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.A Bench of Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant is hearing the matter.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 a reference.On August 2, the top court began hearing the matter with a question to the petitioners about whether the Constitution makers and Article 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.During the last hearing, the top court had 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..Bench assembles. Hearing commences..Senior Advocate Kapil Sibal: Please see page 70 of the supplementary submissions.CJI DY Chandrachud: If we allow these (supplementary) submissions, then the other side counsel will also give (supplementary). We are in the midst of deciding of what to do in the same sex marriage case. These submissions now as it happened in that case will open a big problem for us since when we open the case for judgment. There are submissions, resubmissions etc.Justice Sanjay Kishan Kaul: if we allow you to refer to these documents then it will be violation of Article 14. Please advance your arguments orally..CJI: See how Sheikh Abdullah puts it. This claim of being a Muslim state by Pakistan is only a camouflage to hide the fact that in essence it is a feudal state. Sibal: Can you delete provisions of the Constitution by an executive act? Can you decimate the Constitution of India by an executive act? You cannot change constitution as applicable to J&K by changing Article 3. You cannot change legislative assembly to a constituent assembly by an executive act..Justice BR Gavai: Are you saying parliament can do it? Sibal: When you want to severe a relationship which has been entered into, you must seek the opinion of the people. See what happened in Brexit. A referendum was held. CJI: In a constitutional democracy, seeking opinion of the people has to be through established institutions. Any recourse to public will has to be through that. You cannot envisage a situation like BREXIT. In a constitutional democracy, there cannot be anything like a referendum..CJI: The temporary nature of the Article 370 remained because the view of the constituent assembly was not yet taken on board. But can this article after the constituent assembly become unamendable?Sibal: Constitution of India must have a solution to that. CJI: You say power is lost when the J&K constituent assembly came to an end? Justice Khanna: Article 368 gives the power to amend the constitution. We have to see if Article 370(3) gives the right to amend it. CJI: If we accept that Article 368 is used for amending all articles then Article 370 will also be covered. Then the argument that there is no power to amend can (only) be a moral argument but not a legal one..Sibal: This is a political act and not a constitutional act. You wanted to do something and you have done it. I do not think this has happened in any constitutional democracy. Boris Johnson had asked the Queen to prorogue the house. It was done. The UK Supreme court unanimously held that you cannot use executive power to bypass the parliament. You give powers to Governor which he does not have. You invoke all powers under article 356. What kind of exercise of law is that? Then what powers does the president have to pass such an order?.CJI: If they had to abrogate Article 370, why was amendment to Article 367 required at all?Sibal: That is because they changed definitions of Constituent Assembly to legislative assembly.CJI: Suppose we are working under Article 356 and proclamation is there. The president assumes to herself all powers of the State and the powers of legislative assembly is entrusted to the parliament. Then if Article 370(3) is capable of being interpreted that President can abrogate.. Then parliament can take a call.. why amend 367 at all?Sibal: Executive is only administration and they cannot amend the Constitution.CJI: The government exercised the power under Article 370(1)(d) and not under Article 356.. to amend the Constitution. Sibal: It requires the concurrence of Jammu and Kashmir government. This government is the council of ministers. .CJI: But clause d shows that article 370 itself postulates abrogation. Is it not?Senior Advocate Sibal: Then I have nothing to say. I must have gone wrong in my readings or arguments. Interpretation clause cannot be amended. It is an interpretation clause milord. .Sibal: Please see the language of the provisions of Article 370 and it must be seen in the historical context and there cannot be ambiguity read into it when there is none. Second if there is textual ambiguity the court should not be adrift in the sea of pragmatism.The power under Article 3 does not extend in effacing the character of a state into the union territory. Can a state be made into a union territory by the union on its own whims and fancy without consulting the people who would be affected. Let me come to Article 356. We will come to the SR Bommai judgment. .Sibal: People are not taken into account. The views are not taken into account. Parliament becomes spokesperson for the people of Jammu and Kashmir ? The Constitution requires you to take the views of the state. Everything done under Article 356 is against federal and Constitutional democracy and constitutional morality. Where are the steps to restore democracy.. only steps to destroy it..Sibal: On November 21, 2018, the Governor had no power to dissolve the assembly. He knew the council of ministers would not allow and thus he did it on his own. He is not an omnipotent authority but has delegated power..CJI: If you see the Krishna Kumar Singh judgment of seven judges we have held you cannot bring irreversible changes though the mode of an ordinance. Sibal: Yes we have relied on it. Constitution makers attached great importance to the decisions taken by the Constituent assembly. Please see how a Constitution bench of this court had interpreted Article 370..Sibal: As long as the President issues order after consultation and concurrence till then it is fine but not beyond that.Sibal: I will read the Jammu and Kashmir Reorganisation Act a little and then others can take it ahead.Sibal reads the J&K Reorganisation Act.Sibal: Let us read the word state as Union territory. If you use UT in place of State, the legislation makes no sense.CJI: Means separation of territory from any state? Sibal: Yes my argument. How can you create a UT under this. You can carve a UT but it does not allow extinguishment of a state. If you can do it to one you can do it to others and make it presidential form of govt everywhere..CJI: Textually you cannot do it? Sibal: No, you cannot do it.. you have created two UTs from a State. Where is that power. There are multiple categories of what they have done which does not fall under any category.. how is that possible?.Sibal: Where is the representative voice of Jammu and Kashmir. Have we heard them in last four years. You do away with consent by an executive act. You do not take their views. Where do we stand? Though constitution is a political document.. but you cannot maneuver or manipulate its provisions for political end. It is time for this court to intervene. If the voice of people is silenced by such executive acts then what is the future. This is a historic case, not for the present one only but also for the future. I hope the court stands up for it.Kapil Sibal concludes his arguments. .Senior Advocate Gopal Subramanium commences.Subramanium: I will start with the Decision of the constituent assembly of Jammu and Kashmir itself. CJI: Okay you start tomorrow morning Mr. Subramanium..Bench rises for the day.