Senior Advocate Fali S. Nariman has stressed on the importance of dissenting judgements, saying that they not only worked as safety valve, but also sent a message of assurance to the ever curious and anxious general public that the highest court of the country was in robust health and doing its allotted task well.

Speaking as Guest of Honour at the 28th Justice Sunanda Bhandare Memorial lecture, which was delivered by Supreme Court Judge Justice BV Nagarathna on the topic “Role of Judiciary in Empowerment of Indian Women” on Friday, the Senior Advocate expressed his views on the Supreme Court verdict over the abrogation of Article 370, which stripped Jammu and Kashmir of its special status.

Nariman said after reading the very exhaustive verdict handed down by a Constitution Bench of five judges, his only regret has been that there was no dissent.

While acknowledging that a dissent would have made no difference to the outcome of the case challenging the Union government’s decision, Nariman said that a dissenting opinion would have helped the public better understand the case and the issues involved.

As per the Senior Advocate, the dissenting views would have helped the not-so-well informed general public to better understand and appreciate the contours of this unique very long and somewhat complicated case about India’s northern-most state.

On December 11, 2023, a five-judge Constitution Bench of the Apex Court upheld the President’s order (CO 273) of 2019 abrogating the special status of Jammu and Kashmir under Article 370 of the Constitution.

The five-judge Constitution Bench of Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant held that the concurrence of the state government was not required to apply the Constitution to the state, noting that the erstwhile state of Jammu and Kashmir had no internal sovereignty.

Responding to the assurance given by Solicitor General Tushar Mehta that the Central government would restore the statehood of J&K as soon as possible, the Apex Court refused to validate the reorganisation of J&K into a Union Territory.

The Bench, however, upheld the carving out of Ladakh as UT.

It further directed the Election Commission of India to hold elections of the Jammu and Kashmir Legislative Assembly by September 30, 2024.

The Bench gave three judgements in the matter – one by CJI Chandrachud for himself and for Justices Gavai and Surya Kant.

The second was a concurring opinion authored by Justice SK Kaul, while Justice Sanjiv Khanna delivered the third nts.verdict, concurring with both the judgements.

The Supreme Court on Monday upheld the abrogation of Article 370 in Jammu and Kashmir and said the Article was a temporary provision. The Court directed the Election Commission to conduct elections in Jammu and Kashmir by September 30, 2024 and the Centre to restore its statehood.

The Constitution Bench led by CJI Chandrachud passed the verdict on a slew of petitions filed in the Apex Court. The Bench, which also comprised Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice B.R. Gavai and Justice Surya Kant, ruled Jammu and Kashmir did not enjoy sovereignty under Article 370 but was a feature of asymmetric federalism. The Court also upheld the carving of the Union Territory of Ladakh from the erstwhile state.

On September 5, the Court had reserved its judgment on the petitions challenging the Union government’s 2019 decision to repeal the special status of Jammu and Kashmir by abrogating Article 370 of the Constitution.

The petitioners further challenged the J&K Reorganisation Act, which bifurcated the erstwhile state into two Union Territories – Jammu & Kashmir and Ladakh.

The Constitution Bench heard the matter for 16 days, starting on August 2 and concluding on September 5, during which time, it witnessed extensive arguments and discussions by both the parties.

The landmark case had remained dormant for over three years with its last listing dating back to March 2020.

The counsels for the petitioners argued for the first nine days and stressed on the unique nature of Jammu and Kashmir’s relationship with India, which got embodied in the Indian constitutional setup, highlighting that the Maharaja of Kashmir did not give up the internal sovereignty to the Dominion of India.

They contended that while the power to make laws relating to foreign affairs, communication, and defence laid with the Union as per the Instrument of Accession (IoA), the internal sovereignty of J&K, which provided it with powers to legislate on all other matters, remained with the Maharaja.

The petitioners argued that Article 370 had assumed permanence and was no longer a “temporary” provision post the dissolution of the J&K Constituent Assembly in 1957. They further said that the Indian Parliament, under the current constitutional framework, could not convert itself into a Constituent Assembly.

They termed imposing of the President’s Rule in a State as “misuse” of Article 356, pointing out that the purpose of Article 356 was to restore state machinery and not destroy it. However, the President’s Rule in J&K was imposed to destroy the state legislature, they alleged.

As per the petitioners, the President’s Rule under Article 356 was in its nature ‘temporary’ and hence, permanent actions could not be taken under it. They further argued that the amendment of Article 370 through Article 367 was invalid.

They pointed out that while Article 3 of the Constitution granted the Central government power to alter the boundaries of states and even create smaller states through bifurcation, it had never before been used to convert an entire state into a Union Territory (UT).

The petitioners further mentioned the negative impact on the constitutional structure of turning J&K into a UT.

The Counsels appearing for the Union Government and other respondents argued that the abrogation of Article 370 resolved the ‘psychological duality’ of the people of J&K. They claimed that before the abrogation, discrimination existed against the people of J&K as the Indian Constitution was not fully applied to the state prior to 2019.

As per the respondents, the Constitution makers foresaw Article 370 as a ‘temporary’ provision and wanted it ‘to die’.

They challenged the assertion of an exclusive special status for J&K on the grounds that during the late 1930s, a multitude of princely states were in the process of drafting their own constitutions. The execution of a merger agreement was not necessary to become a part of the Indian nation. Further, internal sovereignty could not be confused with sovereignty, they added.

Appearing for the Central government, Solicitor General Tushar Mehta contended that J&K was only converted to a UT owing to it being a sensitive border state for a temporary time period and that its statehood would be restored.

It was also argued that if Article 367 was not modified, it would have the effect on Article 370 becoming a permanent feature of the Indian Constitution, as sans the Constituent Assembly, Article 370 could never be modified.

They asserted that the J&K Constitution was subservient and subordinate to the Indian Constitution and the J&K Constitution never had original constituent powers.

Even if the Constituent Assembly had been in existence, it would have a limited role to play in abrogation of Article 370 as its decision would be only ‘recommendatory’ in nature and the President could have taken any decision even if the Constituent Assembly did not agree to the same, argued the respondents.

The Supreme Court on Wednesday began hearing the 20-odd petitions challenging the Central government’s decision to strip off the special status of the erstwhile state of Jammu and Kashmir by way of abrogation of Article 370.

The five-judge Constitution Bench of Chief Justice of India (CJI) D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice B.R. Gavai and Justice Surya Kant will hear the petitions on a day-to-day basis except on Mondays and Fridays. 

The petitions challenged the Presidential Order dated August 5, 2019, which abrogated Article 370, stripping the erstwhile state of Jammu and Kashmir from its special status. 

Earlier on December 14, the Apex Court had agreed to list the petitions challenging the Central government’s decision of 2019, which struck off the special status of Jammu and Kashmir by abrogation of Article 370 of the Constitution.

The matter was mentioned before a Bench of Chief Justice of India D.Y. Chandrachud and Justice P.S. Narasimha, which said that it will examine and give a date.

Earlier in September, the then Chief Justice of India U.U. Lalit had said that the petitions would be ‘certainly’ listed after the Dussehra breaks. However, the same could not be listed then.

The petitions were referred to a Constitution Bench in 2019, which comprised Justice N.V. Ramana, Justice Sanjay Kishan Kaul, Justice R. Subhash Reddy, Justice B.R. Gavai and Justice Surya Kant.

One of the members of this Bench, Justice Reddy, retired in January this year. The hearings on cases related to Article 370 commenced before the five-Judge Bench in December 2019, almost four months after the notification was issued by the Centre on August 5, 2019.

The case raised the question as to whether a reference to 7-judge bench was necessary in light of alleged divergence in the opinions expressed by two coordinate Benches of the Supreme Court in the cases of Prem Nath Kaul and Sampath Prakash.

The Constitution Bench decided on March 2, 2020 that there was no need to refer the matter challenging the Presidential Orders issued under Article 370 to a larger Bench. The petitions have not been listed since.

On August 5, 2019, the Union Government had issued an order under Article 370(1) superseding a similar order of 1954 and adding clause (4) to Article 367 (the interpretation of article of the constitution).

On the same day, the Centre brought a resolution before Parliament for the repeal of Article 370 and it was passed by both Houses under the proviso to Article 370(3) of the Constitution.

The Union of India, on August 5, 2019, further introduced and passed in the Rajya Sabha, The Jammu & Kashmir (Reorganisation) Bill 2029, bifurcating the State and creating two Union territories. It was passed by the Lok Sabha the next day. This was done under Article 3 of the Constitution.

On August 6, 2019, the President made a notification under Article 370(3) of the Constitution declaring that all the clauses of Article 370 shall as on August 6, 2019, cease to be operative except a sole new clause that was introduced by the same notification.

The Supreme Court on July 11 would be hearing a batch of petitions that  challenge the abrogation of Article 370 of the Constitution of India.

The Constitution bench headed by Chief Justice of India DY Chandrachud will hear the petitions challenging the abrogation of Article 370, for issuing procedural directions.

The Constitution Bench will have Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant.

The matter has been discussed earlier on December 14, 2022 in the Apex court where it was agreed to list the petitions challenging the Central government’s decision of 2019.

The decision questioned is that in the  the special status of Jammu and Kashmir was struck off by abrogation of Article 370 of the Constitution.

This matter was put before a Bench comprising of Chief Justice of India D.Y. Chandrachud and Justice P.S. Narasimha, who gave dates and assured of going through it.

In September, 2022, the then Chief Justice of India U.U. Lalit had said that the petitions would be ‘certainly’ listed after the Dussehra breaks. However, the same could not be listed then.

The petitions were referred to a Constitution Bench in 2019, which comprised Justice N.V. Ramana, Justice Sanjay Kishan Kaul, Justice R. Subhash Reddy, Justice B.R. Gavai and Justice Surya Kant.

One of the members of this Bench, Justice Reddy, retired in January this year. The hearings on cases related to Article 370 commenced before the five-Judge Bench in December 2019, almost four months after the notification was issued by the Centre on August 5, 2019.

The case raised the question as to whether a reference to 7-judge bench was necessary in light of alleged divergence in the opinions expressed by two coordinate Benches of the Supreme Court in the cases of Prem Nath Kaul and Sampath Prakash.

The Constitution Bench decided on March 2, 2020 that there was no need to refer the matter challenging the Presidential Orders issued under Article 370 to a larger Bench. The petitions have not been listed since.

On August 5, 2019, the Union Government had issued an order under Article 370(1) superseding a similar order of 1954 and adding clause (4) to Article 367 (the interpretation of article of the constitution).

On the same day, the Centre brought a resolution before Parliament for the repeal of Article 370 and it was passed by both Houses under the proviso to Article 370(3) of the Constitution.

The Union of India, on August 5, 2019, further introduced and passed in the Rajya Sabha, The Jammu & Kashmir (Reorganisation) Bill 2029, bifurcating the State and creating two Union territories. It was passed by the Lok Sabha the next day. This was done under Article 3 of the Constitution.

On August 6, 2019, the President made a notification under Article 370(3) of the Constitution declaring that all the clauses of Article 370 shall as on August 6, 2019, cease to be operative except a sole new clause that was introduced by the same notification.

The Supreme Court on Wednesday agreed to list the petitions challenging the Central government’s decision of 2019, which struck off the special status of Jammu and Kashmir by abrogation of Article 370 of the Constitution.

The matter was mentioned before a Bench of Chief Justice of India D.Y. Chandrachud and Justice P.S. Narasimha, which said that it will examine and give a date.

Earlier in September, the then Chief Justice of India U.U. Lalit had said that the petitions would be ‘certainly’ listed after the Dussehra breaks. However, the same could not be listed then.

The petitions were referred to a Constitution Bench in 2019, which comprised Justice N.V. Ramana, Justice Sanjay Kishan Kaul, Justice R. Subhash Reddy, Justice B.R. Gavai and Justice Surya Kant.

One of the members of this Bench, Justice Reddy, retired in January this year. The hearings on cases related to Article 370 commenced before the five-Judge Bench in December 2019, almost four months after the notification was issued by the Centre on August 5, 2019.

The case raised the question as to whether a reference to 7-judge bench was necessary in light of alleged divergence in the opinions expressed by two coordinate Benches of the Supreme Court in the cases of Prem Nath Kaul and Sampath Prakash.

The Constitution Bench decided on March 2, 2020 that there was no need to refer the matter challenging the Presidential Orders issued under Article 370 to a larger Bench. The petitions have not been listed since.

On August 5, 2019, the Union Government had issued an order under Article 370(1) superseding a similar order of 1954 and adding clause (4) to Article 367 (the interpretation of article of the constitution).

On the same day, the Centre brought a resolution before Parliament for the repeal of Article 370 and it was passed by both Houses under the proviso to Article 370(3) of the Constitution.

The Union of India, on August 5, 2019, further introduced and passed in the Rajya Sabha, The Jammu & Kashmir (Reorganisation) Bill 2029, bifurcating the State and creating two Union territories. It was passed by the Lok Sabha the next day. This was done under Article 3 of the Constitution.

On August 6, 2019, the President made a notification under Article 370(3) of the Constitution declaring that all the clauses of Article 370 shall as on August 6, 2019, cease to be operative except a sole new clause that was introduced by the same notification.

A petition has been filed in the Supreme Court seeking the early hearing of application challenging the constitutional validity of the Presidential order, which amended and rendered the provisions of Article 370 inoperative, stripping the special status of Jammu and Kashmir.

The early hearing petition, filed by CPI (M) leader M.Y. Tarigami, sought to assail the said presidential order by praying the court to declare the said amendment unconstitutional as it has an infringing effect on the fundamental rights, more specifically, Articles 21 and 14 of the Indian Constitution.

Tarigami said despite the fact that the challenge to the constitutional validity of orders by the Centre on August 5, 2019 as well as the J&K (Reorganisation) Act, is pending before the Supreme Court, the Central Government had taken some “irreversible actions”. He said the Centre had constituted a Delimitation Commission to mark boundaries in the territory for all the constituencies before an Assembly election can be held.

“Amendment to the J&K Development Act allows persons who are not permanent residents to buy land in UT,” the petition said, listing out the Centre’s decisions.

The Spokesperson of the People’s Alliance for Gupkar Declaration said several petitions have been waiting in the Supreme Court for nearly two years.

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The petitions were referred to a five-judge Bench in August 2019 by the then Chief Justice of India, Ranjan Gogoi. The case was last listed before a Constitution Bench led by then Chief Justice S.A. Bobde on March 2, 2020.

The other four judges on the Constitution Bench are Justices Sanjay Kishan Kaul, R. Subhash Reddy, B.R. Gavai and Surya Kant.