Day 1 of SC hearing in Article 370 case concludes: 'No constituent assembly can have an indefinite life', CJI remarks

The Supreme Court Wednesday began hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution that bestowed special status on the erstwhile state of Jammu and Kashmir. Read on what transpired during the first day of the hearing.

New Delhi: The Supreme Court on Wednesday began hearing the petitions challenging the 2019 abrogation of Article 370 which stripped the erstwhile State of Jammu and Kashmir of its special status. The Constitution Bench hearing the batch of the petitions comprises CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant.

While the hearing for the Day 1 has concluded, here are the major arguments and remarks made on Wednesday:

• Senior Advocate Kapil Sibal, who is representing the petitioners challenging the abrogation, told the bench that abrogating Article 370 was a political decision. "You want to abrogate 370, abrogate it. You want to integrate in India completely, say it. But that's a political act. That political act cannot be exercised by parliament, a legislative body."
• "Because that legislative body is controlled by the Constitution. It can't go beyond that. The concept of a constituent assembly is a political exercise. That political authority, that political body can decide the future of the state," Sibal told the court.
• Sibal: "So you move away from representative democracy, convert it into a Union Territory under your direct rule, and 5 years have passed! Everyday we hear there will soon be elections. There has to be a constitutional basis for doing this."
• Justice Kant remarked: You can carve out a Union Territory out of a state. To it, Sibal said: You can carve out but you can't have all of Madhya Pradesh become a Union Territory one fine day. That is unthinkable! Under J&K there was a special provision for this. You can change the boundary of a state, you can bifurcate boundaries of a large state to make smaller states. But never in the history of this country has a state been converted into a Union Territory.
• Sibal said that Article 3 says they can change the boundaries- they didn't change boundaries in this case but they changed it to Union Territory. "Nobody can deny that people of J&K are an integral part of India. But there is a special relationship - there is a unique relationship drafted in 370 itself. You can't jettison that except by following a process ordained by law," he said.
• The Supreme Court asks Sibal who is representing the petitioners challenging the abrogation that is it possible for an elected assembly to abrogate Article 370. To it, Sibal stressed that Article 370 was tossed out of the window through a political act and not through a constitutional procedure and even an elected assembly could not have abrogated it.
• At this juncture, the Chief Justice said that this argument only stands, if it is accepted that Article 370 becomes permanent after the constituent assembly ceases to exist. The Chief Justice further queried, can a Parliament of the state to which it has agreed to merge into have limited powers in the state?
• The bench queried Sibal, "So you are saying that after 1957, Article 370 could not be abrogated? And even after the completion of the constituent assembly tenure, clause 3 of Article 370 will continue to operate."
• The bench further asked him what happens after constituent assembly lapses, as it was supposed to be functional only from 1950 to 1957. The Chief Justice said, “No constituent assembly can have an indefinite life…”
• Senior advocate Kapil Sibal said he doesn't want to wade into politics while arguing for the petitioners challenging Article 370 in the Supreme Court. "I don't want to enter into politics here. The moment I say somebody's name, the other side will say... Nehru has got nothing to do with this. I don't want to enter into politics here. I don't want fireworks on a solemn occasion like this," Sibal said while discussing the circumstances leading to the accession.
• Chandrachud interrupts and says, "Actually the resolution passed by the Constituent Assembly initially contemplated that residuary power would be with the State. It was between the time that the resolution and the eventual adoption of the constitution that the residuary power came to Centre."
• Sibal says there is a schedule with this accession. "The residuary power unlike states in India was vested in the State. It was quintessentially a truly federal marriage so to say."
• Sibal read out to the court the contents of Maharaja Hari Singh's letter to Lord Mountbatten on the event of Pakistan's invasion on J&K in 1947 and a copy of the same was attached in the annexures.
• Sibal now refers to the Instrument of Accession. There are very interesting snippets as to why this happened... It's obvious. 15th August was independence. He didn't accede. All other Maharajas did but he never wanted to. It's only in October this happened, Sibal adds.
• The Court had said a five-judge constitution bench headed by Chief Justice DY Chandrachud will conduct day-to-day hearings from Wednesday. Several petitions challenging the abrogation of the provisions of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which split the erstwhile state into two union territories -- Jammu and Kashmir, and Ladakh -- were referred to a Constitution bench in 2019.
• Sibal who began the arguments leading the petitioners challenging the abrogation said he will continue his submissions till Thursday.
• Chief Justice Chandrachud who was presiding the Constitution bench said the court will allow the lead counsel from the petitioner's side to argue on all aspects and rest of the counsel can add on certain aspects, so that there are no overlapping arguments.
• The bench had earlier said the hearing in the matter will be conducted on a day-to-day basis except on Mondays and Fridays, which are days for hearing miscellaneous matters in the apex court. Only fresh petitions are taken up on these days for admission hearing and regular matters are not heard.
• The top court had made it clear that the Centre's affidavit with regard to the conditions prevailing in Jammu and Kashmir after the Aug. 5, 2019 notification repealing Article 370 will have no bearing on the constitutional issue to be adjudicated by the five-judge bench.