Srinagar, Aug 02: The Supreme Court Wednesday asked key questions to the petitioners who have challenged the abrogation of Article 370 that gave special status to the erstwhile state of Jammu and Kashmir.
A 5-judge constitution bench headed by Chief Justice DY Chandrachud today commenced hearing a batch of pleas challenging the Centre’s August 5, 2019 decision to abrogate Article 370.
Supreme Court asked the petitioners who can recommend the revocation of Article 370 in Jammu and Kashmir when no constituent assembly exists there.
The bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant asked senior advocate Kapil Sibal, the lead counsel for the petitioners, as to how can a provision (Article 370), which was specifically mentioned as a temporary provision in the Constitution, become permanent after tenure of the Jammu and Kashmir constituent assembly came to an end in 1957.
Chief Justice asked Sibal, “What happens when the tenure of constituent assembly comes to an end? No constituent assembly can have an indefinite life. The proviso to clause (3) of Article 370 refers to the recommendation of the constituent assembly of the state, and it says before President issues notification the recommendation of constituent assembly is required. But the question is what would happen when the constituent assembly ceases to exist?”
Sibal responded by saying it was precisely their point and theira whole case is that the president cannot issue any notification revoking the Article 370 without the recommendation of the constituent assembly.
Justice Gavai interjected and asked him whether the argument being made is that nothing could have been done about Article 370 after 1957, when the tenure of the Jammu and Kashmir constituent assembly came to an end.
Sibal said the court is currently interpreting a constitutional provision and it is not here to legitimise the process which is unknown to the Constitution.
“Through a political act Article 370 was tossed out of the window. This was not a constitutional act. Parliament took upon itself the role of constituent assembly and revoked Article 370 saying it is exercising the will of the people of Jammu and Kashmir. Can such a power be exercised?” Sibal said.
The hearing will continue on Thursday, as the top court had earlier stated that it will hear the petitions vis-a-vis Article 370 on a daily basis from August 02 except for Mondays and Fridays.
There are around 20 petitions filed against the abrogation of Article 370 on August 5, 2019.
On July 11, when the Supreme Court listed the matter for hearing for the first time since pleas were filed, IAS officer Shah Faesal and former student activist Shehla Rashid withdrew their petitions from the top court.
CJI Chandrachud then directed the registry to remove the names of both from the list of petitioners, following which the title of the case was changed as “In Re: Article 370 of the Constitution”.
Under Article 370, special rights and privileges were granted to the people of Jammu and Kashmir from 1954 to 2019 in accordance with the Instrument of Accession.
Subsequently, the Jammu and Kashmir (Reorganisation) Act of 2019 came into effect, bifurcating the erstwhile state into the Union Territories of Jammu and Kashmir, and Ladakh.