Supreme Court Hears Arguments on Article 370 Abrogation: Emphasis on Comprehensive Consultations
In the ongoing Supreme Court hearings regarding the abrogation of Article 370, Senior Advocate Rakesh Dwivedi asserted that the decision to abrogate the article was taken after comprehensive consultations, including with Members of Parliament (MPs) from Jammu and Kashmir. The court is currently examining a series of petitions challenging the scrapping of Article 370.
Thank you for reading this post, don't forget to subscribe!Dwivedi, defending the abrogation, stated,
“The abrogation was not an executive decision and everyone, including Jammu and Kashmir MPs, was taken into confidence.”
He further emphasized,
“The voice of the whole country is heard, including members of parliament of Kashmir who are also represented under the council of ministers.”
Dwivedi’s arguments centered on the legitimacy of the Jammu and Kashmir Constitution, asserting that its validity stems directly from the Indian Constitution, not from the Maharaja of the state. He countered the petitioners’ claims, saying,
“The source of the powers of the J&K Constituent Assembly and the J&K Constitution ‘flows from the crown of [Maharaja] Hari Singh.’”
He added, almost mockingly, that the petitioners had argued there was a bilateralism with the Indian and J&K Constitutions, with
“the two sovereigns talking to each other, whispering to each other and all that.”
Addressing the nature of the President’s powers under Article 370, Dwivedi argued that they were “constituent powers.” He cited the landmark case of Kesavananda Bharati v. State of Kerala (1973), which defined constituent power as
“the power which enables the amendment of the provisions of the Constitution.”
Chief Justice D.Y. Chandrachud added that the nature of a power granted to a body can be defined as “constituent,” irrespective of which body it is vested in.
Dwivedi also touched upon the term “recommendation” under Article 370(3), suggesting that the assent of the constituent assembly was not mandatory to abrogate Article 370. He remarked,
“It is surprising that my friends on the right, wedded to democracy, are seeking permanence based on a crown which is long gone. The King is dead, long live the King.”
Senior Advocate V. Giri, supporting the abrogation, emphasized that the power of making law is reserved with the Union and the State governments. He questioned,
“Why is there an argument to make Article 370 permanent? To confer any rights? Apparently not. Then what for? What is the entrenchment of right that petitioners are really concerned about? Once 370 goes and J&K integration is complete, the insignia of any sovereignty is a law-making power. The law-making power is with the Union and the State.”
The arguments presented in the court remained inconclusive and are set to continue on Monday, September 4, 2023. The court’s decision on this matter will have profound implications for the political and constitutional landscape of Jammu and Kashmir and India at large.
