There is a widely held belief that the Supreme Court had upheld the actions of the government in ‘abrogating’ Article 370 of the Constitution that conferred a special status on Jammu & Kashmir. The government claimed that the ‘abrogation’ was validated by the Court and some scholars seem to have accepted the claim. Wrong, as I had pointed out in a column (‘Towards a Dystopian Future’, Indian Express, December 17, 2023). In fact, the Supreme Court had held to the contrary on the issue of ‘abrogation’.

On August 5, 2019, the government took three steps:

invoked Article 370(1) to add clause (4) to the Interpretation Clause of the Constitution (Article 367);

used the expanded Interpretation Clause and purported to ‘amend’ the proviso to Article 370(3);

used the ‘amended’ Article 370(3) and the proviso thereto, and purported to ‘abrogate’ Article 370 itself.

All three steps were held impermissible and unconstitutional by the Supreme Court.

Nevertheless, the Supreme Court reasoned that the exercise of power under Article 370(1) applying all the provisions of the Constitution to Jammu & Kashmir was valid and it had the same effect as ‘abrogating’ Article 370.

Let’s have clarity on the legal position: the........

© Indian Express