The Supreme CourtThursday indicated it may consider the question of referring the issue ofchallenge to the abrogation of Article 370 to a larger 7-judge bench afterhearing the preliminary submission of all the parties.
The top court’sremarks came after some of the parties, challenging the Centre’s decision ofabrogating Article 370 of the Constitution, said there were two conflictingdecisions by 5-judge benches of apex court given in 1959 and 1970.
Article 370 wasabrogated by the Centre on August 5.
“We may consider thequestion of referring the matter to larger bench only after hearing thepreliminary submission of all the parties,” a five-judge bench headed byJustice N V Ramana said.
During the hearing,senior advocate Rajeev Dhavan, appearing for some of the parties against theCentre’s decision, said that court should first hear the parties who arechallenging the abrogation and then hear the counsels seeking reference to alarger bench.
The bench alsocomprises Justices Justices Sanjay Kishan Kaul, R Subhash Reddy, B R Gavai andSurya Kant.
Senior advocate RajuRamachandaran, appearing for bureaucrat-turned-politician Shah Faesal, ShehlaRashid and other petitioners resumed his arguments and said that in the schemeof Article 370, while the democratic power is with the State, the executivepower is with the Union government.
He said that theconstituent power of Jammu and Kashmir (expressed through its electedgovernment as concurrence or as a recommendation of the Constituent Assembly)is the central principle observed in all the cases dealt by the apex court onthe issue of Article 370.
“Therefore, since itis the State of J&K that has constituent powers over its own constitutionalframework as well as a role in determining the constitutional relationship ofthe State with the Union, it is the State of J&K which can democraticallydecide how its constituent powers can be exercised in accordance with itsConstitution,” he added.
Replying toyesterday’s question of the bench, as who could be the competent authority toreconstitute the Jammu and Kashmir Constituent Assembly to take a call onaltering the special status of the erstwhile State under Article 370, RajuRamachandaran said, “It is only the State of J&K that can decide who willbe a successor to the Constituent Assembly of the State, who may wieldconstituent powers in future”.
Ramachandaran saidthat in the present instance instead of the State of Jammu and Kashmir, it wasthe Union government acting through the President that decided how theconstituent power of the Constituent Assembly under Article 370(3) would beexercised – by modifying Article 367(4) in Presidential order.
“Therefore, this actof the President is ultra vires his powers under the self-contained code thatis Article 370. This part of the challenge thus may not be subsumed under thequestion of the President’s powers under Article 356,” he said.
Senior advocateDinesh Dwivedi, appearing for petitioner Prem Shankar Jha, said there are twoconflicting judgements given by the five-judge bench of the apex court in 1959in Prem Nath Kaul versus Jammu and Kashmir and in 1970 in Sampat Prakash versusJammu and Kashmir.
He sought referringof the matter to the larger 7-judge bench for definite findings.
The hearing remainedinconclusive and would continue on January 21, 2020.
On Wednesday, thetop court had raised a query as to who could be the competent authority toreconstitute the Jammu and Kashmir Constituent Assembly to take a call onaltering the special status of the erstwhile State under Article 370 of theConstitution.
The top court, alsoraised the point that if the decision rested with people then will it be a caseof “referendum, concurrence or consultation”.
The petitioners havereferred to the constitutional provision and said that only the ConstituentAssembly, which represents the will of the people, is empowered to makerecommendation to the President on any changes in the special status of Jammuand Kashmir.
Ramachandaran hadcontended that President could have only abrogated provisions of Article 370only on recommendation of the Constituent assembly, which represented the willof the people of the state.
He had said the twopresidential orders issued with regard to abrogation of Article 370 havecompletely flouted the tenets of basic structure of the Constitution of India.
Earlier,Ramachandaran had argued that the Centre’s decision to abrogate provisions ofArticle 370 was “unconstitutional” since people of Jammu and Kashmir were”bypassed” and any proposal for altering the constitutional status of theerstwhile state should emanate from the citizens there.
A number ofpetitions have been filed in the matter including that of private individuals,lawyers, activists and political parties and they have also challenged theJammu and Kashmir Reorganisation Act 2019, which splits J&K into two unionterritories — Jammu & Kashmir and Ladakh.