Kashmir special status case hearing sheds light on Constitution

ANKARA (AA): The top Indian court on Thursday continued hearing the case challenging the Indian government’s 2019 decision to scrap the special status of Jammu and Kashmir, with petitioners questioning the role of the parliament which abrogated the special status.

As the second-day hearing began in the morning, senior Advocate Kapil Sibal, the petitioner’s counsel, continued his argument in the case before the constitution bench led by Indian Chief Justice Dhananjaya Yeshwant Chandrachud, which is conducting a day-to-day hearing in the matter.

Sibal told the bench there is a “nuanced interpretation” of Article 370 and also argued “370 can’t be touched,” according to the Indian legal news portal Livelaw.

On day one of the hearing, the bench questioned the petitioners who can recommend the revocation of Article 370 in Jammu and Kashmir when no constituent assembly exists there.

The body that debated and drafted the Constitution was called the Constituent Assembly. While the Constitution of India came into force in 1950, a year later – in 1951 – the Constituent Assembly of Jammu and Kashmir came into being.

‘Political act’

Kapil told the court that Article 370 was tossed out of the window through a “political act.”

He also argued that according to Clause (3) of Article 370, the recommendation of the Constituent Assembly of Jammu and Kashmir was necessary to abrogate Article 370.

“This was not a constitutional act. Parliament took upon itself the role of constituent assembly and revoked Article 370, saying it is exercising the will of the people of Jammu and Kashmir. Can such a power be exercised?” he questioned, according to the news gathering agency Press Trust of India. He added: “Never in the history of this country has a state been converted into two union territories.”

He also argued that “political act cannot be exercised by the Parliament, which is a legislative body. Because that legislative body is controlled by the Constitution. It can’t go beyond that.”

He noted that “the Indian parliament cannot say by a resolution that we are the constituent assembly.”

In the ongoing hearing, at least 18 counsels are expected to present the arguments on behalf of various petitioners and intervenors.

On Aug. 5, 2019, India repealed Article 370 of its Constitution, which allowed Jammu and Kashmir its own constitution, flag, and two-house legislature that could frame its own laws.

Another piece of legislation that day scrapped Article 35A, which had allowed the region to define its residents and barred outsiders from buying properties or taking up government jobs.

Previously a single state, Jammu and Kashmir was downgraded and divided into two centrally ruled union territories called Jammu and Kashmir and Ladakh. This drew sharp reactions from both Pakistan, which claims the region in full, and China, which claims parts of Ladakh and controlled a sizable part of the entire Jammu and Kashmir before the formation of India and Pakistan in 1947.