SC questions on Thursday asked questions regarding the issuance of several constitutional orders allowing the provisions of the Indian Constitution to be implemented after 1957 in Jammu and Kashmir. The top court was referring to the Constitution (applicable in Jammu and Kashmir) amendment orders passed from 1957 to August 6, 2019.
Chief Justice D.Y. A five-judge bench headed by Justice Chandrachud expressed surprise at the submission of senior advocate Dushyant Dave, appearing for one of the petitioners, that Article 370, which gave special status to the erstwhile state of Jammu and Kashmir, has expired. It was done and it had achieved its objective.
Dave, in contrast to other senior lawyers including Kapil Sibal and Gopal Subramaniam, argued that Article 370 cannot be considered permanent in its entirety and it continued even after the term of the Constituent Assembly of Jammu and Kashmir expired in 1957.
Advocate Dave, appearing for petitioner Rifat Ara Butt, said that with all due respect, I would like to say that the term of Article 370 is over. It has served its purpose. Article 370(1) is left till now because if tomorrow the constitution is amended and a new article is inserted, which we would like to apply to J&K also… then to this limited extent Article 370(1) is necessary It is possible.
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Chief Justice Chandrachud then asked Dave that if the Constituent Assembly had completed its work for the state of Jammu and Kashmir and Article 370 had also done its work and achieved its objective, then why the constitutional orders were issued after 1957 Gone.
Justice Sanjay Kishan Kaul, Justice Sanjeev Khanna, Justice B.K. R. Gavai, and Justice Surya Kant were also there. Dave told the bench that if the Constituent Assembly of Jammu and Kashmir had decided to accede to India. Then the decision cannot be changed.
He said that this cannot be reconsidered. As far as Article 370(3) is concerned, the President became the executive in 1954. (After the Constitution Order was issued implementing most of the provisions of the Indian Constitution).
During the seventh day of hearing on several petitions challenging the Centre’s August 5. 2019 decision, Dave said that only Article 370(1) remained. And its time limit was extended by amending the Constitution from time to time.
Referring to the various exceptions to Article 370. Chief Justice Chandrachud told Dave that then you say that the work of Article 370. Also completed as soon as the Constituent Assembly completed its work.
But this is at least falsified by the constitutional act. As such orders were issued even after 1957 and the provisions of the Constitution. With respect to the State of Jammu and Kashmir were subsequently amended.
That is, in fact, Article 370 continued even after that. He said that therefore it would not be correct to say that Article 370 had completed its life. And this temporary provision had in fact assumed a position of permanence in the Indian constitutional framework.
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The Chief Justice told the senior counsel that in such a situation. The question of successive constitutional orders since 1958 does not arise. Dave said that Clause 3 of Article 370 only deals with the continuation of the entire provision of Article 370.
And since the Constituent Assembly of Jammu and Kashmir agreed to be a part of India. And hence it is a permanent decision. The bench said that Dave’s arguments deserve consideration. Now the matter will be heard on August 22.
The bench asked the counsel appearing for the petitioners to complete their arguments by August 22. After which it would hear the Centre’s submissions. On Wednesday, the top court asked whether Parliament could have invoked the Jammu and Kashmir Reorganization. Act during President’s rule in 2018-2019. Which bifurcated the erstwhile state into two Union Territories.
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The apex SC questions had on August 10 said that with the merger of the erstwhile princely state in October 1947. The sovereignty of Jammu and Kashmir was completely ceded to India. And it was “really difficult to say that the constitution granting special status. The erstwhile state” Article 370 was of permanent nature.
Several petitions challenging the provisions of Article 370 and the repeal of the Jammu and Kashmir Reorganization Act. 2019 were referred to a constitutional bench in 2019. The erstwhile state was bifurcated into two Union Territories. Jammu and Kashmir and Ladakh – under the Jammu and Kashmir Reorganization Act, 2019, abrogating the provisions of Article 370.
