“While Kashmir has gone through some tough times in history, with the abrogation of Article 370 it feels like Kashmir has been exiled from itself. Recent events, like the communication blackout, have confined Kashmiris to their homes."
These were the words of a Kashmiri PhD scholar at the University of Pennsylvania, as he recited a poem for The Quint on the plight of the people stuck in Kashmir after the Union government abrogated Article 370 on 5 August 2019.
"I dedicate this poem to Kashmiris, who have been rendered prisoners in their own houses, and to Kashmir, which has been exiled from itself," he added.
Nearly four years after the government revoked the special status of Jammu and Kashmir (J&K) which led to the bifurcation of the State in 2019, India’s Supreme Court started hearing the petitions challenging the move on 2 August.
"This is a historic moment in many ways. First, your lordships will analyse why history was crossed out. Whether procedure established by parliament was consistent with what democracy stands for. Whether the will of people of J&K can be silenced?,” Senior Advocate Kapil Sibail had said, while opening the arguments in the case.
After nine days of hearings, the petitioners concluded their arguments in the batch of pleas challenging the abrogation and the government is currently arguing its side.
The Constitution bench of the Supreme Court, led by Chief Justice of India DY Chandrachud and including Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, presided over these hearings.
But what exactly have the petitioners argued? The Quint breaks it down in 10 points.
1) Did J&K Retain Constitutional Autonomy?
All the petitioners’ counsels emphasised the distinctive nature of Jammu and Kashmir's relationship with India, a uniqueness enshrined within the Indian constitutional framework.
They asserted that the residual authority of the Maharaja became absorbed by Article 370, endowing Jammu and Kashmir with a unique status and enabling the preservation of its constitutional autonomy.
2) What Was The Purpose of Article 370?
According to the lawyers representing the petitioners, Article 370 acted as a vital "bridge" between the state of Jammu and Kashmir and India; its removal would equate to severing that connection.
3) Was Article 370 a Temporary Provision?
The contention that Article 370 had acquired a permanent status, ceasing to be a 'temporary' provision after the dissolution of the Jammu and Kashmir Constituent Assembly in 1957, was raised by multiple counsels during the proceedings.
4) What About Permanent Residents?
Senior Advocate Zaffar Shah asserted that the historical context of the region solidified the notion of safeguarding individuals who were permanent residents of the State of Jammu and Kashmir.
5) What About The Lack Of Representation of J&K?
Expanding on the consequences of Jammu and Kashmir's transition into a Union Territory, the argument was made that the state no longer enjoyed proportional representation in the Lok Sabha.
The essence of representative democracy suffered when Parliament alone became the voice for a region's desires, overlooking the constitutional requirement to consider the state's perspectives, the lawyers argued.
6) How Can The Constitution Be Interpreted?
Senior Advocate Menaka Guruswamy contended that the original intentions of the Constitution's framers must be factored into interpretation. She proposed that the Court's legal principles gained legitimacy from the constitutional intentions of the drafters.
7) Did The Union Abuse Its Power?
It was highlighted that the BJP had forged a coalition government with a local party in Jammu and Kashmir, only to abruptly withdraw its support, leading to the government's collapse. Subsequently, governor's rule and later President's Rule were imposed. Posing the question, Dave asked, "Could there be a clearer instance of power misuse?"
8) Was BJP’s 2019 Election Manifesto Illegal?
Senior Advocate Dushyant Dave also guided the bench through the 2019 BJP Election manifesto, in which the party pledged to revoke Article 370 if voted into power.
"Today, because you have majority in parliament, you have done this. The only reason you did it is because you told people of India that vote for me and I'll abrogate 370. That shows that the power has been exercised for colourable considerations,” he said.
9) What About Integration?
Integration it was argued was not solely a matter of centralised control, but a multifaceted process that extended beyond administrative governance.
10) What Was The Point of The Quick Dissolution of the House by Governor?
Raising apprehensions, Senior Advocate Nitya Ramakrishnan voiced her worries that any endeavors to alter Article 370, if not carried out in accordance with the appropriate constitutional procedures, might weaken the democratic values embedded within the article. She censured the gradual erosion of the democratic aspirations of Jammu and Kashmir's populace, attributing this erosion to processes she labeled as being driven by ulterior motives. Within this framework, Ramakrishnan underscored the events encompassing the imposition of Governor's rule and the subsequent dissolution of the state assembly.
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