Abrogation of Article 370: Arguments Matrix
Challenge to the Abrogation of Article 370On 5 September 2023, the Supreme Court reserved judgement in the challenge to the abrogation of Article 370, after long-drawn hearings spanning 16 days. 40 lawyers argued on the region’s complex constitutional and political history and looked into the scope of powers vested in the president, debated on the rules of interpretation of the Constitution, the nature of principles enshrined in the basic structure doctrine, and more.
This matrix breaks down six key arguments made by both sides of the challenge.
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 5, 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 28, 2019, a 3-Judge Bench led by former CJI Rajan Gogoi referred the case to a 5-Judge Constitution Bench.
On October 1, 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 3, 2023, the Supreme Court listed the matter to a Constitution Bench led by Chief Justice D.Y. Chandrachud. The Bench assembled on July 11, 2023 and decided to hear the challenge from August 2, 2023.