Hearing on Article 370 petitions to resume Tuesday

KT NEWS SERVICE. Dated: 8/5/2023 12:16:06 AM

NEW DELHI, August 4: Hearing in the batch of petitions challenging the dilution of Article 370 of the Constitution of India which stripped the erstwhile state of Jammu and Kashmir of its special status will resume on Tuesday.
A Constitution bench of the Supreme Court headed by Chief Justice of India Dr D.Y. Chandrachud and comprising Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant, is hearing a batch of petitions challenging the August 5, 2019 decision to end the autonomy guaranteed to J&K under Article 370 of the Indian Constitution.
A batch of petitions, In Re Article 370, challenges The Constitution (Application to Jammu and Kashmir) Order, 2019 (Presidential Order C.O. 272), which used Article 370(1)(d) to extend all provisions of the Indian Constitution, including its “exceptions and modification” to apply in relation to J&K.
On Wednesday and Thursday, the court heard arguments raised by Senior Advocate Kapil Sibal, who was appearing for NCP MP Mohammad Akbar Lone.
These are some of the highlights of the hearings:
Wednesday, August 2: During the hearing on 2 August, Chief Justice of India (CJI) D Y Chandrachud questioned whether Article 370 fell beyond the scope of the Constitution's amending powers. Justice BR Gavai echoed similar concerns, inquiring whether Article 370 could be regarded as unamendable, considering that the Constitution is a living document.
Chief Justice of India Dr. D.Y. Chandrachud raised a question: “Article 370 specifically uses the expression ‘temporary’. Can we then say that the powers under clause (3) of Article 370 come to an end and this converts Article 370 into a permanent provision which it was never intended to be?”

Over the course of yesterday's hearing Sibal stressed that the abrogation of Article 370 amounted to the Parliament exercising the 'will of the people of J&K,' which is an exercise of political power and not within the jurisdiction of a legislative body.
He emphasised that the sudden nullification of the region's 'unique constitutional structure' by the Governor and the Parliament occurred without any consultation with the State of J&K.
Sibal pointed out, “The [Supreme Court’s hearing on abrogation of Article 370 is] historic because it took My Lords five years to hear this case. And for five years, there has been no representative government in the state of J&K.”
He added, “Government of the day was staring at the provision of Article 370. According to me, through a political act and not a constitutional procedure declared Article 370 is gone… Such a political act cannot be determined by the Parliament”.
Thursday, August 3: The Supreme Court on Thursday asked petitioners challenging the amendment to Article 370 regarding the status of the erstwhile state of J&K whether their argument that changes made to the provision in 2019 is beyond the amending powers of Parliament amounts to creating a new category, apart from the Basic Structure, which too is immune to amendment.
According to The Leaflet, Sibal stated that the scheme of Article 368 (power of the Parliament to the Constitution and procedure thereof) itself contains intrinsic pieces of evidence to give a limited meaning to the expression “amendment”.
The Parliament, while enacting a law, functions within the contours of the Constitution. The Constituent Assembly, on the other hand, does not have a Constitution. In that context, it has wide powers, including the power to abrogate a certain provision, till the time it remains operative.
The CJI pointed out: “Even when the Parliament amends the Constitution, it is not exercising the powers of a Constituent Assembly. It may be exercising a constituent power; the power to amend.”
The CJI reasoned that the Parliament and the Constituent Assembly are two different entities and that there is no scope for the Parliament to convert itself into a constituent assembly.
To this, Sibal added: “See the danger of this argument. Tomorrow, the Parliament [may] say it is the Constituent Assembly. It will do away with the basic structure [of the Indian Constitution]”.



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