SC Underlines Temporary Nature Of Provision In Article 370 Hearing, Says Constituent Assembly Absent In J&K

The Supreme Court questioned the petitioners who have challenged the revocation of Article 370 in Jammu and Kashmir, asking who can recommend its revocation when there is no constituent assembly present in the region.

The constitutional provision that granted special status to the former state is under scrutiny, as its abrogation has been challenged in the Apex court.

A five-judge constitution bench, led by Chief Justice DY Chandrachud, began hearing a series of pleas that challenge the decision made by the Centre on August 5, 2019, to revoke Article 370.

During the hearing, the bench, consisting of Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, questioned senior advocate Kapil Sibal, who represents the petitioners.

They asked how a provision like Article 370, which was initially stated as temporary in the Constitution, could become permanent after the Jammu and Kashmir constituent assembly's tenure ended in 1957.

The Supreme Court referred to proviso 3 of Article 370, which states that the President can declare, through a public notification, that the article will no longer be in effect or will only be in effect with certain exceptions and modifications, and from a specific date. However, it emphasizes that the recommendation of the Constituent Assembly of the State, mentioned in clause (2), is necessary before the President issues such a notification.

The Chief Justice of India (CJI) questioned Sibal regarding the conclusion of the constituent assembly's tenure. The CJI pointed out that no constituent assembly can exist indefinitely and referred to the proviso in clause (3) of Article 370. This proviso states that the recommendation of the constituent assembly of the state is required before the President issues a notification.

However, the CJI raised the question of what would happen when the constituent assembly no longer exists.

In response to the CJI's query, Sibal reiterated their argument that the President cannot revoke Article 370 without the recommendation of the constituent assembly. Sibal emphasized that this is the crux of their case.

Justice Gavai interrupted and asked Sibal whether their argument implies that no action could have been taken regarding Article 370 after 1957, when the Jammu and Kashmir constituent assembly's tenure ended.

Sibal clarified that the court's role is to interpret a constitutional provision and not to legitimize a process that is not recognized by the Constitution. They emphasized that their focus is on the constitutional aspect of the case.

Sibal argued against the repeal of Article 370, stating that it was not a constitutional act. He questioned whether Parliament had the power to act as a constituent assembly and revoke Article 370 in the name of the will of the people of Jammu and Kashmir.

The hearing on the matter remained inconclusive and is scheduled to continue.

The top court is currently conducting day-to-day hearings on the issue, except on Mondays and Fridays, which are reserved for miscellaneous matters. On these days, only fresh petitions are considered for admission hearings, and regular matters are not heard.

The Centre's affidavit regarding the conditions in Jammu and Kashmir after the August 5, 2019 notification repealing Article 370 was deemed irrelevant to the constitutional issue being adjudicated by the five-judge bench. The top court had previously stated this.

The Centre took the decision to remove the special status of Jammu and Kashmir and divide it into two union territories - Jammu and Kashmir (with legislature) and Ladakh (without legislature).

In 2019, a Constitution bench was formed to address various petitions challenging the revocation of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which resulted in the division of the state into two union territories.