New Delhi: Even an elected Legislative Assembly in Jammu and Kashmir has no power to abrogate Article 370, senior advocate Kapil Sibal told a Constitution Bench of the Supreme Court.
After the Constituent Assembly was dissolved in the 1950s, Article 370 ceased to exist as a temporary article and became a permanent one, contended Sibal, appearing for the petitioners challenging the abrogation of the Article. A five-judge Constitution Bench comprising Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant is hearing the pleas on a day-to-day basis except Mondays and Fridays.
Constituent Assembly must recommend abrogation of 370: Sibal
“If you want to abrogate 370, you have to get the recommendation of the Constituent Assembly,” Sibal said. “So long as it exists,” the CJI noted. “This is the point. The Constituent Assembly has served its term once it has framed Constitution,” Sibal said.
“In which case, 370 which is a transitional provision, assumes the character of permanent provision? By virtue of the fact that there is no Constituent Assembly?” the CJI asked.
When asked by Justice Kaul if Clause 3 of Article 370 became redundant after 1957, Sibal replied, “The Constituent Assembly even in the context of the Constitution of India is redundant.”
“So if Article 370(3) goes that means that Article 370 can never be abrogated?” Justice Surya Kant asked.
“Yes! That’s the whole point. That’s our case,” Sibal replied.
“So if an elected Assembly wants to abrogate article 370 then also it is not possible?” Justice Kaul asked, to which Sibal responded, “Not possible!”
Several petitions challenging the abrogation of the provisions of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which split the erstwhile state into two Union territories — Jammu and Kashmir, and Ladakh — were referred to a Constitution bench in 2019.
The oral arguments of the petitioners are expected to require approximately 60 hours to conclude. More than 20 petitions are pending before the Supreme Court challenging the Centre’s 2019 decision to abrogate Article 370 of the Constitution. Last month, the top court bench decided to devote all Tuesdays, Wednesdays, and Thursdays to the case till the hearing is complete.
Article 370 and its abrogation
Article 370 granted special status to Jammu and Kashmir and limited the legislative power of Parliament, except for matters related to defence, foreign affairs, and communications.
Article 370(3) also prevented Parliament from amending Article 370 without the concurrence of the J&K Constituent Assembly, which was dissolved in 1957.
In August 2019, the Bharatiya Janata Party government led by Prime Minister Narendra Modi revoked Jammu and Kashmir’s special status in two steps. The government argued Article 370 needed to be scrapped to integrate Kashmir and put it on the same footing as the rest of India. With the abrogation of Article 370, all Indian laws were automatically applicable to everyone in Kashmir. The abrogation also allowed people from outside the state to buy property there.
