Court Cannot Issue Such Declaration: Apex Court Dismisses PIL Seeking Declaration That Abrogation Of Articles 370 Is Constitutional

The Supreme Court today dismissed a Public Interest Litigation seeking a declaration that the amendments made in Article 370 (1) and the deletion of Article 35A of the Constitution of India are constitutionally valid and lawful acts of the Union of India.

At the outset, the Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra remarked, "What kind of the Petition is this? You are now seeking a declaration by this Court that the abrogation of Article 370 is valid. Why should we issue that declaration in your Petition? Who has set your client up?"

The Bench said in its order, "The Petitioner, invoking the jurisdiction purportedly in a public interest litigation seeks a mandamus of this Court or any other appropriate writ by issuing a declaration to the effect that the abrogation of Article 370 (1) of the Constitution and the deletion Article 35A are constitutionally valid. A declaration cannot be issued by this Court with regard to constitutional validity of action of the Union Government. In any event, the issue of constitutional validity is pending before the Constitution Bench. The present petition is misconceived and is accordingly dismissed."

In the Public Interest Litigation (PIL) filed by Advocate Baby Devi Bonia, it was contended that since the Central Government's decision to abrogate the special status of Jammu and Kashmir, for the first time after independence, the residents of the region are now enjoying the same rights as the residents of other parts of the country. This change has led to the integration of the region's people into the national mainstream, thereby effectively thwarting the malicious agenda of secessionist and anti-national forces.

Bonia further submited that for the past 3 years, schools, colleges, universities, hospitals and other public institutions have been functioning without any strikes or disturbances. "That earlier practice of daily hartals, strikes, stone pelting and bandhs are a thing of the past now", says the PIL.

It has also been highlighted that as notified in February 2021, the Centre has allocated Rs. 28400 Crore in the Central Sector Scheme which will lead to unprecedented industrial development in the region. Further on the merits, the Petitioner submits that the powers to concur on amendments to Article 370 remained with the President and were never transferred to the state legislature. 

"Presidential power of recognition is sovereign, unconditional, and Consequently, the abrogation of Articles 370 and 35A was constitutional and within the powers of the President", submits the PIL. Further, it submits that "Articles 370 and 35A were only intended to be temporary provisions, and were removed consistent with the Indian Constitution. Clause 1 of Article 370 itself allows for these provisions to be removed through Presidential order, as was recently done. The bill in the Indian Parliament repealing Articles 370 and 35A also passed with broad, multi-party support", the petition says.

It was added that a majority of Kashmiris support the abrogation of Article 370 and affirms that restrictions in Kashmir are aimed at preventing Pakistan from creating more mischief through proxies and terrorists.

However, a five-judge Constitution bench headed by Chief Justice DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant has commenced day-to-day hearings on August 2 on the batch of petitions challenging the abrogation of Article 370 of the Constitution that bestowed special status on the erstwhile state of Jammu and Kashmir.

Cause Title: Baby Devi Bonia Vs. Union Of India and Ors. [Diary No.- 30501 - 2023]