28 August 2023, Mumbai: Center’s View on Article 370 Abrogation
In a significant development, the Supreme Court indicated agreement with the Centre’s stance on the challenge to the abrogation of Article 370, which granted special status to the erstwhile state of Jammu and Kashmir. The court observed that the Constitution of Jammu and Kashmir is considered “subordinate” to the Indian Constitution, placing the latter at a higher pedestal. Chief Justice DY Chandrachud led the five-judge bench that assessed this aspect of the challenge. However, the court seemed less inclined to accept the argument that the Constituent Assembly of the former state, disbanded in 1957, was in reality a legislative assembly.
Controversy Surrounding Special Provisions
Without explicitly naming the mainstream political parties of the former state, the Centre pointed out that citizens had been misled into believing that the special provisions for Jammu and Kashmir were a “privilege” rather than discrimination. During the 11th day of hearing the numerous pleas against the abrogation, the Centre’s solicitor general highlighted that even now, two political parties were defending Article 370 and 35A in court. These articles provided the special status to Jammu and Kashmir under the Indian Constitution.
Constitutional Compatibility and Dissolution of Assembly
The Centre’s representative, Tushar Mehta, argued that the Constitution of Jammu and Kashmir had to be repealed as it could not coexist with the Indian constitution. He noted that on November 21, 2018, the legislative assembly of the state was dissolved, and despite no subsequent challenge, the dissolution was deemed “arbitrary” by the petitioners. Mehta also emphasized that the imposition of Governor’s rule in the state under Section 92 of the J-K Constitution in June 2018 saw only one petition challenging it after 14 months. He underlined that even with numerous instances of Governor’s and President’s rule, political parties seldom challenged these actions.
Continuation of the Hearing
The hearing on the matter remained inconclusive and was scheduled to continue on the following day. This ongoing case revolves around the challenge to the abrogation of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which bifurcated the former state into two union territories – Jammu and Kashmir, and Ladakh. Several petitions contesting these changes were referred to a Constitution bench in 2019, and the case continues to be a focal point of legal and constitutional discussions in India.