Supreme Court Unanimously Upholds Abrogation of Article 370, Declares It Temporary

In a unanimous decision, a five-judge Constitution bench of the Supreme Court endorsed the Union government’s 2019 decision to abrogate Article 370 of the Constitution, conferring special status on Jammu and Kashmir. The bench, comprising Chief Justice DY Chandrachud, along with Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, emphasized that Article 370 was a “temporary provision.”

The court asserted that Article 370 was enacted due to wartime conditions in the state and was intended for a transitional purpose. The verdict clarified that the provision served two objectives: a transitional purpose until the Constituent Assembly of the State could determine the legislative competence of the Union and ratify the Constitution, and a temporary purpose due to war conditions.

Highlighting the temporary nature of Article 370, the court referred to its placement in Part XXI of the Constitution, which deals with temporary and transitional provisions. The verdict also cited the marginal note of the provision, stating “temporary provisions with respect to the State of Jammu and Kashmir.”

Petitioners challenging the abrogation contended that Article 370 had become permanent post the dissolution of the Constituent Assembly of Jammu and Kashmir. However, the court rejected this argument, asserting that a textual reading of Article 370 indicated its temporary nature.

The court underscored that the State of Jammu and Kashmir did not retain an element of sovereignty upon joining the Union of India. It emphasized that Maharaja Hari Singh’s proclamation of retaining sovereignty was superseded by his successor Karan Singh’s proclamation, asserting the supremacy of the Indian Constitution.

Regarding the dissolution of the Constituent Assembly, the court clarified that it did not mean Article 370 would continue permanently. The President’s power to issue an order to abrogate Article 370 was upheld, emphasizing that such an exercise of power did not require concurrence from the State government.

The court also upheld Constitutional Order (CO) 272 issued by the President on August 5, making provisions of the Constitution of India applicable to Jammu and Kashmir. It endorsed the decision to carve out the Union Territory of Ladakh under Article 3(a) read with Explanation I.

Addressing the restoration of Statehood, the court directed the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir by September 30, 2024. It emphasized that the restoration of Statehood should take place at the earliest. The Constitution bench heard a batch of petitions challenging the abrogation of Article 370 and the bifurcation of the state into two Union Territories. The decision was a culmination of several petitions filed by individuals, lawyers, activists, and political entities challenging the Jammu and Kashmir Reorganisation Act, 2019.

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