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 July 11 this year, two petitioners, Shah Faesal and Shehla Rashid sought permission to withdraw their pleas and the request was allowed by the Court.The bench on that day also decided to devote all Tuesdays, Wednesdays and Thursdays to the case till the hearing is complete.Live updates from the hearing today..The Constitution bench assembles,.CJI DY Chandrachud: We will give prominent hearing to the first counsel and then hear others on the basis of newer grounds Senior Adv Kapil Sibal to start today CJI: Mr. Sibal please wrap up by tomorrow lunch.Sibal: It may be difficult since historical context has to be heard... but I will try CJI: Of course our conscience also has to be satisfied.Justice SK Kaul: Let us not be mired in history only. There are legal propositions also..Justice Kaul: Last time we had heard the case for four to five days and we have notes from that time. It was argued for about 90 percent.CJI: Let Mr. Sibal open. We will have a good idea by end of the day. Adv Manohar Lal Sharma: Let me say something to the Honourable court. Senir Advocate CU Singh: Can Justice Bose's court hear mentions? There is something urgent.CJI: There is a SOP. When mentioning is not there, just email to the registrar and registrar listing will inform me. All mentioning requests received till last night was considered and all dates granted.Singh: Something very dire. We will email right away..CJI: Mr Sharma we are not calling this case with a petitioner name. We are calling it 'In Re: Article 370'. Sharma: I filed the first petition. Please let me argue at the end.CJI: Of course. Justice Kaul: yes yes you will be the last batsman..Senior Advocate Kapil Sibal begins arguments on behalf of Akbar Lone: This is a historical moment in many ways. This Court will be analysing why history was tossed out on August 6, 2019 and whether procedure adopted by parliament was consistent with what democracy stands for. Whether the will of J&K people can be silenced. It is historic because it has taken 5 years for this court to hear this case and for 5 years there has been no representative government there. This article which sought to restore democracy... it has been decimated and can that be done?.Sibal: Whether the Governor of a State could have on June 28, 2018 decided to keep the assembly under suspension without even trying to find out a govt could be formed. Whether in 2018 dissolution of assembly could have taken place on June 21, 2018 before using Article 356. These issues were never raised or decided and that is why this is a historic hearing. .CJI: Like the Maharashtra case. The live transcript will be there for this case. It will be available by the end of the day.Kapil Sibal: We wish to make a statement. We stand here on the premise that integration of Jammu and Kashmir with India was and will always remain unquestionable. .Sibal: There were orders passed every now and then applying the Constitution of India to Jammu and Kashmir. All laws were applicable apart from Article 370. There was no reason to take away this right.Sibal begins reading the list of dates commencing from March 9, 1846. .Sibal: On September 7,1939, Jammu and Kashmir Constitution Act was promulgated. Sibal continues reading list of dates..Sibal: In this hearing, the court has to determine what Constituent Assembly stands for. It stands for enacting the territories of the future... what kind of state the people wants and keeping their aspirations in mind.. Exercise of constituent assembly is a political exercise and once constitution comes into force, all institutions are governed by the Constitution and those institutions are limited in the exercise their powers since they have to exercise it in accordance with constitution and parliament cannot convert itself into a constituent assembly. Today Indian parliament cannot say by a resolution that they are constituent assembly since they are caged by the provisions of the Constitution. Executive cannot act against the law. If this proposition is accepted, then it has enormous ramifications for the future of my country and that is the core issue to be decided in this case. Here parliament converted itself and declared legislature of J&K. Where does parliament get that power? Not under Article 354!.Sibal: On October 26, 1947 the Ruler of Jammu and Kashmir, Maharaja Hari Singh, made an offer of accession to India, asking for help from the Indian Dominion to meet a grave emergency, caused by "the mass infiltration of tribesmen drawn from the distant area of North-West Frontier coming regularly in motor trucks Mansehra-Muzzafarabad road and fully armed with up-to-date weapons [which] cannot possibly be done without the knowledge of the Provincial Government of the North-West Frontier Province and the Government of Pakistan..Sibal: At that time, Sheikh Abdullah was in prison. He was against the despotic ruler and he was against him. But he realised that unless he is on their side he cannot act on his cause... [Junior to Sibal murmurs] Sibal to his Junior: No, I do not want to take any names else the other side will be like 'why Nehru' etc. I don't want any politics in this case.. no fireworks in this solemn occasion..Sibal reads from the original instrument of accession..Sibal reads schedule to the instrument of accession..CJI: Did the subjects correspond to some of the specific entries in the Govt of India Act?Sibal: It was applicable to the ones residing in the State, who came from Pakistan.CJI: Subjects whom instrument of accession covers must cover subjects in the Government of India act.. like defence etc? Sibal: I will find out which part of Government of India Act covers it.Sibal reads the Maharaja's Proclamation on March 5, 1948 appointing a popular interim government..Sibal: No revised instrument of accession was signed by the ruler of Jammu and Kashmir.Sibal continues reading the list of dates. Now when the Constitution of India was adopted. Please read this it is of significance.. it was on Republic Day: Sibal.Justice Sanjiv Khanna: This was by an administrative order.. also the schedule to the Instrument of Accession was far more restrictive.Sibal: yes under Article 370. Government of the day accepted the fact that our relation with Jammu and kashmir government was on a separate footing and that residuary power will rest in the State and repugnancy does not arise and that is how Article 370 came into being and it continued. .CJI: What happened to currency. It is governed by entry 36 of list 1. Sibal: Currency was Indian. In 1954, there was another adaptation order.CJI: Were the subjects broadened by subsequent adaptation orders. Sibal: Yes milord. State said that they are integrated into India and Constitution of J&K says they are integral part of India..Sibal: Suddenly in parliament it was said that it was being done at 11'o clock and decided to do it one fine morning without consultation and tossed it (Article 370) out.No one disputed that J&K is a part of India. There was this understanding between Government of India and the State of J&K that there will be a constituent assembly which will decide what happens to Article 370 and that is why it was called a temporary provision..Sibal: Before Article 370 could be effaced, the concurrence of constituent assembly was needed.CJI: But after the end of 7 years, when constituent assembly lapses then what happens?Sibal: From 1950 to 1957, only the constituent assembly could decide.CJI: No constituent assembly can have an indefinite life. So what happens to the proviso?Sibal: Yes it cannot exist after constitution comes into force.CJI: Notwithstanding the fact that proviso ceases to operate by virtue of the fact that constituent assembly lapsed, part 3 continues to operate, is it not? Sibal: If Article 370 has to be abrogated you had to get concurrence of the constituent assembly. It has served term till constitution was there. CJI: So you say that the article which is transitionary becomes permanent after 1957. Justice SK Kaul: You are saying Article 370 could not be abrogated after 1957. Justice Sanjiv Khanna: One is interpretation is clause 3 of article 370.. you are saying proviso cannot be resorted to after 1957 and thus clause 3 is redundant. Sibal: See the constituent assembly debates it will become clearer.CJI: So clause 3 becomes a constitutional article after 7 years. How can this be? Clause 3 continues to operative. Clause 3 contains a non obstante clause which overrides clause 1 as well.. Article 370 (3) has the non obstante clause.Sibal: A structure was envisaged by the constitution in 1950 but why was constituent assembly mentioned when it was not in place. They could have said Jammu and Kashmir government. Why did they write constituent assembly in Article 370(3). CJI: Acceptance of sovereignty of dominion of India was complete. It was not for limited purpose and acceptance was complete and some rights were reserved over some legislative subjects. So acceptance of sovereignty was complete..Sibal: you have to see the case with a historical perspective. CJI: So once the period stipulated in clause 3 came to an end.. the power under clause 3 itself came to an end.. that is the argument.Sibal: constituent assembly has worked itself out and that is why it is a temporary provision. Justice Khanna: If one looks at article 370(1)(b)..and then in clause 2.. it deals with the situation when government or elected assembly is not in existence. So proviso to clause 3 will only be applicable till elected assembly is in place.. that appears to be the broad outline of this. Justice Surya Kant: If clause 3 goes then Article 370 could never be abrogated... Justice SK Kaul: Temporary nature of Article 370 is correlated to the term of the constituent assembly and it becomes permanent after the constituent assembly ceases to exist..Sibal: That is why I said formation of constituent assembly is a political exercise.. it is not a law making exercise. Look at Europe and making of nation states in Europe. There was large empires like Austria and Hungaria. It was break up of the empire which led to the formation of the nation state. In India the process was opposite. There was disparity and there was 562 princely states and there were states with British crown and all had to be amalgamated. J&K was an exception. You cannot jettison the people of J&K and decide and then what is the difference between this and the act of crown or annexation of Junagadh or Hyderabad. If you have agreed to a process which two sovereign authorities have accepted then must follow it or else it is the use of paramount power..Sibal: Aspirations and desire of people whatever it may be has to be respected.Justice Kaul: If an elected assembly wants to abrogate Article 370, then also it is not possible? Sibal: No..CJI: But that is only on the basis that Article 370 becomes permanent after constituent assembly ceases to exist. But if the hypothesis is not accepted, then only way is to assert that a pre-independence agreement has to be enforced. Now can parliament of the state to which it has agreed to merge into have limited powers in the State. Sibal: It was unconditional milord. This power was used under Article 356 and how can this article be used..Justice Kaul: if an elected assembly wants to do it which represents the will of people even they cannot.. that is what you are saying.Justice Khanna: To say that proviso to clause 3 of Article 370 will cease to operate after the constituent assembly ceases to exist..CJI: We are looking at Article 370.. look at clauses b, c and d.Clause b refers to power of parliament to make laws for the state... those matters governed under union and concurrent list and referred to instrument of accession those have to be specified by the president in consultation with the states.Clause b(ii) refers to such other matters in said list where state concurrence is needed..Now in clause c, it refers to substantive article 1 of the constitution of India and clause d refers to other provisions of the constitution which may be applicable under the orders of the President. Clause d refers to other provisions. Look at proviso to clause d..CJI: The whole area of concurrence and consultation is confined to matters in union and concurrent list. Presidential power is untrammelled to define which subjects are applicable to the Jammu and Kashmir. Sibal: President only orders. CJI: Clause d refers to order by president making subjects applicable to the State of J&K..Supreme Court to resume hearing..CJI: Suppose in the area of union or concurrent something is not covered by subjects under instruments of accession. State legislature is operating on State list.Sibal: And the residuary powers. CJI: But is this part of the instrument of accession? Sibal: I will show how residuary part was with the State government throughout. Justice Khanna: for the time being leave the proviso. Sibal: I cannot read the constitution in this fashion. I cannot read an act also like this. Proviso is staring at us. Proviso has been interpreted since 1950s CJI: Proviso at times can be an exception and at times it can be an elaboration. Constituent assembly is not a permanent body and it has a purpose and after it is done then it becomes functus officio. And once that is done then proviso becomes redundant. Transitional means something which necessarily has a terminus. Another is temporary provisions and the third is special..CJI: Can we say power under clause 3 goes after constituent assembly ceases to exist and then Article 370 becomes permanent when it was never intended so.Sibal: Because it had to be temporary always till constituent assembly was there. CJI: Then why was it under part 21? Sibal: Suppose constituent assembly decided not to be with India, then what happens. Then what happened to Junagadh would have followed..Sibal: The residuary power was always with the State.CJI: Please show the constituent assembly debates... to throw light on the provision. Sibal: Right away..Sibal reads the statement of N Gopalaswami Ayyangar from the Constituent Assembly Debates..Sibal: This clearly gives an indication why it was temporary. There was nothing in place and the will of the people had to be taken into account.We in the hindsight sitting in 2023 cannot interpret a provision except on its terms. we cannot legitimise a process which is in violation of the express terms of the Constitution. No one can deny that people of Jammu and Kashmir are the people of India. But we have a special relationship which is unique and cannot be jettisoned unless of course such a process is followed..Sibal: Parliament took upon the constitutional responsibility saying 'we are the legislature, we are the constituent assembly and we exercise the will of J&K people and now we will abrogate Article 370'..Sibal: Not only boundaries were changed, they converted it into a Union Territory. Never in the history of this country has a State been made into an Union Territory. This is unthinkable. You move away from representative democracy and you put under executive control. There has to be a constitutional basis to all this. Tis happened 6 months after parliamentary elections.Sibal: A political act cannot be exercised by the parliament. They had no authority to do this when the constitution had come into force..Bench rises Hearing to resume tomorrow.