NEW DELHI: The Supreme Court will deliver its verdict on a batch of petitionsincluding those filed by National Conference and People’s Democratic Party, challenging the validity of the Centre’s 2019 decisions to scrap the nearly 70-year-old special status for J&K under Article 370 and its bifurcation into two Union Territories.
The hearing by a five-judge constitution bench comprising Chief Justice D Y Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant commenced on August 2, lasted 16 days over a 35-day period and the order was reserved on September 5.The petitioners argued for ten-and-a-half days, in putting across their views that Article 370 could not be amended after dissolution of the J&K Constituent Assembly in 1957. The respondents, including the Union government, concluded their arguments in five-and-a-half days.
The petitioners, represented by senior advocates Kapil Sibal, Gopal Subramanium, Rajeev Dhawan, Zaffar Mohd Shah, Dushyant Dave and others, argued that J&K was an integral part of India, but there was a special relationship between India and the people of J&K through Article 370 which could not be jettisoned by an executive order. The government could not exercise the will of the people of J&K through Parliament to abrogate Article 370, they said.
They argued that the decision to convert a state into a UT without the consent of the state was “unconstitutional, arbitrary, illegal and unprecedented”. Any alteration to Article 370 could have been done only by the J&K Constituent Assembly, they said, adding that once the Constituent Assembly lapsed in 1957 without providing any mechanism in the J&K constitution to amend, alter or abrogate Article 370, it assumed a permanent character.
The petitioners said the Instrument of Accession signed by Maharaja Hari Singh in October 1947 gave away sovereignty only over defence, communication and foreign relations.
The petitioners contended that Article 370 provided limitations regarding the power of Parliament to make laws for J&K. They also said the J&K governor could not have dissolved the assembly without the aid and advice of the council of ministers.
The Centre and parties in support of scrapping Article 370, represented by attorney general R Venkataramani, solicitor general Tushar Mehta, senior advocates Harish Salve, Rakesh Dwivedi, V Giri, Mahesh Jethmalani and Guru Krishna Kumar and others, argued that removal of Article 370 had become imperative to preserve the integrity of the nation and for uniform application of the Indian Constitution to all states.
The Centre said this had achieved a delicate balance between preserving the nation and Constitution on the one hand and safeguarding national interest on the other. It said the terror attack in Pulwama in February 2019, which killed 40 CRPF jawans, led the Centre to make up its mind to pull the plug on special status for J&K.
The Centre said the framers of the Indian Constitution inserted Article 370 to tide over an externally induced situation in J&K during 1947-50, adding that it should have been abrogated in 1957 after dissolution of the J&K Constituent Assembly.
During the course of the hearing, the SC observed that it was difficult to accept the argument that neither the assembly nor Parliament could touch Article 370 even when the latter had the power to amend all provisions except the basic structure provisions.
The bench said there was no question of a ‘referendum’ relating to J&K’s accession or application of the entire Constitution through the nullification of Article 370 to end the state’s special status and its bifurcation into two UTs.
It also said if Article 370 became permanent after 1957, why was it placed in Part 21 of the Constitution which deals with ‘temporary, transitional and special provisions’.
The hearing by a five-judge constitution bench comprising Chief Justice D Y Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant commenced on August 2, lasted 16 days over a 35-day period and the order was reserved on September 5.The petitioners argued for ten-and-a-half days, in putting across their views that Article 370 could not be amended after dissolution of the J&K Constituent Assembly in 1957. The respondents, including the Union government, concluded their arguments in five-and-a-half days.
The petitioners, represented by senior advocates Kapil Sibal, Gopal Subramanium, Rajeev Dhawan, Zaffar Mohd Shah, Dushyant Dave and others, argued that J&K was an integral part of India, but there was a special relationship between India and the people of J&K through Article 370 which could not be jettisoned by an executive order. The government could not exercise the will of the people of J&K through Parliament to abrogate Article 370, they said.
They argued that the decision to convert a state into a UT without the consent of the state was “unconstitutional, arbitrary, illegal and unprecedented”. Any alteration to Article 370 could have been done only by the J&K Constituent Assembly, they said, adding that once the Constituent Assembly lapsed in 1957 without providing any mechanism in the J&K constitution to amend, alter or abrogate Article 370, it assumed a permanent character.
The petitioners said the Instrument of Accession signed by Maharaja Hari Singh in October 1947 gave away sovereignty only over defence, communication and foreign relations.
The petitioners contended that Article 370 provided limitations regarding the power of Parliament to make laws for J&K. They also said the J&K governor could not have dissolved the assembly without the aid and advice of the council of ministers.
The Centre and parties in support of scrapping Article 370, represented by attorney general R Venkataramani, solicitor general Tushar Mehta, senior advocates Harish Salve, Rakesh Dwivedi, V Giri, Mahesh Jethmalani and Guru Krishna Kumar and others, argued that removal of Article 370 had become imperative to preserve the integrity of the nation and for uniform application of the Indian Constitution to all states.
The Centre said this had achieved a delicate balance between preserving the nation and Constitution on the one hand and safeguarding national interest on the other. It said the terror attack in Pulwama in February 2019, which killed 40 CRPF jawans, led the Centre to make up its mind to pull the plug on special status for J&K.
The Centre said the framers of the Indian Constitution inserted Article 370 to tide over an externally induced situation in J&K during 1947-50, adding that it should have been abrogated in 1957 after dissolution of the J&K Constituent Assembly.
During the course of the hearing, the SC observed that it was difficult to accept the argument that neither the assembly nor Parliament could touch Article 370 even when the latter had the power to amend all provisions except the basic structure provisions.
The bench said there was no question of a ‘referendum’ relating to J&K’s accession or application of the entire Constitution through the nullification of Article 370 to end the state’s special status and its bifurcation into two UTs.
It also said if Article 370 became permanent after 1957, why was it placed in Part 21 of the Constitution which deals with ‘temporary, transitional and special provisions’.
