Senior advocate Kapil Sibal on August 8 apprised a Constitution Bench headed by Chief Justice of India D.Y. Chandrachud that a unilateral executive decision cannot change the terms of a relationship that is constitutionally embedded in Article 370. The also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, has been adjudicating upon a batch of petitions challenging the abrogation of Article 370 of the Constitution that bestowed special status on the erstwhile State of Jammu and Kashmir.
The senior counsel submitted that the abrogation was a ‘political decision’ and thus the opinion of the people of J&K should have been sought. Referring to Article 3 of the Constitution, Mr. Sibal contended that the provision cannot be invoked to split J&K into Union Territories. Reliance was also placed on a host of prior Supreme Court judgments to show that the Constituent Assembly of J&K did not desire for Article 370 to be abrogated.
During the hearing, Chief Justice D.Y. Chandrachud also said that as a constitutional democracy, India seeks its public opinions through established institutions like the Parliament and not through Brexit-type referendums.
Senior advocate Gopal Subramanian is set to advance submissions tomorrow i.e. on August 8 before the Bench.
The court on August 3 asked whether Article 370, which gave special status to Jammu and Kashmir, is being equated to the Basic Structure of the Constitution. The bench was reacting to Mr. Sibal’s submission that there was no constitutional process available to abrogate Article 370, and the provision had attained a “permanent character” after 1957 when the Jammu and Kashmir Constituent Assembly dissolved, leaving the Article unchanged.
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, Chief Justice 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.
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The court had earlier also raised the question as to 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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