Sibal stated that Article 370 cannot be repealed:

Sibal stated that Article 370 cannot be repealed: Government itself lacks the authority to change Section 370, according to the CJI.

Article 370

The Supreme Court heard 23 petitions contesting the decision to remove Article 370 from Jammu and Kashmir today, or on August 8, during the third session. Chief Justice DY Chandrachud, Justices SK Kaul, Sanjiv Khanna, BR Gavai, and Suryakant made up the five-judge bench for the hearing.

After three years, the Supreme Court is currently debating Article 370. A 5-judge constitutional bench has already heard the case in 2020. The court then declared that the case is being transferred to a larger constitutional bench.

 

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Excerpts from the Supreme Court’s discussion of Article 370 on August 8.

  • CJI: According to Article 370, it may be repealed.
  • Sibbal-370 cannot be changed, so forget about getting rid of it.
  • You are correct, hence the government cannot modify Section 370 on its own.
  • Sibbal: This is not a clause to modify the Constitution; rather, it is a clause of interpretation.
  • Justice Khanna: According to Article 370’s Clause (d), the President may change it. How might things alter if these adjustments were made?
  • In Sibbal, no. The understanding states that amending 370 is prohibited. The Constituent Assembly is irreplaceable. You can’t accomplish anything indirectly that you can’t do directly.
  • Justice Khanna: Can’t the interpretation provision be changed?
  • Sibal: I’ll change 367 rather than 370 in order to change 370.
  • Not with the constitution, but in 1954, CJI- 367(4) was first brought up. If your claim is true, then 367(4) as initially added is also invalid when 367(4) is introduced.
  • Sibbal: Absence makes ambiguity impossible to discern. The first principle is this.
  • Sibal: Where is the voice of Jammu & Kashmir’s citizens? There have been 5 years. Do you practice representative democracy in any way? India as a whole is changeable.
  • Sibal: You are not allowed to modify or interpret the constitution’s clauses in order to advance your political interests. Although the constitution is a political document, it can be abused for political purposes.
  • Sibbal: What governs the country? It includes a number of values. The principles that the people themselves represent will be heard, as will their voices.
  • Sibal- What remains of democracy if critical laws are repealed and the public’s voice is muted? I may say that this is a once-in-a-lifetime chance. For India’s future, not for the historical present. It is anticipated that the court won’t keep quiet.
  • Gopal Subramanian, senior attorney I would like to finish Mr. Sibal’s sentence. Certain matters, particularly the decisions made by the Jammu and Kashmir Constituent Assembly, require in-depth knowledge.
  • CJI: Mr. Subramanian, will you speak after lunch on tomorrow?
  • Gopal Subramanian: My lords, without a doubt.

Article 370

What transpired on August 3rd in the courtroom?

The petitioners’ attorney, Kapil Sibal, claimed that Article 370 cannot be changed during the hearing that was held on August 3. Justice Khanna said that section (c) of this article does not state as such. I can show you that Article 370 is permanent, Sibal continued.

  • Sibal: Stop doing anything since the federal government is unable to present the bill.
  • J&K’s agreement is currently necessary, and other states’ opinions are all that are needed to introduce the law, according to CJI DY Chandrachud.
  • What is the process for passing constitutional orders, Justice Suryakant?
  • Sibbal – Everyone nodded in agreement.
  • Justice Suryakant: But how did it go? Did the President or the Parliament approve it?
  • Sibal: It happened as a result of the President’s notification. After reaching an understanding, a consultation was held. It was carried out in this manner.
  • Sibbal: The public’s view should also be considered in this.
  • Sibal: When all the states joined the union, the government failed to recognize the value of seeking guidance.
  • Sibal: At that point, the connection between the Center and the State is entirely lost. As the executive and the legislature, you (the government) control the state’s authorities. And you make decisions independently of anyone or anything else.
  • You then offer your approval, Sibbal. The individuals who created this constitution were excluded from the process. In essence, the constitutional foundation is being violated.
  • Sibal – According to the Jammu and Kashmir (J&K) Constitution, the legislature lacked the authority to advocate for the repeal of Article 370.
  • Sibbal- In accordance with the instructions from 1950 and 1954, the Constitution of Jammu and Kashmir guaranteed that no law intended to change the territory’s borders may be passed without the government’s approval.
  • Justice BR Gavai- Cancelling the event won’t be possible until the entire population of Jammu and Kashmir is taken into account.
  • Sibal- I acknowledge that it must be done eventually, but only after the constitutional procedure has been followed.
  • Judge Chandrachud You claim that one section of the constitution cannot be changed because it is outside the scope of the constitution’s amendment powers. So, in addition to the original structure, we are also adding a new category, and Article 370 falls inside that?
  • This is not a brand-new category, Sibbal. It falls within this category.
  • The Hon. Kaul Can you assert that, despite widespread desire for change, there is no framework in place to implement it (Article 370)? Are you attempting to argue that it cannot be changed, even if Kashmir as a whole wanted it to?
  • Article 370 cannot be amended or changed, according to Sibal.

Article 370

August 2 – This happened in the courtroom

  • The CJI questioned Kapil Sibal, the petitioners’ attorney, at the hearing on Wednesday, August 2, regarding the temporary and transitional nature of Article 370. Article 370 may not be repealed by Parliament in the absence of a Constituent Assembly.
  • In response, Sibal had stated that the Constitution forbade the removal of Article 370 from Jammu and Kashmir. He claimed in court that, in accordance with Article 370, only after consulting the state administration, may Parliament pass laws for Jammu and Kashmir. The J&K legislature has always had the authority to repeal Section 370.
  • When the Constituent Assembly was dissolved in 1950, Sibal testified before the court, Article 370 automatically became a permanent article. If it were to be deleted, the Constituent Assembly’s consent would need to be obtained, but as it isn’t there right now, it can’t be.

 

The Center submitted a fresh affidavit in this case on July 10.

On July 11, the most recent hearing in this case took place. The Center had submitted a fresh affidavit in this case the day before, on July 10. The Center has claimed that Jammu and Kashmir had endured three decades of terrorism. Article 370 had to be repealed in order to put an end to it.

 

Shehla Rashid and IAS Shah Faesal withdraw their petition.

The petitioners’ senior attorney Raju Ramachandran stated during the previous hearing that two petitioners, IAS Shah Faesal and Shehla Rashid Shora, had made an appeal to have the petition withdrawn.

In response, Solicitor General Tushar Mehta, speaking on behalf of the Centre, had stated that there would be no problems if any petitioner wanted to remove his name. The bench then permitted withdrawal of nominations.

Article 370

Supreme Court case pending for four years

On August 5, 2019, the Central Government repealed Article 370 in Jammu & Kashmir. The Constitution Bench has been considering the case since October 2020.

 

Jammu and Kashmir’s bid to hold early elections was just denied.

A petition asking the Supreme Court to order the Election Commission to hold assembly elections in the Union Territory of Jammu and Kashmir without delay was denied on July 6. According to the Supreme Court, the election will not be heard until after the Article 370 case is scheduled for hearing on July 11.

 

 

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