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Synopsis

Senior Advocate Rakesh Dwivedi argued before the Supreme Court today against the petitions challenging scrapping of Article 370 of the Constitution and elaborated on the intention of the Constitution framers was to never allow the sovereignty of India to be compromised, so far as the Jammu and Kashmir constituent assembly was concerned.

Before a Constitution bench led by CJI DY Chandrachud, the Senior Advocate stated that,

"Entire Jammu and Kashmir Constituent assembly (JKCA) is a reflection of the framework of the constitution. Throughout, it follows the diktats of the constitution of India".

The senior lawyer further pointed out that while framing of the Constitution, the Jammu and Kashmir Constituent Assembly did not enjoy the freedom that Constituent Assembly of India had. 

"It was bound by several things First, in framing of the Constitution, the sovereign democratic republic of India was not to be adversely impacted. The Constitution of J&K could not detract from basic structure, even if it came later," Dwivedi pointed out.

Furthering the concept of what the intention of the constitution framers was, he stated that for this purpose, the methodology which had been adopted was very akin to juristic concept of devolution of powers – and that the constitution had devolved powers upon the JKCA.

He contested the claim of the petitioners that the sovereignty claimed by the petitioners basis crown of Harisingh was flawed and in fact, very potent. He argued that the idea that part sovereignty still existed basis this and there was some form of remnant sovereignty, was a potent and dangerous idea.

At the end of his arguments, he took the bench through a list of documents to justify that the minute the accession was finalised, J&K became an integral part of India. He said,

"It is surprising that my friends on the right, wedded to democracy, are seeking permanence based on a crown which is long gone. The king is dead, long live the king."

On August 5th, Article 370 of the Constitution was abrogated by the Central Government vide a Presidential Order which revoked the "special status" of Jammu & Kashmir. 

The President issued The Constitution (Application to Jammu And Kashmir) Order, 2019 CO 272 replacing the words ‘Constituent Assembly’ from Article 370(3) with ‘Legislative Assembly [of Jammu & Kashmir]’. A Statutory Resolution was introduced by Amit Shah in the Rajya Sabha which abrogated Article 370 as the state of under president's rule. Finally, on the next day, the Parliament passed the Jammu and Kashmir Reorganisation Bill, 2019  bifurcating the State into two Union Territories -Jammu & Kashmir and Ladakh. 

A saga of petitions were filed challenging this move by the Centre, after which it was first taken up on August 28, 2019 by a bench led by former CJI Ranjan Gogoi, who referred the case to a five-judge bench. A five judge bench led by former CJI NV Ramana referred it to a Constitution bench on October 1, 2019. 

The court is hearing the case vide a Constitution bench of CJI DY Chandrachud, Justices SK Kaul, Sanjiv Khanna, BR Gavai and Surya Kant since July 11, 2023.

Hearings  Day 1 | Day 2 | Day 3 | Day 4 | Day 5| Day 6 | Day 7 | Day 8 | Day 9 | Day 10 | Day 11 | Day 12 | Day 13

Case Title: IN Re: ARTICLE 370 OF THE CONSTITUTION (This is not a suo motu case by the Supreme Court of India)