Senior advocate Kapil Sibal on August 3 argued before the Supreme Court that the Legislature did not have the power to recommend the abrogation of Article 370 as per the provisions of the Jammu & Kashmir (J&K) Constitution.
Mr. Sibal also referred to the Constitution (Application to Jammu and Kashmir) Orders of 1950 and 1954 to contend that a ‘solemn promise’ was made that no legislation that intends to revise the boundaries of J&K can be passed without the concurrence of the J&K government.
He pointed out that although the Presidential Order of 2019 [C.O. 272] had invoked Article 368 of the Constitution to transfer power to recommend abrogation from the ‘Legislative Assembly’ to the ‘Constituent Assembly’ – this was not permitted as per the court’s prior ruling in Kesavananda Bharati v. State of Kerala (1973).
Castigating the manner in which the process of abrogation was carried out, the senior counsel stated that it was a ‘political act’ and that the Governor and the Union government were working in tandem to invalidate Article 370.
During the hearing on August 2, Chief Justice of India (CJI) D.Y Chandrachud enquired as to whether Article 370 was a provision in the Constitution that lay beyond the amending powers of the Constitution. Echoing similar concerns, Justice B.R. Gavai asked if Article 370 can be perceived to be unamendable especially since the Constitution is a living document.
A five-judge Constitution Bench of the Supreme Court on August 2 began hearing a batch of petitions challenging the abrogation of Article 370 and bifurcation of the erstwhile State of Jammu and Kashmir into two Union Territories. Mr. Sibal, appearing on behalf of the petitioners, opened the arguments by saying that Article 370 was no longer a “temporary provision” and it had assumed permanence post the dissolution of the Constituent Assembly of Jammu and Kashmir.
The Supreme Court on August 2 raised the question whether the President’s power to declare inoperative Article 370 of the Constitution, which granted special status to Jammu and Kashmir, will not continue to hold the field after the dissolution of the erstwhile State’s Constituent Assembly on January 26, 1957.
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