J&K Article 370 Hearing in Supreme Court: Know FULL UPDATES From Day 2 Here
J&K Article 370 Hearing in Supreme Court: Know FULL UPDATES From Day 2 Here
The Supreme Court, on Wednesday, began hearing petitions challenging the scrapping of Article 370 that granted special status to the erstwhile state of Jammu and Kashmir. 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 will hear the pleas on a day-to-day basis except Mondays and Fridays. The petitions challenge a presidential order from August 5, 2019, which abrogated Article 370.
Senior advocate Kapil Sibal on August 3 argued before the Supreme Court that the Legislature did not have the power to recommend the abrogation of Article 370 as per the provisions of the Jammu & Kashmir (J&K) Constitution.
Mr. Sibal also referred to the Constitution (Application to Jammu and Kashmir) Orders of 1950 and 1954 to contend that a ‘solemn promise’ was made that no legislation that intends to revise the boundaries of J&K can be passed without the concurrence of the J&K government.
He pointed out that although the Presidential Order of 2019 [C.O. 272] had invoked Article 368 of the Constitution to transfer power to recommend abrogation from the ‘Legislative Assembly’ to the ‘Constituent Assembly’ – this was not permitted as per the court’s prior ruling in Kesavananda Bharati v. State of Kerala (1973).
FULL UPDATES From Day 2 Here
03 Aug 2023, 05:03:12 PM IST
People who gave themselves this constitution are left out of process, says Sibal
Justice Surya Kant asked, as quoted by LiveLaw,” What was the procedure followed in passing the constitution order?”
To this, Sibal said, “All passed with concurrence.”
Then Justice Kant asked again, “But what was the procedure? Was it through the parliament? Or by the president?”
Sibal said, “It was through a presidential notification – after taking the consent – concurrence or consultation. That’s how it’s made applicable. The views of the people were to be taken.”
He added, “When all states were getting integrated into the Union, they didn’t need consent.”
He continued, “But since J&K was not integrated, so you lose the link between the center and the state altogether. You absorb the powers of the state with yourself as the executive, as well as the parliament and the legislature. And you decide without reference to any other institution.”
“So you give yourself consent. The people who gave themselves this constitution are left out of the process. This is essentially a breakdown of the constitutional structure,” Sibal said, as LiveLaw quoted.
03 Aug 2023, 04:31:32 PM IST
‘Can a ratification be done under 356?’ asks CJI DY Chandrachud
CJI DY Chandrachud then asked, as quoted by LiveLaw, “Can a ratification be done under 356? In relation to that particular state legislature?
To this, Sibal said, “No, because he’s exercising as state legislature.” He went on adding, “Ratification is of the state so there are two authorities — one parliament passing the law and then the state authority ratifying it. You can’t take over both. It’s like clapping by one hand. You can’t even introduce the bill, forget about anything else! It’s clear you can’t introduce the bill. Here, by 356 you have done away with it.”
Following this, the discussion shifted to the conversion of Jammu and Kashmir into Union Territory.
03 Aug 2023, 04:16:21 PM IST
‘You don’t use 356 for its (democracy) decimation’, says Kapil Sibal
After listening to the argument of Sibal, CJI DY Chandrachud said, as LiveLaw quoted, “Of course this has the optics about the way it was done. But there is no challenge to do anythimng that was done,” adding, “What’s the frame of the challenge?”
To this, Sibal said, “The question is what is the power under 356. The quintessential object of 356 is to restore democracy. You take over because a government cannot run..for a temporary period, for the restoration of democracy. You don’t use 356 for its decimation.”
03 Aug 2023, 04:08:45 PM IST
This is pure political act; governor, govt were in tandem: Sibal
Sibal further said, as quoted by LiveLaw, “the council of ministers was suspended. The governor didn’t even wait for a day.”
Justice Kaul said, “That’s also a part of the political process.”
To this, Sibal said, “That’s precisely what I am saying,” adding that the governor dissolved the government on 21 November.
Sibal said, as LiveLaw quoted, “The Governor cannot dissolve the legislative assembly without the council of ministers. 36, 38, and 92 are his only powers. He has already suspended the council of ministers.”
He added, “This is pure political act. The governor and government were in tandem. They wanted to get rid of 370. Why would governor on 20th June, after withdrawal of support on 19 June suspend the assembly? Not allow any political affiliation so a new government could be formed?”
He then showed the proclamation to the bench, saying on 19 December, the proclamation of governor’s rule expires. He then added, that a proclamation under 365 promulgating President’s rule is passed.
“There is no council of ministers, no government in place. But he send a report that government of the state cannot be carried out. There are no negotiations, no communication. This is amazing piece of handiwork. This is a mosaic of illegalities,” LiveLaw quoted Sibal as saying.
03 Aug 2023, 03:55:53 PM IST
Can’t introduce bill at 11 o’clock, and pass a resolution without anyone knowing about it: Kapil Sibal
Debating in the Supreme Court, Senior Advocate Kapil Sibal said, as quoted by LiveLaw, “You can’t introduce a bill in parliament at 11 o’clock, pass a resolution without anyone knowing about it.”
He added, “It sorts of fits into the argument that this was a political process, carried through constitutional means.”
To this Justice SK Kaul said, “Everything is a political process Mr Sibal, the question is if it fits the constitution.”
03 Aug 2023, 02:43:40 PM IST
Legislative assembly cannot be converted into constituent assembly: Kapil Sibal
“Legislative assembly cannot be converted into constituent assembly because intent of legislature can be partisan but that cannot be with the constituent assembly,” Sibbal said.
Sibal: I was reading Kesavananda Bharati judgment on the point of marginal note and how it plays a small role in the constructive interpretation of the Constitution of India and Article 368.
Legislative assembly cannot be converted into constituent assembly because intent of legislature can be partisan but that cannot be with the constituent assembly.
Justice Kaul: Was the constituent assembly of J&K elected?
Aug 3, 2023 14:19 IST
- Supreme Court resumes hearing on Article 370
A Constitution bench of the Supreme Court of India is hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution which conferred special status on the erstwhile State of Jammu and Kashmir.
A Bench of Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant is hearing the matter.
Yesterday, the top court began hearing in the matter with a question to the petitioners about whether the Constitution makers and Article itself envisaged the provision as a permanent or temporary one.
The Court sought to know whether the Article was envisaged as a permanent provision merely because the Constituent Assembly of Jammu and Kashmir (J&K), which was empowered to recommend the deletion of the provision, ceased to exist in 1957.
The CJI was referring to the proviso to clause 3 of Article 370 as per which the recommendation of the Constituent Assembly of Jammu and Kashmir is necessary before Article 370 can be declared to be inoperative by the President of India.
Over 20 petitions are pending before the Supreme Court challenging the Central government’s 2019 decision to abrogate Article 370 of the Constitution, which resulted in the revocation of Jammu and Kashmir’s special status. The erstwhile State was subsequently bifurcated into two Union Territories.
When the matters were listed in March 2020, a five-judge Constitution Bench of the Supreme Court had decided not to refer the batch of petitions to a seven-judge Constitution Bench, despite some petitioners seeking a reference.
On July 11 this year, two petitioners, Shah Faesal and Shehla Rashid sought permission to withdraw their pleas and the request was allowed by the Court.