Supreme Court verdict on Article 370: What is the case all about?

“Tomorrow the judges will give their verdict, we hope for justice,” said former Jammu and Kashmir chief minister Omar Abdullah on Sunday, ahead of the Supreme Court’s crucial decision on the pleas challenging the constitutional validity of the Centre’s decision to abrogate provisions of Article 370 of the Constitution, which bestowed a special status on the erstwhile state of Jammu and Kashmir.

Four years ago, on 5 August 2019, the Narendra Modi-led government shocked many when it made the announcement of abrogating a part of Article 370 and bifurcating the erstwhile state into two Union Territories – Jammu and Kashmir and Ladakh.

Since then, a host of petitions were filed in the top court, arguing the constitutional validity of the move. On 5 September, a five-judge Constitution bench – led by Chief Justice DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant – reserved their judgment after a marathon hearing that went on for 16 days.

As we await the crucial decision, which will have far-reaching effects, we take a closer look at what was the case.

What is the case all about?

Four years ago, the Narendra Modi-led Centre decided to revoke Article 370 of the Indian Constitution. For those unaware, Article 370 was a “temporary” provision in the Constitution, granting the state of Jammu and Kashmir special status, which saw it having its own constitution, a separate flag and limited interference from the Centre.

Essentially, Article 370 forced the Centre to take approval from the state government in Jammu and Kashmir to apply laws, except for those related to defence, foreign affairs, finance and communication. Furthermore, Article 35A under Article 370 forbade outsiders from permanently settling, buying land, holding local government jobs or winning education scholarships in the region.

However, the decision to scrap Article 370 was challenged in the Supreme Court – a total of 23 different petitions were filed.

Some of the arguments centred on the issue of the Constituent Assembly. The petitioners argued that Article 370 was meant to be temporary, until the Constituent Assembly took a decision one way or another. However, the term of the Constituent Assembly had expired in 1957, making the provision permanent. They argued that it could not be touched by any constitutional process whatsoever.

For instance, Kapil Sibal, who was arguing for the petitioners, had contended that clause 3 of Article 370 insisted that the Constituent Assembly was essential to removing Article 370. He had then argued that in the wake of the dissolution of the Constituent Assembly, whose recommendation was required to abrogate Article 370, the provision could not be revoked.

He further argued that Parliament couldn’t have declared itself to be the legislature of Jammu and Kashmir in order to facilitate the abrogation of Article 370, as Article 354 of the Constitution does not authorise such an exercise of power.

There was also criticism that scrapping the measure would severely impact the region’s autonomy and demographic composition.

The Supreme Court while hearing the case also questioned who could recommend the revocation of Article 370 when no Constituent Assembly, which is a must in taking such a step, exists there. The judges also questioned how a provision, which was mentioned as ‘temporary’ in the Constitution, became permanent after the tenure of the Jammu and Kashmir Constituent Assembly came to an end in 1957.

How did the Centre defend scrapping Article 370?

The central government had defended its decision to abrogate Article 370, saying there was no “constitutional fraud” in repealing the provision that accorded special status to the erstwhile state of Jammu and Kashmir.

In Parliament, Home Minister Amit Shah also said that Article 370 was “harmful for the unity of the nation”. He added that Article 370 had confined the Kashmiri culture to a geographical corner of the country and with its removal, the culture of the state would spread to other parts of the nation.

In its affidavit to the Supreme Court, the Centre stated that since 2019 when Article 370 was abrogated, the region had witnessed “unprecedented era of peace, progress and prosperity”. Furthermore, life has returned to normalcy after three decades of turmoil, it mentioned in the affidavit.

Also read: 4 years of Article 370 abrogation: Has security situation improved in J&K?

The Centre also told the five-judge bench that the state of J&K was not the only who acceded to the country and many other princely states that too had joined India post-independence in 1947 had been subsumed in the sovereignty of India.

What is the situation in J&K today?

As all eyes turn towards the Supreme Court for its decision, the security in the region has been heightened with Jammu and Kashmir Additional Director General of Police (Law and Order) Vijay Kumar directing authorities to keep an eye on the emerging situation in Kashmir Valley.

The senior cop also called for taking “preventive and punitive” actions against anyone who indulges in “mischief, misinformation and misuse of social media”.

#WATCH | J&K: Security heightened in Srinagar ahead of the Supreme Court’s verdict on the batch of petitions challenging the abrogation of Article 370 in Jammu and Kashmir. pic.twitter.com/yfMNBwAK8v

— ANI (@ANI) December 11, 2023

Political leaders in the region are also on tenterhooks, awaiting the Supreme Court’s decision. Earlier in the morning, National Conference leader, Omar Abdullah, said in Kulgam; “No one can say with surety that they know what will happen. I have no machinery that would tell me what the five judges might be thinking or what they’ve written in the judgment. I can only hope and pray that the decision is in our favour.”

People’s Democratic Party (PDP) president Mehbooba Mufti said it is the Supreme Court’s responsibility to ensure that it does not push the Bharatiya Janata Party's (BJP) agenda, but keeps the integrity of the country and its Constitution intact.

Democratic Progressive Azad Party (DPAP) president Ghulam Nabi Azad was also quoted as saying, “Tomorrow, when the verdict will come, we will get to know if it is in the interest of the Kashmiri people or against their interest. We have been waiting for more than four years...Supreme Court has heard the matter...we’re waiting for justice. We have full faith in the Supreme Court...”

With inputs from agencies