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Senior Advocate Kapil Sibal told the bench today that while abrogating Article 370, the Central government assumed the power of the state and decided without any reference to any institution, to give itself consent, not seek it, making the Governor become the President, leaving out the people who gave themselves the J&K constitution out of the process.
Noting the petitioner's submission that the parliament could not have amended the Constitution to abrogate Article 370, CJI DY Chandrachud today questioned if a new category was being created apart from the basic structure that could not be amended.
"The Constitution is also a live document, can we say at some stage that there is no process to amend it, leaving the basic structure..", further remarked Justice SK Kaul.
A five-judge bench of the Supreme Court, which is hearing the pleas challenging the government's 2019 decision to abrogate Article 370, was told by Senior Advocate Kapil Sibal today that Article 370 could not be abrogated, as the constituent assembly of the state which had the power to do so, was non-existent.
Hearing this, the CJI said, "How can you say it could not be done..we are treading on thin ice now..".
"How do you change the constitutional structure..today you say we will take over J&K.. I only say this was a pure political act, you circumvented the Constitution to reach the end result..", Sibal added.
In response, the bench also comprising Justices Sanjiv Khanna, Surya Kant and BR Gavai said that everything is political process, the only thing to be seen is if it can be done within the constitutional means or not.
On a similar note, Senior Advocate Gopal Sankaranarayan interjected Sibal to tell the constitution bench that Article 370 could not be abrogated at one go, but changes could be made to the provision little by little. Hearing this Justice Kaul asked,
"How can you say that Article 370 can become infructuous at a stage, but it cannot be permanently removed..You are saying that the shell of Article 370 should remain but the substratum should go away..".
The case will now be heard on Tuesday, August 8.
Yesterday, Senior Advocate Kapil Sibal had told the Supreme Court that the central government abrogated through a political act Article 370 of the Constitution of India, which granted special status to the erstwhile state of Jammu and Kashmir.
"...the govt of the day is staring at this provision and according to me through a political act, not a constitutional procedure declare that it was to be tossed out of the window..such a political act cannot be done by the parliament, it cannot take such a decision..", Sibal told a five judge bench.
The senior lawyer further told the constitution bench that while nobody could deny that Jammu and Kashmir was with the Union of India, there is a special relation which could not be jettisoned.
Recently, the central government had filed its affidavit in the matter submitting that the abrogation of Article 370 was a historic constitutional step which has brought unprecedented development, progress, security and stability to the region, which was often missing during the old Article 370 regime.
In its most recent counter affidavit filed in the pleas challenging the abrogation of Article 370, the Union of India had further submitted,
" ...since 2019, the entire region has witnessed an unprecedented era of peace, progress and prosperity. It is submitted that, life has returned to normalcy in the region after over three decades of turmoil. It is submitted that schools, colleges, universities, hospitals and other public institutions are functioning efficiently without any strikes or any kind of disturbances during the last three years. The earlier practice of daily hartals, strikes, stone pelting and bandhs are things of the past now."
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