Can Article 370 be considered permanent merely because J&K Constituent Assembly was dissolved in 1957? Supreme Court asks

The hearing in the case challenging abrogation of Article 370 of the Constitution began before a Constitution bench of the Supreme Court on Wednesday with the Court questioning the petitioners about whether the Constitution makers and Article itself envisaged the provision as a permanent or temporary one [In Re Article 370 of the Constitution]..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."No Constituent Assembly can have an indefinite life. So what happens to the proviso," Chief Justice of India (CJI) DY Chandrachud, who was heading the bench, asked petitioner's counsel Kapil Sibal.The CJI was referring to the proviso to clause 3 of Article 370 as per which the recommendation of the Constituent Assembly of Jammu and Kashmir is necessary before Article 370 can be declared to be inoperative by the President of India.The Constituent Assembly of J&K was a body of representatives elected in 1951 to frame the Constitution of Jammu and Kashmir. It was dissolved in 1957."If Article 370 has to be abrogated, you had to get concurrence of the Constituent Assembly... it has served term till constitution was there," Sibal replied."So you say that the article which is transitionary becomes permanent after 1957," the CJI further demanded."So you are saying Article 370 could not be abrogated after 1957," Justice Sanjay Kishan Kaul also weighed in..The Constitution Bench also comprising Justices Sanjiv Khanna, BR Gavai and Surya Kant heard Sibal the whole day before rising for the day.The hearing will resume tomorrow.The matter is being heard nearly four years after the Central government's move that resulted in the revocation of Jammu and Kashmir's special status. The erstwhile State was subsequently bifurcated into two Union Territories.The Union Home Ministry recently filed an affidavit before the Court stating that after the abrogation of Article 370, Jammu and Kashmir has witnessed unprecedented stability and progress, with stone pelting and school closures becoming a thing of the past..Sibal began his arguments today by stating that the case was historic involving the question of whether the Article could have been deleted at a time when the State assembly was under suspension and President's rule was in operation. "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 people of J&K 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 asked.He stressed that the petitioners are not raising any issue with the premise that the integration of Jammu and Kashmir with India in 1948 remains unquestionable."We stand here on the premise that integration of Jammu and Kashmir with India was and will always remain unquestionable. 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."However, he said that the powers of the legislative assembly of a State cannot be taken over by the Central government or parliament. "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 Jammu & Kashmir. Where does parliament get that power? Not under Article 354," Sibal underlined.The discussion between the bench and the Senior Counsel then delved into clause 3 of Article 370, specifically its proviso.Clause 3 reads:"Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification."Since the Constituent Assembly of J&K was dissolved in 1957, the bench asked whether that can be considered as having given Article 370 a permanent status."One is interpretation is clause 3 of article 370. You are saying proviso of clause 3 cannot be resorted to after 1957 and thus clause 3 is redundant," said Justice Khanna."A structure was envisaged by the Constitution of India 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 370(3)," Sibal replied.The CJI then responded saying, "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.""You have to see the case with a historical perspective," said Sibal."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 (your) argument," the CJI said."Constituent Assembly has worked itself out and that is why it is a temporary provision," Sibal said.Justice Kant the remarked,"If clause 3 goes then article 370 could never be abrogated," and Justice Kaul added,"(As per your argument), 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," Justice Kaul said..Justice Kaul then asked whether abrogation is possible if done by an elected legislative assembly, to which Sibal replied in the negative."If an elected assembly wants to do it which represents the will of people even they cannot, that is what you are saying," Justice Kaul elaborated Sibal's argument.The CJI pointed out that Presidential power is untrammeled in terms of defining the subjects applicable to Jammu & Kashmir.Sibal eventually responded saying,"No one can deny that the 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. [However], (in the instant issue of abrogation), the 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'."The line of questioning on clause 3 proviso continued during the post lunch session too."Can we say power under clause 3 goes after Constituent Assembly ceases to exist and then 370 becomes permanent when it was never intended so," the CJI asked. "Because it had to be temporary always (only) till Constituent Assembly was there," Sibal said."Then why was it under part 21 (on special and temporary provisions)," the bench demanded."Suppose the Constituent Assembly decided not to be with India. Then what happens. Then what happened to Junagadh would have followed," Sibal said.Pertinently, he also questioned how the parliament could have converted the State to a Union Territory."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," he argued..Through the course of the hearing, Sibal also took the bench through the instrument of accession, and the relevant portions of the Constituent Assembly Debates.Read live updates from the hearing here..[Follow our live-coverage of today's hearing].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.