Tag: Article 370

Article 370 hearing concludes, Supreme Court reserves verdict

Many petitions also challenged the Jammu and Kashmir State Reorganization Act, by which the state was bifurcated into two Union territories in 2019.

Many petitions also challenged the Jammu and Kashmir State Reorganization Act, by which the state was bifurcated into two Union territories with effect from October 30, 2019 (HT Archive)

Following a marathon hearing spanning over 16 days, the Supreme Court on Tuesday reserved its verdict in a clutch of petitions that have challenged the August 2019 abrogation of Article 370, which granted special status to Jammu and Kashmir, and the subsequent restructuring of the state into two Union territories.

The Constitution bench that heard and reserved the matter comprised Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R Gavai and Surya Kant.

The hearing commenced on August 2 after a hiatus of over three years, with its last listing dating back to March 2020 when a five-judge bench declined to refer the matter to a larger bench. The reference was sought on the grounds that two previous judgments of the apex court were conflicting with each other, but the bench did not agree with this contention.

The final leg of the proceedings in the matter witnessed extensive arguments and discussions with the petitioners buttressing on the permanent nature of Article 370 and thus, the special status of J&K while the Centre and other respondents emphasising that the provision was always meant to be temporary and that its abrogation was the ultimate step towards complete integration of J&K with the Union of India.

Senior advocate Kapil Sibal spearheaded the legal submissions on behalf of the petitioners in the case, followed by a strong line up of other senior counsel, including Gopal Subramanian, Rajeev Dhavan, Dushyant Dave, Zafar Shah, CU Singh and Gopal Sankaranarayanan.

While some petitioners brought up the requirement of consent from the constituent assembly for abrogation of Article 370, others questioned the validity of the President’s rule that was in effect when the abrogation was made. A few of these pleas went back to the Instrument of Accession, while some highlighted the Supreme Court’s ruling of 2018 that observed that Article 370 had gained a status of permanence.

Source: https://www.hindustantimes.com/india-news/supreme-court-reserves-verdict-on-article-370-abrogation-and-j-k-restructuring-petitions-after-16-day-hearing-101693941178558.html

 

Article 370 case: Integration of Jammu and Kashmir with India was not conditional but absolute, says Supreme Court

Senior Advocate Zaffer Shah said that Article 370 has nothing to do with national security or law and order problems in the State.

In no way was the integration of Jammu and Kashmir (J&K) with India in 1948 conditional, the Supreme Court said on Thursday while hearing the batch of petition challenging the abrogation of Article 370. [In Re: Article 370 of the Constitution].

A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant underlined the integration of J&K with India was absolute.

This was in response to the argument of Senior Advocate Zaffar Shah that if the Government of India wanted to ‘completely integrate’ the erstwhile State with the Union of India, then a merger agreement should have been executed as it happened with other princely States.

CJI Chandrachud then remarked,

“One thing is very clear that the there was no conditional integration of Jammu and Kashmir with India. The integration was absolute and complete in every which way. So the only question which remains in a limited sense was if Parliament could exercise the power etc. Take the case of an Indian State apart from J&K. There are restraints on the power of parliament to make laws for any States for subjects on State lists. Distribution of the legislative powers does not impact sovereignty of India.”

Today was the fifth day of the hearing in the case.

The matter is being heard nearly four years after the Central government’s move in August 2019 that resulted in the revocation of the special status of Jammu and Kashmir (J&K).

The erstwhile State was subsequently bifurcated into two Union Territories.

The Union Home Ministry recently filed an affidavit before the Court stating that after the abrogation of Article 370, Jammu and Kashmir has witnessed unprecedented stability and progress, with stone pelting and school closures becoming a thing of the past.

Senior Advocate Zaffar Shah argued today on behalf of the Jammu & Kashmir High Court Bar Association.

He set out the historical context behind Article 370.

“Why was J&K special? It was because there was no merger agreement and the State had to maintain a constitutional autonomy. We are here before this court because we believe that J&K has constitutional autonomy and this autonomy comes from the instrument of accession and Article 370. President and Union can make laws for any state in the country without their view but not for Jammu and Kashmir,” he stated.

Justice Kaul opined that to view Article 370 as unamendable might have dangerous implications.

“To say that Article 370 is such that it can never be amended is a dangerous thing to say. State assembly could have also said that let all provisions of the Constitution apply to J&K using Article 370. Except 370 remains a skeleton, everything else applies. Even now in the sense Article 370 is not removed, whatever was there in Article 370 has been removed using the machinery of Article 370 itself. Does it not all come down to one thing – whether the process followed was flawed or not is the question here?”

Justice Khanna then asked whether the Indian Constitution was supreme or the Instrument of Accession executed between the Government of India and Maharaja J&K by which J&K became a part of India.

“Of course the Constitution of India is supreme but with Article 370 in it,” replied Shah.

The CJI said that requirement to have concurrence of the State is not something unique to J&K laws.

“See Article 248. Parliament can make laws even on area which is in State list only, but it requires concurrence of the concerned State. But this does not impact the sovereignty of the Union,” the CJI underlined.

Shah replied by saying that the J&K was only seeking to reclaim its constitutional autonomy that had been snatched away.

Source: https://www.barandbench.com/news/litigation/article-370-case-integration-jammu-kashmir-with-india-not-conditional-supreme-court

Exit mobile version