New Delhi: In the ongoing hearing in the Article 370 abrogation case, the Supreme Court on Monday sought an answer from the Centre on two issues raised by petitioners’ counsel: Isn’t it downgrading converting the erstwhile state of Jammu and Kashmir into a union territory and Article 356 (President’s rule) can only be extended for a period of three years, hasn’t that exceeded?
A five-judge constitution bench headed by Chief Justice of India D Y Chandrachud and comprising justices S K Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant, is hearing a batch of pleas challenging the abrogation of Article 370, which bestowed special status on the erstwhile state of Jammu and Kashmir.
Justice Khanna asked two questions to Solicitor General Tushar Mehta, representing the Centre: “Converting J&K into a union territory, what is being argued by the other side is….it is downgrading. Number 2, in Article 356 the maximum tenure as prescribed is 3 years. We have crossed those 3 years...” Mehta replied, “I will answer….as per 2019, we are not….we in a different regime”. Mehta also referred to Home Minister Amit Shah’s statement in the Lok Sabha that the Centre will grant full statehood to J&K at an appropriate time and that petitioners’ arguments are not correct claiming that representation in Parliament is gone.
Justice Khanna said, “As a union territory 356 part will not apply, but if it was not a union territory then that has crossed…..”. Mehta said it would have crossed by now but for the intervention of August 5 and August 6, 2019. Earlier during the day, the Chief Justice, referring to a note submitted by Centre, observed that saying that the constituent assembly of J&K was a legislative assembly and not a constituent assembly may be a problem. The bench cited Article 370(2), which refers to it as a constituent assembly of the taste.
Mehta contended before the bench that whenever the President’s Rule is imposed, the Parliament exercises the role of the state legislature under Article 356(1)(b) in all states. Mehta said he will also point out how the J&K constitution was subordinate to the Indian Constitution and J&K Constitution had to be repealed, it cannot co-exist with the Indian Constitution.
Mehta said once the entire Constitution is applied, you cannot have a situation where there is a separate document of governance operating. Mehta contended that no petitions have been filed challenging the dissolution of Article 370 or the Governor’s Rule or the President’s rule. Mehta, referring to the statements of the Parliamentarians, submitted that Article 370 was intended to be a ‘temporary provision’ and could be removed at any time. The Chief Justice said statements are individual views, and they are not expressions by the Parliament as a collective body.
Mehta said the preamble of the Constitution was made applicable to J&K but without the words “socialist” and “secular”. The bench said that Mehta is appearing for the Indian government, who did this and that in constitutional theory, the government of India is a perpetual entity. The hearing in the matter will continue tomorrow.
Also read: Article 35A virtually took away fundamental rights: SC during Article 370 hearing
