[Art 370][Day 4] 'Power To Abrogate Cannot Be Exercised When Constituent Assembly Has Ceased To Exist', Submits Sr Adv Dinesh Dwivedi

The Constitution Bench of the Supreme Court of India comprising Justices N.V. Ramana, Sanjay Kishan Kaul, R. Subhash Reddy, B.R. Gavai and Surya Kant, on Tuesday started hearing the petitions challenging the abrogation of special status of J&K under Article 370 of the Constitution of India and the Jammu and Kashmir Reorganisation Act, 2019.Senior Advocate Dinesh Dwivedi, appearing on behalf of journalist Prem Shankar Jha, requested for reference of the matter to a 7-judge Bench on the ground that contrasting opinions had been delivered by coordinate Benches of the Supreme Court in the cases of Prem Nath Kaul v. The State of Jammu and Kashmir [1959 AIR 749] and Sampat Prakash v. State of Jammu and Kashmir [1970 AIR 1118]. While the reference to a larger Bench was not supported by other Senior Advocates present, including the Attorney-General, the Bench allowed Mr. Dwivedi to continue, who proceeded with the conception of the Constitution of Jammu and Kashmir. He categorically stated that the provisions of the Constitution of India could not be employed to override and repeal the entire Constitution of J&K.Reading out the Constituent Assembly debates, Mr. Dwivedi submitted that the basis of the relationship between the Centre and the State was premised on the existence of Article 370 of the Constitution of India. He also referred to the Proclamation of the Maharaja of the State and enlightened the applicability of the Constitution of India to the State of Jammu and Kashmir. "Article 370 was the only tunnel of light through which the Centre-State relationship could be governed", he submitted."The State becomes a part of the Union only with the help of Article 370. The State was kept apart and could only be governed with: 1. The Instrument of Accession, and 2. Direct consultation with the State." Dwivedi submitted that the framers had also accepted that the State would by and large be independent. Therefore, the special status of the State had been approved by the framers of the Constitution. With regard to the amendment to the Constitution of Jammu and Kashmir, Mr. Dwivedi stated that the "concurrence" of the State was required when it came to implementing policies on subjects that had not been enumerated in the Instrument of Accession (IOA). However, if the policies were in accordance with the terms of the IOA, then mere "consultation" was deemed enough. "The Constitution of J&K holds the power to amend the Constitution of J&K. The Constitution of India does not have that power. There should be functioning along the principle of Live and Let Live."Taking the Bench through the clauses under Article 370, Mr. Dwivedi stated that:"Article 370(1)(d) has to be read with Article 370(1)(c). They could only be applied, earlier with the concurrence of the State Government. However, when the Constituent Assembly came into being, their concurrence had to be taken. Once the Constituent Assembly ceased to exist, the powers under Clauses 2 and 3 became otiose."Justice Kaul - 370 starts with a non-obstante clause. What is the purpose of 370(3) ?DD - The purpose is to state that the provision will cease to operate only with the concurrence of constituent assembly(of J&K).#Article370— Live Law (@LiveLawIndia) January 21, 2020Mr. Dwivedi also read out the statements of the Constituent Assembly debates wherein N. Gopalaswami Ayyangar, in response to Maulana Hasrat Mohani's question regarding why discrimination was taking place, stated that:"The discrimination is due to the special conditions of Kashmir. That particular State is not yet ripe for this kind of integration. It is the hope of everybody here that in due course even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other States. At present, it is not possible to achieve that integration. There are various reasons why this is not possible now."It was also submitted that the legislative power over the State was provided in the IOA: defence, communication and external affairs. "Ancillary entries" were brought in by way of the Government of India Act. The Presidential Order of 1950 came into force om 26.01.1950 and it specified the subjects present in the Indian Constitution which corresponded to the IOA. This allowed for "consultation" on these matters by the President with the representatives of the State. This 1950 Order was superseded by the Presidential Order of 1952. However, Clauses (2) and (3) of Article 370 allow for concurrence of the Constituent Assembly. "The idea is that even before the Constituent Assembly meets, it is in the interest of both the Centre and the State that the subjects are added in the IOA. Does this not indicate that the concurrence was only for the interregnum till the Constituent Assembly came into being? The moment the Constituent Assembly comes in, it will be determined. The provision was temporary because the Constituent Assembly was not present and the functioning could not be...

[Art 370][Day 4] 'Power To Abrogate Cannot Be Exercised When Constituent Assembly Has Ceased To Exist', Submits Sr Adv Dinesh Dwivedi

Radhika Roy

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