorded this statement.