The Supreme Court on Wednesday commenced its much awaited hearing on pleas challenging dilution of Article 370 of the Constitution, related to special status of Jammu and Kashmir, by posing a question as to who can recommend revocation of a "temporary provision" as Constituent Assembly of the erstwhile state ceased to exist in 1957.
Senior advocate Kapil Sibal, initiating arguments for the petitioners, contended the special provision was removed by a political act and not through the constitutional procedure.
A five-judge bench led by Chief Justice of India D Y Chandrachud asked him whether it is possible for an elected assembly to abrogate Article 370, which bestowed special status on the erstwhile state of Jammu and Kashmir.
Sibal said that the purpose of Article 356, under which the President’s rule is imposed in a state, is supposed to be a temporary position and is not intended to decimate democracy.
Sibal, representing Mohd Akbar Lone, submitted before the bench also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant that clause 3 of Article 370 envisioned that the Constituent Assembly must play a role in the abrogation of Article 370.
The bench, however, pointed out that the acceptance of the sovereignty of the dominion of India was complete for all intent and purposes and the Constituent Assembly of Jammu and Kashmir reserved some rights over certain legislative subjects only, and they said that in clause 3, the President would have the right to abrogate 370.
Sibal replied that in clause 3 of Article 370, the Constituent Assembly has been specifically mentioned which showed the intent for it to play a role in the abrogation of Article 370.
He submitted that the court has to see the historical perspective in which they signed the Instrument of Accession. Sibal said that nobody disputes that they are integrated in India but subject to a constitutional provision.
The bench then asked Sibal, "If an elected assembly wants to abrogate Article 370 then also it is not possible?"
Sibal said it is not possible.
The bench then said that this argument only stands, if it is accepted that Article 370 becomes permanent after the Constituent Assembly ceases to exist.
The CJI further asked can a Parliament of the state to which it has agreed to merge into have limited powers in the state?
"So you are saying that after 1957, Article 370 could not be abrogated? And even after the completion of the Constituent Assembly tenure, clause 3 of Article 370 will continue to operate," the bench asked him.
The bench further asked what happens after Constituent Assembly lapses, as it was supposed to be functional only from 1950 to 1957.
"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," the bench asked.
The Chief Justice also said, “no Constituent Assembly can have an indefinite life".
Sibal said that there was this understanding between the Centre and the state that Constituent Assembly will determine the future course of action as to whether Article 370 should be abrogated or not. He said that the people of J&K are with India but there is a special relationship which is engrafted in Article 370.
Sibal also said it was a historic moment for him as the Supreme Court would be analysing why history was tossed out on August 6, 2019 and whether the procedure adopted by the Parliament was consistent with what democracy stands for and if the will of J&K people can be silenced.
The hearing on about 23 petitions would continue on Thursday.