[Live Updates] SC Hearing On Article 370 & JK Reorganization

Dwivedi : Art. 368 is a parallel power which also does not touch upon 370.

Dwivedi : Constitution of J&K is an independent creature. We believe that it is a living document. If that does not impose any restrictions on the power of amending J&K Constitution, then how can Art. 370 be used to do that ?

With reference to Damnoo case, Dwivedi submits that the GoI and the President realised that the concurrence of the Constituent Assembly was required to make any changes.

Dwivedi : 370 does not control the amending power of the Constitution of J&K. The provision might be there, I have no objection to it being there like an ornament, but the question is whether it can be used ? Does it have any relevance ?

Dwivedi now referring to 1972 judgement. Constitution Bench (1972 1 SCC 532) - Maqbool Damnoo v. State of J&K.

Dwivedi : The Prem Nath Kaul judgement showcases the object of the framers of the Constitution, and these were the wisest of men.

Now, the judgement in Prem Nath Kaul case (AIR 1959 SC 749) is being referred to. Submission is that the power itself is not available under 370.

Dwivedi : Legislative Assembly cannot be successor of Constituent Assembly. Your Lordships may take this as my alternative argument.

Dwivedi - The logic is that since 370 has not been abolished, it continues. This is something which will have to be seen in the context of the will of the framers. Once the Constituent Assembly ceases, these clauses do become otiose.

Justice Kaul. - There’s no difficult in appreciating the argument, others have also made this. You’re saying that 370 has obliterated, disappeared, tell me about this.

Dwivedi - There are two ways to look at this.

J Kaul. - Show me the other way.