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When the bench suggested today that Article 370 was flexible, Shah replied saying, "But its own abrogation, its suicide, its killing..you can then say that under Article 356, you can amend anything, you can also amend the basic structure then..".
The Supreme Court was told today that the erstwhile state of Jammu and Kashmir had not entered into a merger agreement with Union India like the other princely states, and therefore it had Constitutional autonomy.
Senior Advocate Zafar Shah further told the CJI Chandrachud led Constitution bench, that this autonomy came from the Instrument of Accession and Article 370 of the Constitution itself.
On the nature of the abrogated provision, Shah added that if Article 370 was not wanted, it had to be seen if it was temporary or had it become permanent, because the machinery was not available to remove it.
"The machinery was constituent assembly, which had to be recreated, but which constituent assembly...If you want to completely integrate, then we have to remove 370, the IoA , and we have to do a merger agreement, we have to go back to the roots..", a bench of Justices SK Kaul, Sanjiv Khanna, BR Gavai and Surya Kant was told.
Yesterday, on Day 4 of the hearing, Senior Advocate Gopal Subramanium had submitted that the Jammu & Kashmir Constitution and Indian Constitution spoke to each other and they are complimentary to each other.
".the two constitutions speak to each other through Article 370...The Article 370 was not a repository for untrampled power...it was a medium through which the India Constitution could be applied..and here lies the dual obligation, which has to be discovered in the words of S. 147 of J&K Constitution and Article 370 of the Indian Constitution..", the Supreme Court was told.
Senior Advocate Sibal had on Day 3 concluded his arguments before the Constitution Bench. He argued that the power under Article 3 of the Constitution does not extend to effacing the character of a State into a Union Territory.
Referring to the government's majority in the parliament, through which it passed The Jammu and Kashmir Reorganisation Bill, 2019, Sibal said, "This majoritarian culture cannot destroy the edifice of what our forefathers gave us..they cannot do what they like if they have a majority.."
Sibal had on Day 1 of hearing, 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 had said.
On Day 2 of the hearing, dealing with the petitioners submission that the parliament could not have amended the Constitution to abrogate Article 370, CJI DY Chandrachud had questioned if a new category was being created apart from the basic structure that could not be amended.
Supreme Court was further told by Senior Advocate Sibal that Article 370 could not be abrogated, as the constituent assembly of the state which had the power to do so, was non-existent.
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.
Case Title: IN Re: ARTICLE 370 OF THE CONSTITUTION
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