The Supreme Court will pronounce its verdict on a batch of petitions challenging the abrogation of Article 370 of the Constitution, which bestowed special status on the erstwhile state of Jammu and Kashmir, on Monday.
The crucial verdict will be delivered by a five-judge constitution bench headed by Chief Justice D Y Chandrachud. The other members of the bench are Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant.
The apex court had on September 5 reserved its verdict in the matter after a marathon 16-day hearing which saw 40 lawyers battle over the true meaning of Jammu and Kashmir’s 'special status.'
It also witnessed the lawyers representing both sides arguing on topics including the constitutional validity of the Centre's decision to abrogate Article 370, the validity of the Jammu and Kashmir Reorganisation Act which split the erstwhile state into two Union Territories, the imposing of Governor's rule in Jammu and Kashmir and imposition of President's rule in the erstwhile state.
Here is what happened during the hearing:
Is special status a permanent fixture?
The argument was opened by senior Advocate Kapil Sibal for the petitioners who said the hearing was a historic moment as the Court will be analysing history, looking into whether the will of the people can be silenced, whether the procedure of Parliament was illegal and whether Jammu and Kashmir could be denied a representative form of government.
He also argued that the Instrument of Accession (IoA) limited the powers of the Parliament over Jammu and Kashmir. Sibal argued that the Indian Constitution would not be applicable to Jammu and Kashmir beyond what was agreed upon. The IoA was also clear that Article 370 could not be amended by the Parliament but only by the Jammu and Kashmir Constituent Assembly.
No abrogation without 'constituent assembly'
The petitioners also argued that the Proviso to Article 370(3) states that the recommendation of the Constituent Assembly of the State is necessary before the President issues such a notification. The petitioners also argued that the Centre encroached upon the former state's autonomy and violated the federal structure of the Constitution.
Reorganisation
As per Article 3 dealing with the "formation of new States and alteration of areas, boundaries or names of existing States”, it is mandatory for the President to refer the Bill for the reorganisation of a state to the legislature. But the consent of the J&K Legislative Assembly was not taken before introducing the reorganisation Bill.
Centre's arguments
The centre argued that while the erstwhile state of Jammu and Kashmir had fully surrendered its sovereignty to the Union of India upon accession, there should be no confusion of internal sovereignty with autonomy.
Solicitor General Tushar Mehta argued that abrogation of Article 370 was crucial to giving the people of Jammu and Kashmir rights which people of the rest of the country enjoyed. He argued that Article 370 was intended to be a "temporary" provision and that the words "constituent assembly" and "legislative assembly" were used interchangeably. Unlike the Constituent Assembly formed for drafting the Indian constitution, the Jammu and Kashmir Constituent Assembly was not a plenary Constituent Assembly and so words "Constituent Assembly" in Article 370(3) can be read only as "Legislative Assembly".
He also lists out various "shocking" discrepancies in the rights awarded to the rest of India and to the state, which included dilution of many critical provisions of the Constitution, including fundamental rights, before making it applicable to the erstwhile state.
The Centre also drew attention to Article 35A which was inserted to the Constitution as a result of the 1954 Order which restricted the right to employment and acquisition of property within J&K to "permanent residents" of the State. He argued that this was discriminatory as it only gave benefits to "permanent residents" of the State and nobody else.
The government argued that after the abrogation of Article 370, investments and the tourism industry boomed in the state, and employment and income increased in the region.
