Petitions against Article 370: May consider referring issue to 7-judge bench later: SC
New Delhi, Dec
12: The Supreme Court Thursday indicated
it may consider the question of referring the issue of challenge to the
abrogation of provisions of Article 370, which gave special status to erstwhile
state of Jammu and Kashmir, to a larger 7-judge bench after hearing the
preliminary submission of all the parties.
The top court’s
remarks came after some of the parties, challenging the Centre’s decision of
abrogating Article 370 of the Constitution, said there were two conflicting
decisions by a 5-judge bench of apex court given in 1959 and 1970.
were abrogated by the Centre on August 5. “We may consider the question of
referring the matter to larger bench only after hearing the preliminary
submission of all the parties,” a five-judge bench headed by Justice N V
hearing, senior advocate Rajeev Dhavan, appearing for some of the parties
against the Centre’s decision, said that court should first hear the parties
who are challenging the abrogation and then hear the counsels seeking reference
to a larger bench. The bench, also comprising Justices Justices Sanjay Kishan
Kaul, R Subhash Reddy, B R Gavai and Surya Kant, said the question of referring
it to 7-judge bench will be considered by it at a later stage after all the
parties complete their preliminary submissions.
Raju Ramachandaran, appearing for bureaucrat-turned-politician Shah Faesal,
Shehla Rashid and other petitioners resumed his arguments and said that in the
scheme of Article 370, while the democratic power is with the State, the
executive power is with the Union government. He said that the constituent power
of Jammu and Kashmir (expressed through its elected government as concurrence
or as a recommendation of the Constituent Assembly) is the central principle
observed in all the cases dealt by the apex court on the issue of Article 370.
since it is the State of J&K that has constituent powers over its own
constitutional framework as well as a role in determining the constitutional
relationship of the State with the Union, it is the State of J&K which can
democratically decide how its constituent powers can be exercised in accordance
with its Constitution,” he added. Replying to yesterday’s question of the
bench, as who could be the competent authority to reconstitute the Jammu and
Kashmir Constituent Assembly to take a call on altering the special status of
the erstwhile state under Article 370, “it is only the State of J&K
that can decide who will be a successor to the Constituent Assembly of the
State, who may wield constituent powers in future”.
said that in the present instance instead of the state of Jammu and Kashmir, it
was the union government acting through the President that decided how the
constituent power of the Constituent Assembly under Article 370(3) would be
exercised – by modifying Article 367(4) in Presidential order. “Therefore,
this act of the President is ultra vires his powers under the self-contained
code that is Article 370. This part of the challenge thus may not be subsumed
under the question of the President’s powers under Article 356,” he said.
Dinesh Dwivedi, appearing for petitioner Prem Shankar Jha, said there are two
conflicting judgements given by the five-judge of the apex court in 1959 in
Prem Nath Kaul versus Jammu and Kashmir and in 1970 in Sampat Prakash versus
Jammu and Kashmir. He sought referring of the matter to the larger 7-judge
bench for a definite findings.
remained inconclusive and would continue on January 21, 2020. On Wednesday, the
top court had raised a query as to who could be the competent authority to
reconstitute the Jammu and Kashmir Constituent Assembly to take a call on
altering the special status of the erstwhile state under Article 370 of the
The top court,
also raised the point that if the decision rested with people then will it be a
case of “referendum, concurrence or consultation”. The petitioners
have referred to the constitutional provision and said that only the
Constituent Assembly, which represents the will of the people, is empowered to
make recommendation to the President on any changes in the special status of
Jammu and Kashmir.
contended that President could have only abrogated provisions of Article 370
only on recommendation of the Constituent assembly, which represented the will
of the people of the state. He had said the two presidential orders issued with
regard to abrogation of Article 370 have completely flouted the tenets of basic
structure of the Constitution of India.
Ramachandaran had argued that the Centre’s decision to abrogate provisions of
Article 370 was “unconstitutional” since people of Jammu and Kashmir
were “bypassed” and any proposal for altering the constitutional
status of the erstwhile state should emanate from the citizens there. A number
of petitions have been filed in the matter including that of private
individuals, lawyers, activists and political parties and they have also
challenged the Jammu and Kashmir Reorganisation Act 2019, which splits J&K
into two union territories — Jammu and Kashmir and Ladakh.