[Live Updates From Supreme Court] Article 370 Hearing

Bench has risen. It’ll continue tomorrow morning.

P.L. Lakhanpal v. Union of India (1966): In this case, there was no non-application of mind because the orders were passed with concurrence of the State Government. However, here, that has not happened.

Reorganisation of J&K could not have taken place during President’s Rule. Additionally, not only could they not reorganise the state, they also did not hold the authority to diminish it to the status of a UT.

The temporary nature of the provision does not entail that it’s capable of being “abrogated, modified or replaced unilaterally”. Any changes made were subject to the decisions of the Constituent Assembly.

RR (Reading out from Justice AS Anand’s Constitution of J&K - Its Development and Comments) - I would like to show whether Art. 370 was meant to be a temporary provision.

RR - In Andhra Pradesh, we made two states. We cannot diminish the status of a State into a Union Territory. That’s against the principles of federalism.

J. Kaul - Constitution talks of two ways to change the boundaries of a State. Article 3 allows you to form a new one by altering boundaries or by bifurcation of one state. What about a UT ?

Article 147 of the J&K Constitution limited amendments to Article 3 and 5. Any amendment of Article 370 of the Indian Constitution was out of the scope of the Parliament. Neither the will of the people was involved. And they had no reason for doing so. How could this be constitutional ?

CO 272 said that the Constituent Assembly was replaced by the Legislative Assembly. And any changes in the federal structure required the recommendation of the Constituent Assembly. Not the President, not the Governor.

What is a constituent power ? When a body is authorised by the Constitution to exercise certain functions. In order to alter the relationship between the Centre and the State, to change the very federal system which forms the basic structure, was a constituent power. They did not have this power and transgressed their boundaries.