Supreme Court hearing on Article 370 abrogation | Day 4

The Supreme Court is hearing from August 2 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. A five-judge constitution Bench headed by Chief Justice D.Y. Chandrachud has been conducting day-to-day hearings

August 09, 2023 10:04 am | Updated March 13, 2024 04:25 pm IST

A view of the Supreme Court of India, in New Delhi.

A view of the Supreme Court of India, in New Delhi. | Photo Credit: ANI

Senior advocate Gopal Subramanium on August 9 apprised a Constitution Bench headed by Chief Justice of India D.Y. Chandrachud that the Jammu and Kashmir (J&) Constituent Assembly did not intend for Article 370 to be abrogated and that it had envisioned for the Constitution of India to apply to J&K with modifications and exceptions. Reference was made to Section 147 of the J&K Constitution which bars any amendment that seeks to make changes in the provisions of the Constitution of India as applicable to J&K.

During the hearing, CJI Chandrachud also enquired if the Presidential Order [CO 272] could have amended Article 370(3) of the Constitution with the help of an interpretative provision –Article 367.

Responding to this query, Mr. Subramanium submitted that the exercise of powers under Article 356 cannot clothe one with legal authority under Article 370.

Senior advocate Zaffar Shah, appearing on behalf of the Bar Association of J&K, is set to advance submissions tomorrow that is on August 9.

Earlier, senior advocate Kapil Sibal had contended that a unilateral executive decision cannot change the terms of a relationship that is constitutionally embedded in Article 370. Chief Justice D.Y. Chandrachud had also pointed out earlier that as a constitutional democracy, India seeks its public opinions through established institutions like the Parliament and not through Brexit-type referendums.

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.

Also Read | OPINION | Understanding Article 370

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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