A Constitution bench of the Supreme Court of India is hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution which conferred special status on the erstwhile State of Jammu and Kashmir.

The bench comprises Chief Justice of India DY Chandrachud, and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.

Over 20 petitions are pending before the Supreme Court challenging the Central government's 2019 decision to abrogate Article 370 of the Constitution, which resulted in the revocation of Jammu and Kashmir's special status. The erstwhile State was subsequently bifurcated into two Union Territories.

When the matters were listed in March 2020, a five-judge Constitution Bench of the Supreme Court had decided not to refer the batch of petitions to a seven-judge Constitution Bench, despite some petitioners seeking such a reference.

On August 2, the top court began final hearings in the matter with a question to the petitioners about whether the Constitution makers and Article 370 itself envisaged the provision as a permanent or temporary one.

The Court sought to know whether the Article was envisaged as a permanent provision merely because the Constituent Assembly of Jammu and Kashmir (J&K), which was empowered to recommend the deletion of the provision, ceased to exist in 1957.

On August 4, the top court asked whether the Article would become part of the basic structure of the Constitution if it is accepted that Article 370 of the Constitution became permanent when the Constituent Assembly of Jammu and Kashmir was dissolved in 1957.

The top court, on August 10, remarked that the integration of Jammu and Kashmir with India in 1948 was not conditional. The integration was absolute and complete in every which way, remarked CJI Chandrachud.

On August 24, the Central government began its arguments in Supreme Court defending its 2019 move to abrogate Article 370 of the Constitution.

Solicitor General (SG) Tushar Mehta, who represented the Central government, invoked Pandit Jawaharlal Nehru and stated that the first Prime Minister had said that India would not recognize rulers of princely States who joined India as having any 'divine' rights.

On August 28, the Supreme Court orally observed that Article 35A of the Constitution, which was repealed in 2019, effectively conferred special rights on the people of Jammu and Kashmir and, in the process, curtailed certain fundamental rights of persons domiciled in the rest of India.

During the hearing on August 29, the apex court orally remarked that various parts of the country have been plagued by militancy and separatism including Punjab and north-eastern States and Jammu and Kashmir (J&K) cannot be singled out in that respect.

Live updates from today's hearing here.

Hearing begins.

Respondent lawyers in the Akbar Lone case submits that another additional affidavit is being submitted which shows "more damaging statements have been made".

SG Tushar Mehta: I have seen the statements. please see the three statements. Rest I leave it to the conscience of this court.. We are all citizens of India.. Please see page 6, Para 2. This statement is in Kupwara in a public rally, then it is being made before the presidential proclamation, then see the next statement during the terrorist attack security forces are also killed but sympathies only for terrorist and victims.

Senior Advocate Kapil Sibal: All of this is being televised that is all!

SG: Please read March 19, 2015 statement, then another statement it is very very serious.. it is just not Zindabad.. India is being referred to as a foreign country.. His affidavit must say that he withdraws all these statements.

Sr Adv Gopal Sankaranarayanan: I take strong objection to the fact that. It is said filing a plea here constitutes a separatist agenda. That means we are all arguing for a separatist agenda?

CJI: I think this is unfortunate. Nobody can say filing an Article 32 plea is a separatist agenda. Access to our court ventilating rights within framework of the constitution. We have not heard the Attorney General for India, we have not heard the SG that these petitions should be dismissed that it is a separatist agenda and it will be resolved as a constitutional issue. When individuals come before this court, we know there is anguish and we know as judges how to deal with it.

CJI: Has Mr Lone filed an affidavit?

Sibal: he is reaching by 12 pm.

CJI: Okay.

Sibal: Bilateralism is at the heart of Article 370. There is no silence in constitution regarding this. There had to be recommendation by the council of ministers to the president and not the parliament. No dissolution of assembly can take place without aid and advice of council of ministers and thus dissolution of assembly on November 21 was void and you cannot interpret powers of Governor from other states of India. So if this action is bad the CO 272, 273 has to be struck down.

Sibal: We have to just uphold the constitution on both the sides and this court upholds it, uphold it for the posterity.

Now I come to the argument of impossibility which is not part of any counter, any submission, any affidavit etc but yet we have to deal with it. If there is a constitutional obligation to be performed and it has to be performed then in furtherance to that obligation the principle of impossibility of performing another obligation comes into place.

Sibal: What is the constitutional basis to deny the residents of jammu and kashmir the right to a State? India is after all a union of states. Your lordships are the ultimate arbiter as to how this constitution should look like and how it should be interpreted. I walk out in silence but let the court speak and India listens. It should not be such as to acts are done in a way without consulting the public,without reference to legislature.. the public and we should not forget that people are central to the constitution of India.

Senior Advocate Gopal Subramanium: The instrument of accession did not lead to the complete transfer of sovereignty. The instrument of accession finds a place in 370 and even the constituent assembly finds a place in 370. It was stated that there is no mention of J&K Constitution in the Indian constitution but my point is it is there. Look at the word.. constitution of the state and it is no other constitution but the constitution of J&K. Then there was the State Reorganisation Act.

President is a part of the parliament. Parliament by the very definition includes the president and the two houses and under our Constitution the president can never act without aid and advice. This claim of untramelled power with the president under 370(1) is flawed.

CJI: The constitution of Jammu and Kashmir was not at par or superior to the Indian constitution because the way it operates was mentioned in Indian constitution and not the other one.

Gopal Subramanium: This constitution is also a parchment of pride and it defines them and it defines their persona. They are not saying anything else but only saying that there cannot be the evaporation of the Constitution unless it is done in an manner in accordance with law.

Gopal Subramanium: This is not a normal proviso and Kesavananda Bharathi held that marginal notes do not confer validity on a provision. There was also a suggestion that there is a power coupled with duty to abrogate 370 due to this marginal note//but Article 370 is a self controlled Article.

CJI: I think we have given you enough time in rejoinder now.

Gopal Subramanium: I am galloping.

Senior Advocate Zaffar Shah: There was ocean of autonomy available in 1950.

Justice Khanna: We the people of India includes we the people of J&K as well. We have moved with the passage of time and we need to keep moving. The second part of article 370 is the main constitutional challenge before us.

Hearing to resume at 2 pm.

Hearing resumes.

Senior Advocate Zaffar Shah: Why cannot Union of India accept that there are two constitutions? This is not the only federation where such a thing happens. It is all over the world.

Zaffar Shah: See how better was constitution of Jammu and kashmir compared to Constitution of India. We had section 6 in the Constitution of J&K which states Governor can act only under the aid and advice of the council of ministers.

Shah: give us our self governance back. For the unified nation we have to win over the hearts of the people and if the matter is decided in our favour then we will go a long way in winning the hearts of the people of Jammu and Kashmir.

Rajeev Dhavan: Basic structure is a constitutional limitation. What we recognise is basic structure as a principle. Then comes location of sovereignty and constituent power. Generic basic sovereignty lies with the people.

Dhavan: If democracy had to be preserved as a part of balanced cooperative federalism, there is concurrence and consultation. The other side it was temporary for 60 years. What is left of article 370 is 370(1) because (2) and (3) is depending on the discussion with the constituent assembly.

Dhavan: There is no doctrine of necessity in our Constitution. It is true that centre is not bound by all the recommendations but it does not take away the fact that Article 3 is a mandatory provision. Under the President's rule, you do not have the power to do away with the provision of the Constitution.

Dhavan: Democracy, reasonableness, federalism is given a go by. These words a systematic and structural principles. They give coherence to the Constitution and makes the Constitution a organic whole.

Dhavan: Centre is not able to provide a roadmap for restoration of statehood and submit that time will come when statehood is restored. This is no roadmap at all and is entirely illusory. There is a violation of the multi symmetric constitution as well. Else the whole constitution would become meaningless. Thus basic structure is a statement of principle applying in this case.

Sr Adv Dushyant Dave: In IR Coelho, this Court had expressly stated that there are two powers which are fiercely independent - one is constituent power which is plenary power and the other is derivative of the plenary power. We have a situation where there is constitutional power to be exercised by the President of India. No one is a Imperium in Imperio under the Constitution.

Dave: Power of amendment is always subject to constitutional limitations. Government wants you to read something which I find very difficult to read. The constitution framers were of extraordinary wisdom thus we do not have to travel outside the article to find out their intention.

For 70 years central govt has used Article 370 to pass orders and now they say, the article is temporary and this is because government has changed of a new party (is in power). Article 370 was never intended to be temporary. They wanted Indian constitution to apply but in the sense of 370(1) and 370(2). It is not the case of Government of India that 370 has not worked in the last 70 years or it has failed.

Dave: Can Government of India in the face of the law declared by this court say that the Article has ceased to operate. Why were the constitutional framers so particular about it. Berubari expressly holds that if it is a treaty and if you have to undo it then it is only by way of constitutional amendment.

Dave: Jammu and kashmir people are not foreigners. They are our own people. People have a right to feel that the promise made to them has been kept. If constitutional morality is allowed to be trampled in this fashion then nothing will remain at all.

SG: Mr Sibal was to file an affidavit by Mr Lone. We have not seen it. It must be given. This is in affront to orders of this court..

SG reads the affidavit which says that 'I stick to the oath taken while being sworn in as member of parliament'.

SG: This is adding insult to injury.

CJI: We will analyse it.

CJI DY Chandrachud: Judgment Reserved. We thank all the counsel.

Bench rises.