New Delhi, August 3, 2023: The Supreme Court, on Wednesday, posed a question to the petitioners challenging the abrogation of Article 370 in Jammu and Kashmir. The question was, “Who can recommend the revocation of Article 370 in Jammu and Kashmir when no constituent assembly exists there?”
A five-judge constitution bench, headed by Chief Justice DY Chandrachud, began hearing a batch of pleas challenging the Centre’s decision to abrogate Article 370 on August 5, 2019. This move had been met with criticism from major opposition parties but was praised by those supporting the BJP.
The bench, which also included Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, asked senior advocate Kapil Sibal how a provision specifically mentioned as temporary in the Constitution could become permanent after the tenure of the Jammu and Kashmir constituent assembly ended in 1957.
The top court referred to proviso 3 of Article 370, which states that the President may declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications as he may specify. However, the recommendation of the Constituent Assembly of the State is necessary before the President issues such a notification.
The CJI asked Sibal, “What happens when the tenure of constituent assembly comes to an end? No constituent assembly can have an indefinite life. The proviso to clause (3) of Article 370 refers to the recommendation of the constituent assembly of the state. But what would happen when the constituent assembly ceases to exist?”
Sibal responded by saying that it is for the court to decide.
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