Sukhmani Kooner, Pune
On August 2, the Supreme Court of India started hearing petitions filed against the abrogation of Article 370, wherein a 5-judge bench led by Justice DY Chandrachud would decide the constitutionality of the presidential orders in 2019, which removed J&K’s special status.
Article 370 emerged as a result of the Instrument of Accession, which was signed by Maharaja Hari Singh in 1947. Its purpose was to allow J&K to transition from an independent princely state to a democratic state under the Union of India. It gave the state autonomy over subjects other than foreign affairs, defence, communications, and finance. It also allowed the state to have its own constitution and flag. With the Jammu and Kashmir Reorganisation Act, of 2019, the state was bifurcated into two union territories: Jammu and Kashmir and Ladakh.
Ongoing debates question whether the abrogation was constitutional since Article 370(3) mentions that the special status of Jammu and Kashmir cannot be repealed unless the constituent assembly of J&K recommends it. Adherence to the basic features of the constitution is necessary, as irreversible changes cannot be brought about through an ordinance.
Senior advocate Kapil Sibal argued on August 8 that the union government abrogated the article “unilaterally” but, to understand the will of the people, a referendum should be conducted. However, the CJI observed that it is not an option as India is a constitutional democracy and all opinion-seeking should be done through established institutions.