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PremiumSupreme Court hearing on Article 370 abrogation | Day 2: The Supreme Court of India has resumed hearing on 'Article 370' on Thursday. A clutch of petitions to be heard today challenging the dilution of Article 370 of the Constitution in 2019 by the union government which took away the special status of Jammu and Kashmir.
Yesterday, on 2 August, a bench of 5 judges began the hearing. Senior advocate Kapil Sibal argued that Article 370 could not be abrogated as the Jammu and Kashmir Constituent Assembly never recommended it before its dissolution.
Chief Justice of India DY Chandrachud, Justices SK Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant are hearing the matter.
Catch all the latest details on Article 370 hearing at Mint's LIVE blog:
After listening to the arguments, the Supreme Court bench has risen for the day. Now apex court will resume hearing on 4 August.
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.
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.
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."
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.
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."
"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.
"Parliament works within the four corners of the Constitution. But the Constituent Assembly works in the absence of the Constitution and is not bound by anything ... They can do what they want.
So, the Parliament cannot convert itself into the Constituent Assembly. If this is allowed then one day the Constituent Assembly will breach the basic structure," Kapil Sibal said.
The hearing on Article 370 begins in the Supreme Court on Thursday. Senior advocate Kapil Sibal referred to the Constitutional Order of 1954 which superseded the 1950 order.
Supreme Court to hear pleas challenging abrogation of Article 370 of the Constitution that accorded special status to the erstwhile state of Jammu and Kashmir.
