Satya Prakash

New Delhi, September 5

After 16 days of marathon arguments, a five-judge Bench led by Chief Justice DY Chandrachud on Tuesday reserved its verdict on petitions challenging the nullification of Article 370 and bifurcation of Jammu and Kashmir into two union territories – Jammu and Kashmir; and Ladakh.

The Bench – which also included Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant – would decide if the changes made on August 5 and August 6, 2019 that ended the special status of the erstwhile state of Jammu and Kashmir – were constitutionally valid or not.

At the close of arguments, the Bench said if any party to the case wanted to file a brief written submission/note, they could do it in the next three days.

On the concluding day, the Bench on Tuesday heard rejoinder arguments from senior advocates Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Zaffar Shah, Dushyant Dave, Gopal Sankaranarayan and others.

The petitioners have mainly challenged the abrogation of Article 370 on the ground that it was a political decision which lacked constitutional backing as the procedure provided for in the Constitution, particularly the requirement of recommendation of J&K Constituent Assembly, for abrogation of the provision was not followed.

As the J&K Constituent Assembly ceased to exist in 1957, Article 370 became permanent, Sibal argued.

On behalf of the Centre and some intervenors, Attorney General R Venkataramani, Solicitor General Tushar Mehta, senior advocates Harish Salve, Rakesh Dwivedi, V Giri and others defended the abrogation of Article 370 terming it a historic move that demolished the barriers in constitutional and emotional integration of Jammu and Kashmir with the rest of India.

The arguments were centered around, the Instrument of Accession (IoA), Jammu and Kashmir Constituent Assembly, Article 370, Article 367, Article 368, the Centre’s August 5, 2019 decision to abrogate Article 370, Jammu and Kashmir Reorganisation Act, which split the erstwhile state into two union territories, imposition of Governor’s rule in Jammu and Kashmir on June 20, 2018, followed by imposition of President’s rule in the erstwhile state on December 19, 2018 and its extension on July 3, 2019.

During the hearing, the Bench said once the Instrument of Accession (IoA) signed by Maharaja Hari Singh in 1948 got subsumed in a post-Constitution document indicating transfer of power, the IoA can’t act as a fetter on Parliament’s powers.

On August 31, the Centre told the Supreme Court that it’s ready for elections in Jammu and Kashmir anytime and now it’s for the Election Commission to take a call.

“The Central Government is ready for elections anytime now. Till date updating of the voters’ list was going on… which is substantially over. Some part is remaining that the Election Commission is doing,” the Solicitor General had said.

However, on restoration of statehood of Jammu and Kashmir, Mehta had said it’s progressing to become a state. He, however, refused to give a definite time frame, saying “We’re dealing with an extremely extraordinary situation.”

Emphasising that the overall situation has improved, the Centre had said that compared to 2018, terror attacks were down by 45% and Infiltration was reduced by 90% while tourism was showing signs of revival.

“In 2018, organised bandhs were 52- they are nil now… The terrorist initiated instances are reduced by 45.2%. I’m comparing the 2018 situation with the 2023 situation. Infiltration reduced by 90.2%… Law and order events… stone pelting etc. reduced by 97.2%… Security persons’ casualty is reduced by 65.9%. These are factors agencies would take into consideration,” Mehta had submitted.