“Can Article 370 Be Used To Scrap Itself”: Supreme Court’s Big Question

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The Supreme Court today asked the Centre for a “timeframe” to make Jammu and Kashmir a state again.
The bench, headed by Chief Justice DY Chandrachud, while hearing a batch of petitions against the repeal of Article 370 in Jammu and Kashmir, said that the “restoration of democracy” is important.

The top court made the observation after Solicitor General Tushar Mehta – appearing for the Centre, told the bench that the move to bifurcate the state into union territories of J&K and Ladakh was a “temporary measure” and that its statehood will be restored in the future.

The Supreme Court also asked if Article 370 can be used to amend Article 370 itself. “Article 370 can be used to amend other provisions but can it be used to amend Article 370 itself ? That’s the heart of the matter,” the court observed.

The bench sought to know that how the provision could be revoked in the absence of a constituent assembly. “If Article 367 was amended through Article 370 with the concurrence of the state (J&K), the petitioners wouldn’t have challenged its scrapping,” the bench said.

Solicitor General Tushar Mehta said a due process was followed while abrogating the provision. “As there was no council of ministers in Jammu and Kashmir then, the Governor exercised those powers. The President used Article 370 with the concurrence of Governor,” said Mr Mehta.

He said that any change in the Constitution that “brings everyone at par can never be faulted”. “It was the people of the state who were behind integration of the state with Union of India. The removal of some provisions could also be in furtherance of the basic structure of the Constitution – fraternity, equality- it’s a basic structure, it’s a part of brotherhood,” Mr Mehta said.

The petitioners opposing the repeal of Article 370 have been insisting that the provision could not have been abrogated, as the term of the Jammu and Kashmir Constituent Assembly, whose concurrence was required before taking such a step, ended in 1957, after it had drafted the erstwhile state’s Constitution. With the constituent assembly having become extinct, Article 370 acquired a permanent status, they have said.

Countering the agreement, the Centre had earlier contended that there was no “constitutional fraud” in abrogation of the provision. “There was no wrong-doing and there was no constitutional fraud as alleged by the other side. The step was necessary to be taken. Their argument is flawed and inconceivable,” Attorney General R Venkataramanisaid.

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