Senior advocate Dinesh Dwivedi on Tuesday argued before a Constitution Bench led by Justice N.V. Ramana that Article 370 of the Constitution became otiose after the Jammu and Kashmir Constituent Assembly dissolved in 1957.
Thus the executive orders of the Centre over the years, including the August 5, 2019 one abrogating the special status of Jammu and Kashmir, are invalid.
Mr. Dwivedi explained that the “temporary” provision of Article 370 was the “tunnel” connecting the Indian Constitution with Jammu and Kashmir.
Article 370 required the Centre to take the prior concurrence of the J&K Constituent Assembly, which, however, dissolved in 1957 after framing J&K Constitution. Article 370 has since remained frozen in time and cannot form the basis of the August 5 notification which blunted the special status and privileges enjoyed by J&K. Parliament, shortly thereafter, reorganised the full-fledged State of J&K into the Union Territories of Jammu and Kashmir and Ladakh, bringing it directly under the administrative control of the Centre.
‘Live and let live’
Mr. Dwivedi argued that the very reason for grant of special status to J&K was the idea of “live and let live.”
The separate Constitution framed by the J&K Constituent Assembly was not a “creature of the Indian Constitution.” “It is not a derivative of the Indian Constitution. J&K Constitution draws its power from the sovereign,” Mr. Dwivedi argued.
Wide canvas
“With J&K, the federal concept was kept flexible and this was allowed in the Indian Constitution, which provided a wide canvas allowing us to operate on it in whichever manner possible,” Mr. Dwivedi submitted.
The J&K State Constituent Assembly had ceased to exist in January 1957 with the coming of the J&K Constitution. Before it was disbanded in 1957, the Constituent Assembly did not take a decision in favour of abrogation of Article 370 — the constitutional provision which is the fountainhead for the special status and privileges granted to J&K in accordance with the Instrument of Accession.
The proviso to Article 370 (3) required that a recommendation for any change in the special status and privileges accorded to the State of J&K should originally come from the Constituent Assembly. The President could not have issued the August 5 notification, which made irreversible changes in the character of the State.
