New Delhi: The Jammu and Kashmir Legislative Assembly is a creature of the Constitution of the erstwhile state, and not the Constitution of India, submitted senior journalist Prem Shankar Jha's counsel, challenging the scrapping of Article 370, before the Supreme Court on Tuesday.
Senior advocate Dinesh Dwivedi, representing Jha, told a five-judge Constitution Bench headed by Justice N.V. Ramana, that: "Legislative Assembly is one which is a creature of the Constitution of J&K and not the Constitution of India where Governor cannot be a substitute."
He insisted that Constituent Assembly was independent of the Constitution.
"The Legislative Assembly cannot be a substitute or the successor of even the Constituent Assembly of Jammu and Kashmir," Dwivedi.
To bolster his argument, he said that the Legislative Assembly is the creature of the Constituent Assembly of Jammu and Kashmir, which was a plenary sovereign authority unlike the Legislative Assembly.
He also added that J&K Constituent Assembly was dissolved in 1957 after the formulation of the J&K Constitution, and as a consequence, Article 370 was apparently frozen.
Dwivedi also argued that the presidential orders issued on August 5-6 are per se illegal in as much as the Constitution of Jammu and Kashmir being outside the Constitution of India. "And Article 370, it can only be repealed, ceased or suspended in the manner prescribed by the supervising law of J&K only and not otherwise. What cannot be done directly, cannot be done indirectly also," he argued.
He insisted that these presidential orders, as they intend to apply all provisions of the Constitution of India are null and void, since they have the effect of repealing the Constitution of J&K and replacing it with "Constitution of India by an executive order".
He emphasised that Constitutions are real codes of governance for an undefined period, and they can only be modified or amended in exercise of the self-confined amendatory powers.
Dwivedi said that Article 370 was apparently a tunnel connecting the two Constitutions, and insisted that its sole object was to ensure that people of the region have a say in their governance through their own Constitution. The senior advocate argued that Parliament could exercise few powers on the erstwhile state - alter its boundary and change the name, but cannot convert it into a Union Territory.
He also urged the court to refer the matter to a larger bench against the backdrop of two conflicting decisions - 1959 and 1970 - by a five-judge bench of the apex court on the subject. While the former recognized the temporary nature of Article 370, the latter recognises its permanence by giving the source of power to the Union, and also allows it to regulate the governing relationship between the Centre and state.
The arguments on the matter will continue on Wednesday.