In a significant development, the Supreme Court engaged in a thoughtful evaluation of the abrogation of Article 370, which granted special status to the erstwhile state of Jammu and Kashmir. A five-judge Constitution bench led by Chief Justice of India D Y Chandrachud delved into the complex matter, shedding light on the intricate constitutional aspects surrounding the abrogation.
The bench acknowledged that while it might be challenging to definitively assert that Article 370 could never be abrogated, the crux of the issue was to determine whether the process followed for the abrogation was legally sound.
During the hearing, Justice Sanjay Kishan Kaul emphasized that the sovereignty of Jammu and Kashmir was wholly ceded to the Union of India, as highlighted in Article 1 of the Constitution. This declaration, which designates India as a "Union of States" encompassing Jammu and Kashmir, reinforced the complete transfer of sovereignty.
Addressing the assertion of whether the Indian Constitution or the J&K Constitution held supremacy, the court underlined that the Indian Constitution prevails. It highlighted that the restraints placed on the power of Parliament to enact laws on specific subjects, as seen in the State List, did not compromise the sovereignty of the Union.
Furthermore, the court probed the nuanced concept of "concurrence," noting that various shades of concurrence exist within the Constitution and do not infringe upon the Union's sovereignty. The court compared the unique relationship of the Union with J&K to other instances of concurrence in the Constitution, reinforcing that these mechanisms do not weaken sovereignty.
Advocate Zafar Shah, representing the petitioners, emphasized the origins of J&K's Constitution, rooted in the Instrument of Accession and the Proclamation of 1948. Shah underscored that J&K maintained constitutional autonomy, and the term "concurrence" in Article 370 ensured that laws could not be enacted without mutual agreement.
In response to Shah's arguments, the court questioned whether Article 370 became permanent due to the absence of a mechanism to abrogate it. The court acknowledged that while it might be challenging to categorically state that Article 370 could never be abrogated, the validity of the process remained a key concern.
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