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It is incorrect to assert that Article 370 acquired a permanent status in the Constitution: High Court

The Supreme Court disagreed with a claim made by petitioners who opposed the 2019 repeal of the clause granting the region special status and the division of Jammu & Kashmir into two Union territories, noting that Article 370 cannot be said to have assumed the state of permanence in the constitutional fabric.

The issuance of constitutional orders between 1957 and 2019 further demonstrate that Article 370 was in effect, as was the specific clause under the constitutional provision that allowed the President to make Article 370 cease to exist upon the fulfillment of certain conditions, according to a bench led by Chief Justice of India Dhananjaya Y Chandrachud.

 

The court’s panel, which included justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R. Gavai, and Surya Kant, remarked that while other provisions of Article 370 were still in effect for the ensuing 62 years after the Constituent Assembly of J&K was dissolved in January 1957, the provision on Article 370’s abrogation could not be held to be non-existent in isolation.

 

It would not be accurate to presume that Article 370 had served its purpose and that the Indian Constitution now permanently included what was only intended to be a transitory provision.Because there was no dispute that constitutional directives had been gradually issued starting in 1957. The court questioned senior lawyer Dushyant Dave, who was arguing on behalf of one of the petitioners, Rifat Ara Butt, whether Article 370 had already worked itself out and served its purpose after the Constituent Assembly had finished its job.

 

In his defense, Dave said that the clause cannot be repealed by any later act of Parliament or the President since the Constituent Assembly of J&K chose to uphold Article 370 rather than abolish the former state’s unique status. The proviso to Article 370 (3), he said, cannot be used to override the provision at this time since the article has served its function and is no longer necessary.

 

The bench didn’t seem impressed, however. “Your whole thesis is that since the Constituent Assembly finished its work in 1957, Article 370 has resolved itself. However, it would not be supported in the slightest by constitutional practice since constitutional orders were issued gradually amending the articles of the Constitution as they applied to J&K, which indicates that Article 370 had really remained to be in effect even after then.

 

The court made the point that, if Dave’s argument were to be accepted, there would be no longer be any power to change the J&K Constitution after 1957 by incorporating the provisions of the Indian Constitution since only Article 370 provided the right to do so.

 

There is internal conflict in this statement, since the result would be that when the Constituent Assembly finished its work in 1957, there could be no revision to the J&K Constitution at all Article 370 (2). And this is refuted not only by constitutional practice but also by the adoption of changes made even after 1957 and up to the contentious amendment of 2019,” it stated.

Dave once referred to the issuing of constitutional orders as a “wrong practice” that had been going on for 60 years, but the court did not share his opinion.

 

“What are you discussing? We are discussing a 64-year-old practice. How do we explain the exercise of powers over the past 64 years if the power under the proviso to clause 3 of Article 370 (on abrogation) has exhausted itself and the power under the proviso to 370(1)(d) (on applying provisions of the Indian Constitution to J&K) has also done so? It would be extremely difficult to establish that 370 (3) no longer exists if 370 (1) remains in effect, the court informed Dave, adding that the supreme court’s interpretation of a constitutional provision must be logically consistent.

On the seventh day of the hearing, Dave wrapped up his arguments. He claimed that the nullification of Article 370 in August 2019 was a fraud on the Constitution and that the only option left for the Center to repeal Article 370 was to amend the Constitution with the support of state legislatures and a two-thirds majority in both houses of Parliament. On August 22, the case’s arguments will resume back again.

Academic and author Radha Kumar was represented by senior attorney Shekhar Naphade, who argued that the presidential proclamation and assumption of the authority of the J&K legislative assembly to nullify the provision were unlawful because the concurrence of the Constituent Assembly cannot be equated with the opinion of the assembly for the purposes of repealing Article 370. On Thursday, Naphade finished submitting his materials.

A number of applications were filed challenging the repeal of Article 370 shortly after the presidential order in August 2019 was issued. These petitions were submitted by National Conference party lawmakers, Kashmiri individuals, former government officials, and other organizations.

While some petitioners argued that the Constituent Assembly had to approve the repeal of Article 370, others questioned the legality of the President’s Rule that was in force at the time. Some of these arguments referenced the Instrument of Accession, while others referred to the Supreme Court’s 2018 decision that said that Article 370 had become permanent. Many of these arguments also contested the Jammu & Kashmir State Reorganisation Act, which took effect on October 30, 2019, and divided the state into two Union territories.

 

Despite opposition from the national government, which claimed that Article 370 had global and transnational consequences, the Supreme Court issued notices on the appeals on August 28, 2019.

 

The Supreme Court said on July 3 that its five most senior justices will make up a new Constitution bench. A week later, the new bench issued a directive stating that the case’s daily hearing will start on August 2.

 

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