Delhi, August 29, 2023 (PPI-OT): The Supreme Court of India has observed that only the Constituent Assembly of Indian illegally occupied Jammu and Kashmir had the power to recommend the abrogation of Article 370 which granted special status to the territory.
The remarks were passed by a five-member bench headed by Chief Justice of India (CJI) D.Y. Chandrachud during the 12th Day hearing on a batch of petitions challenging the repeal of Article 370 by the Narendra Modi-led Indian government on August 05, 2299.
The CJI raised the issue of whether the President’s power could override a recommendation from the Constituent Assembly. If the proviso to 370(3) cannot apply, does it mean substantive power under 370 is denuded or lost? Questioned the Chief Justice.
Solicitor General Mehta responded by posing an intriguing hypothetical scenario. He questioned whether, in the event of the dissolution of the Constituent Assembly, its members would decide that Article 370 should be abolished. He proposed that such a scenario would not necessarily bind the President to act in a certain fashion.
The CJI said, “If the proviso to 370(3) cannot apply does it mean substantive power under 370 is denuded or lost? If not lost, then is it a unilateral power which can be exercised by the President. But there was no Constituent Assembly. So Article 367 was followed since due to absence of Constituent Assembly, there is no Legislative Assembly. That is why you go to Parliament for a broader consensus. But in this process, there is a dilution. That is the role prescribed by 370(3) … But now, you say that role is mere recommendatory. But mere recommendation does not mean it can be overridden…”
The Indian government, earlier, informed the Supreme Court that making Jammu and Kashmir a Union Territory was a temporary measure. The response of the Modi government came when the bench asked it to provide a roadmap for restoring statehood in Jammu and Kashmir.
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