Abrogation of Article 370: SC questions validity of provision for J&K
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New Delhi: A bench of five judges, headed by Chief Justice DY Chandrachud, posed a question to the petitioners: without an existing constituent assembly in Jammu and Kashmir, who can recommend the revocation of Article 370?
The removal of the constitutional provisions that granted special status to Jammu and Kashmir and the revised decision to convert the state into two union territories faced heavy backlash from the opposition when it was announced in 2019.
The bench told Kapil Sibal, the senior advocate vouching for the petitioners, that Article 370 was a temporary provision and not a permanent one in the constitution. The bench further asked the senior advocate how the provision could be made permanent, considering that the Jammu and Kashmir Constituent Assembly stopped functioning after 1957.
The five-member bench, comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, recalled proviso 3 of Article 370, which states, "Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification."
Chief Justice DY Chandrachud asked the petitioners, "What happens when the tenure of the 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 the President issues a notification, the recommendation of the constituent assembly is required. But the question is, what would happen when the constituent assembly ceases to exist?"
Sibal, the lead counsel for the petitioners, emphasized that neither can the President revoke the article without the recommendation of the constituent assembly. He added, "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 the constituent assembly and revoked Article 370, saying it is exercising the will of the people of Jammu and Kashmir. Can such power be exercised?"
The hearing has been set to continue on Thursday, without any major outcomes. The SC has allocated daily hearings on the matter, with the exception of Mondays and Fridays, reserved for other matters.
The SC has clarified that the Center's affidavit on the conditions prevailing in the region after Article 370 was repealed will have no relevance in the petitions concerning the constitutional provisions.
