The hearing on 23 petitions challenging the decision to remove Article 370 from Jammu and Kashmir was held in the Supreme Court on Thursday (August 3) for the second day.
The five judges conducting the hearing include Chief Justice DY Chandrachud, Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Suryakant.
Kapil Sibal, counsel for the petitioners, argued that Article 370 cannot be tampered with. In response to this, Justice Khanna said that section (c) of this article does not say so.
After this Sibal said, ‘I can show you that Article 370 is permanent.’ The next hearing on the matter will now be held on August 8.
Article 370 is being heard in the Supreme Court after 3 years. Earlier, in 2020, a 5-judge constitutional bench heard the matter. Then the court had said that we are transferring the matter to a larger constitutional bench.
What happened in the courtroom on 3rd August?
Sibal- Leave everything, you (central government) cannot present the bill.
CJI DY Chandrachud- As of now consent of J&K is required and only views are needed to introduce the bill for other states.
Justice Suryakant – What is the procedure for passing constitutional orders?
Sibbal – All passed with consent.
Justice Suryakant- But what was the process? Was it passed by the Parliament or by the President?
Sibal- It happened through the notification of the President. After making mutual consent, consultation was taken. This is how it was implemented.
Sibbal- People’s opinion was also to be taken for this.
Sibal- When all the states are united with the union, they (government) did not understand the need to take advice.
Sibal: Then you completely lose the link between the Center and the State. You (the government) hold the powers of the state as the executive as well as the legislature. And you make decisions without reference to any other entity.
Sibbal- … then you give your consent. The people who gave themselves this constitution were kept out of the process. It basically amounts to breaking the constitutional framework.
Sibal – As per the provisions of the Constitution of Jammu and Kashmir (J&K), the legislature did not have the power to recommend abrogation of Article 370.
Sibbal- According to the orders of 1950 and 1954, the Constitution of Jammu and Kashmir made a promise that no law intended to modify the boundaries of Jammu and Kashmir could be passed without the consent of the Government of Jammu and Kashmir.
Justice BR Gavai- Unless the consideration of the entire population of Jammu and Kashmir is taken into consideration, can’t the cancellation be done?
Sibal- I understand that at some stage it has to be done, but then it has to follow the constitutional way of doing it.
CJI Chandrachud- You are saying that there is a provision of the constitution, which is beyond the amendment powers of the constitution. So we are creating a new category apart from the original framework and Article 370 comes under that?
Sibbal- This is not a new category. It is a category that exists.
Justice Kaul- Can you say that there is no system to change it (Article 370) even though everyone wants to change it? Are you trying to say that even if the whole of Kashmir wants to, it cannot be changed?
Sibal- There is no process of amendment or change in Article 370.
