Supreme Court of India
While conducting the Supreme Court hearing of Article 370, court made a really striking statement. The apex court questioned as to how can a temporary provision become permanent. This court hearing was to discuss if the decision of the current government of the annulment of the provision where the state of Jammu and Kashmir is provided with the special status.
Arguments presented in the court of law
The National Conference leader Mohammad Akbar Lone’s attorney Kapil Sibal was asked this question by a panel of the SC’s top five judges, including Chief Justice DY Chandrachud and Justices Sanjay K. Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. Sibal provided a historical overview of the Kashmir issue beginning with the 1846 Lahore treaty. The senior advocate stated, “frankly wanted to remain independent but the maharaja of Kashmir had no choice but to sign the instrument of accession because of armed external aggression supported by Pakistan in October 1947”.
Sibal stated that the Maharaja of Kashmir did not sign a revised instrument of accession like other states giving full control over its affairs to the Union government. He further added that the princely state of Kashmir did not sign the instrument of accession like other states that. It is barring certain exceptions, acceded to India prior to Independence.
“J&K’s relation with India was historically and constitutionally very different from that of other princely states. Article 370 in the Indian Constitution was termed temporary because in 1950, there was no Constituent Assembly of J&K, which was set up later. It concluded framing the state constitution in 1957. The state constitution agreed for integration with India but with a special status,” he said.
The decision was “unconstitutional” argued Sibal
“J&K is an integral part of India, but there is a special relationship between India and the people of J&K through Article 370. It cannot be scrapped by an executive order. The government cannot exercise the will of the people of J&K through Parliament to abrogate Article 370. They assumed the roles of the people of J&K and the Constituent Assembly of the state while abrogating it? Is it constitutionally possible? Is it not an exercise of political power without reference to Article 370 mechanism? Not only was the decision unconstitutional, they arbitrarily, illegally and unprecedentedly converted a state into a UT and that too without the consent of the state legislature,” Sibal argued.
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Supreme Court hearing of article 370…
It triggered a volley of questions from each of the five judges. The CJI asked, “What happens when the Constituent Assembly’s life came to an end (in 1957)? Proviso to Article 370(3) says the President can by an order say the article ceases to be in operation. Now, the only safeguard is, before the President does so, the recommendation of the Constituent Assembly is to be taken.”
He further said, “What happens at a point in time when the Constituent Assembly of the state ceases to exist? According to you, after 1957, Article 370 cannot be abrogated at all. If your argument is right, Article 370, which is a temporary provision, assumes permanent character by virtue of the fact that there is no Constituent Assembly in the state after 1957.”
Justice Kaul responded to Sibal’s claim that Article 370 could not be repealed without approval from the Constituent Assembly, which ceased to exist in 1957. He asked, “What you are arguing is that even if the people of J&K wish for abrogation of Article 370, it can’t be done as the Constituent Assembly has ceased to exist. Try to understand the consequences.”
The CJI said, “The acceptance of the sovereignty of Dominion of India by J&K was complete in 1947. It did not say in the instrument of accession that ‘we accept the sovereignty of the Union of India for a limited purpose’. It was for all purposes and the acceptance of sovereignty was complete. But they reserved certain rights to themselves over certain legislative subjects. In that sense, the accession and acceptance of sovereignty was complete.”
