Article 370 Hearing : Live Updates From Supreme Court [Day 7]

Naphade: Your lordships have specifically recognised the power to convene the constituent assembly. That's an act of sovereignty.

Naphade: In the alternative, even if we accept the concept of internal sovereignty, with respect to other states, your lordships in Bommai has talked about internal sovereignty.

Naphade: But the fact remains that concept of sovereignty has some content. With regards to J&K, that content is that their internal affairs be conducted atleast in accordance with Part V and VI of J&K constitution.

Naphade: When we talk of sovereignty, it doesn't necessarily contemplate external sovereignty. I accept that the concept of sovereignty vis a vis J&K is not external sovereignty. Because defence, foreign affairs, communication was already given.

Naphade: The existence of the J&K constitution is a limitation both on the power of the President under Article 370(1)(d) and also the power of parliament under Article 3 and 4.

Naphade: The question is that does it not contemplate that the constitution of India as framed recognises the existence of J&K constitution and therefore doing away with that can only be through a constitutional process.

Naphade: The executive and the legislature of J&K are created by J&K constitution. By taking recourse to Article 3&4 these provisions cannot be done away with.

Naphade: Every judgement in Keshavanda Bharati say that every part of the Constitution can be amended. Some judgments take the view that basic structure cannot be touched. But not a single judgement in Keshavanda Bharati which carves out that exception.

Naphade: The only route was through Article 368.

Naphade: In Sampat Prakash, Mr Dave said that your lordships have recognised that Article 370(3) is still in force. That route is obviously closed. But Sampat Prakash goes on to say that even with 368 you cannot do it.

Naphade: 370(1)(d) if it is deployed in such a manner that it results in the complete abrogation of J&K Constitution is not contemplated.

Naphade: Originally, there were two routes- one was 370 itself. After 1957, that route was closed. Then we take recourse to Article 368.