Abrogation of Article 370: Supreme Court to resume a batch of petitions for the 9th day today

Today, the Constitution bench of the Supreme Court will resume the hearing, for the 9th day, of a batch of petitions regarding the abrogation of Article 370 of the Constitution of India. The Constitution bench constitutes Chief Justice of India DY Chandrachud, Justice Surya Kant, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Sanjay Kishan Kaul. On August 22, the top Court heard the matter for the 8th time where the bench heard arguments from Senior Advocate (SA) Dinesh Dwivedi, SA Sanjay Parikh, SA C.U. Singh, and SA P.C. Sen. While arguing regarding the matter, various aspects were presented by the Senior Advocates. SA Dwivedi said, “That speaks volumes about the autonomy of the state. Our basic theme is that Kashmir was different. Kashmir was different both in terms of accession to the dominion of India where it ceded at a different time as an independent state or a nation, and it was different in the sense that it didn’t merge, unlike the other states. The conditions added in favor of Kashmir-that we’re not bound by the Constitution or the future constitution, the internal sovereignty rests with the ruler, the Union of India cannot acquire land in Kashmir-these were different.” He also contended that once the Constitution of J&K was enacted in 1957, Article 370 ceased. 

In response to Dwivedi’s argument, CJI Chandrachud said, The net consequence would be that the Constitution of India in its application to J&K would stand frozen as of 1957. Therefore, no further development in the Indian constitution can at all apply to J&K according to you. How can that be accepted?” He further added, If Article 370 ceases to operate and Article 1 continues to operate, then J&K is an integral part of India. Surely, the jurisdiction of every democratically elected institution is not excluded...There has to be then a provision in the Indian constitution that excludes its application to J&K. Article 5 says that the legislative and executive powers of the State would extend to all matters except those with respect to which Parliament has the power to make laws. That means provisions of the constitution of India. That postulates that the Indian constitution does apply to J&K. Unless we accept that Art 370 existed till 2019, there would be no trammel on the jurisdiction of parliament. If we accept your argument, there would be no restraint on the power of parliament.”

After the completion of Dwivedi’s submissions, SA Parikh submitted that “When there is a written constitution, the written constitution becomes supreme.” He also mentioned Article 357 in his arguments stating that the same was never adopted for Jammu & Kashmir. Further, SA Sen submitted that “Our constitution is also anti-majoritarianism,” as well as highlighted the judgments regarding LGBTQ+ and talked about the devolution taking place because of it. He also said, “If one were to do away with this thing which involves historically a religious minority, that would be a regressive step.” The hearing for the 8th day ended with CJI’s remarks to SA Guruswamy stating, “to formulate points on the issue of internal sovereignty on one page and submit to the court.”