Machibet777 Affiliate Article 370 challenge: Can Centre turn a state into a UT?

A five-judge Constitution bench of the Supreme Court has started hearing the case against the central government’s move to make Article 370 inoperative. While cases before the Constitution bench are usually of national importance, the composition of this bench too is special as it comprises five senior-most judges of the top court – headed by the current Chief Justice of India (CJI) and includes three future CJIs.We shall keep you updated on the daily developments in this case before the bench – who argued what and what kind questions/queries did the court put forward. But before we get into the hearing part of it, here is a low down on what the issue is all about.Article 370, as we all know, granted special status to the state of Jammu and Kashmir – as it existed before the central government made the article inoperative on August 5, 2019. While there are a few other articles after Article 370 which grant some kind of special status to a few other states as well, Article 370 stood at the top as it limited the powers of the central government over that state and even allowed J&K to have its own Constitution. medium102446045This special arrangement was due to the accession treaty signed between the then maharaja of the state and the Indian government immediately after the country gained independence from British rule.More than 20 petitions were filed before the court challenging the decision, including those by lawyers and law students in their individual capacity, activists, politicians, former bureaucrats or defence personnel etc.So what exactly is the issue?While the Constitution itself places Article 370 and other sub-clauses under the head “temporary, transitional and special provisions”, clause 3 of Article 370 – which allowed the main article to be made inoperative by a notification by the President – was worded in such a way that it could be done only with the concurrence of J&K “Constituent Assembly” (and not the legislative assembly).The Parliament first passed the Constitution (Application to Jammu & Kashmir) Order, 2019 which superseded the 1954 Constitution (Application to Jammu and Kashmir) Order and declared that all the provisions of the Constitution of India would apply to J&K.This also effectively amended Article 367 of the Constitution by introducing a clause to this article which replaced words “Constituent Assembly of the State” in Article 370 with words “Legislative Assembly of the State”. This amendment introduced another clause to Article 367 which replaced the words “Government of J&K” with “Governor of J&K”.Interestingly, there was no state assembly in place in J&K when all these developments were carried out in Parliament as the state was under President’s rule. Therefore, the recommendation of Parliament was treated as equivalent to the recommendation of the legislative assembly and a Statutory Resolution recommending that Article 370 cease to operate was passed by both the Houses of Parliament on August 5, 2019. This was followed by a notification issued by the President the next day.The state was also bifurcated by Parliament into two Union Territories – Jammu and Kashmir, and Ladakh. medium102446128Day 1 of the hearingThe Constitution bench, comprising CJI DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, has been hearing the matter.On Day 1, senior advocate Kapil Sibal opened his arguments by calling the case “historic in many ways” and stating that the Constitution of India envisaged a “unique relationship” with J&K which could not be discarded abruptly.He also clarified that integration of J&K into India was unquestionable. He also provided a historical context surrounding the Instrument of Accession (IoA) and the constitutional relationship between the Government of India and the state of J&K.He pointed to the circumstances which led to the then J&K maharaja into signing the IoA with India in October 1947. He was facing an armed invasion and political turmoil, leading to the maharaja's realisation that he could not secure his people's safety without acceding to India.Sibal’s argumentsSibal argued that it is a myth that the Constitution of India was not applicable to J&K. He said there were several orders issued over the years that were accepted by the state administration. This, he said, would not have been possible without the state accepting the supremacy of the Indian constitution. He also pointed out that all Indian laws were applicable to the state.As far as making Article 370 inoperative is concerned, he argued that the concurrence of the Constituent Assembly of J&K was required. He said understanding the essence of a Constituent Assembly was pivotal in determining the constitutional future of the region.He said that the Constituent Assembly is a political body made to draft a Constitution, which, beyond being a legal document, is also a political declaration. Once in place, all institutions within the framework of the Constitution were bound by its provisions.He asserted that Parliament, under the current constitutional framework, could not convert itself into a Constituent Assembly. medium102446236Parliament must adhere to the basic features of the Constitution and they can't suspend the fundamental rights of people except in emergencies or external invasions.Article 370 was no longer a temporary provision and it had become permanent after the J&K Constituent Assembly was dissolved in 1957.It was called temporary only because when the Constitution of India came into force, the Constituent Assembly of Jammu and Kashmir did not exist.However, once the Constituent Assembly came into being, created the Constitution for the state, and then ceased to exist after its tenure from 1951 to 1957, the Article became a permanent feature of the Constitution.This was because, as per 370(3), the recommendation of the Constituent Assembly was necessary to revoke Article 370.SC’s questionsCJI Chandrachud raised questions about the continuity of Article 370 after the Constituent Assembly, stating that no constituent assembly can have an indefinite life.Sibal argued that the non-obstante (overriding) clause was only valid during the existence of the Constituent Assembly and said that the Indian Constitution could have mentioned the Government of J&K instead of Constituent Assembly.The CJI, however, said that they (the state of J&K) accepted the sovereignty for all intents and purposes but they reserved some rights over certain legislative subjects.When Sibal stuck to his stand about the Constituent Assembly, Justice Surya Kant asked would that not mean that Article 370 can never be abrogated. Sibal replied in the affirmative.Here Justice Kaul asked that if an elected assembly wanted to abrogate article 370 then also it would not be possible? Sibal said: “Yes, not possible.” medium102446313CJI Chandrachud explained that Part XXI of the Constitution had three expressions – temporary, transitional and special. He stated that the term "transitional" was not used in any headnote or marginal note. However, the terms "temporary" and "special" were used in marginal notes.Sibal submitted that the Constitution makers foresaw the formation of the Constituent Assembly, and it was understood that this assembly would have the authority to determine the future course of Article 370. Any abrogation was intended to be a result of a collaborative process, not a unilateral act by the Indian Parliament.He also contended that all residuary powers, as per the IoA itself, lay with the state government of J&K.He then argued that conversion of the state into a Union Territory was impermissible and said that though Article 3 of the Constitution empowers the government to change boundaries of states and even create smaller states through bifurcation, it had never before been used to convert an entire state into a Union Territory.Justice Surya Kant said that carving out a Union Territory from a state was allowed. However, Sibal argued that converting an entire state into a Union Territory was a unique and unheard-of action in the country's history. He said that this moved the region away from representative democracy and placed it under the direct rule of the central government.