New Delhi, September 2nd, 2023 – On the 14th day of hearings regarding the challenges to the abrogation of Article 370, the Supreme Court received arguments emphasizing that the decision to revoke this constitutional provision was not solely an executive decision but had the endorsement of the Indian Parliament.
Senior advocate Rakesh Dwivedi, representing intervenor Ashwini Upadhyay, asserted that the term ‘recommendation’ in Article 370 suggested that the consent of the Constituent Assembly of Jammu and Kashmir was not a prerequisite for its revocation. He maintained that the entire Parliament, inclusive of Members of Parliament from Jammu and Kashmir, had been consulted and had given their approval for the action.
Dwivedi highlighted the distinct limitations of the Constituent Assembly of Jammu and Kashmir during the formulation of its constitution, in contrast to the Constituent Assembly of India. He underscored that the Jammu and Kashmir Constituent Assembly operated within certain constraints, including adherence to the Indian Constitution and the foundational principles of justice, liberty, and fraternity, along with Article 1, defining the territorial boundaries of India.
Moreover, Dwivedi argued that Article 370 had always been designed as a temporary measure, citing speeches by prominent figures such as Dr. BR Ambedkar, N.G. Ayyangar, Jawaharlal Nehru, and Gulzarilal Nanda, which indicated that the ultimate objective was the complete integration of Jammu and Kashmir with the rest of the Indian states.
He further contended that Article 370 was explicitly delineated in the Indian Constitution as a temporary and transitional provision. Although the Jammu and Kashmir Constituent Assembly was disbanded after formulating its constitution, Article 370 was not declared permanent, and the authority to repeal it remained with the President of India, advised by the Council of Ministers accountable to Parliament.
Senior advocate V. Giri, representing the intervenor ‘All India Kashmiri Samaj,’ concurred, asserting that Article 370 was originally intended to be temporary, and its cessation relied on a Presidential Order.
“The cessation of Article 370 has consistently been seen as contingent on a Presidential Order. Once Article 370 is abrogated, all constitutional provisions, including those related to legislative power, executive authority, the separation of powers among state organs, and the federal structure, automatically apply,” he explained.
The hearings are scheduled to resume on September 4th.
