“Can section 370 be used to suppress itself”: the big question of the Supreme Court

New Delhi:

The Supreme Court today asked the Center for a ‘delay’ to make Jammu and Kashmir a state again.

The court, led by Chief Justice DY Chandrachud, as it heard a batch of petitions against the repeal of Section 370 in Jammu and Kashmir, said the “restoration of democracy” was important.

The top court made the comment after Solicitor General Tushar Mehta – representing the Center – told the bench that the decision to split the state into the union territories of J&K and Ladakh was a ‘temporary measure’ and that its statehood would be restored in the future. .

The Supreme Court also asked if Section 370 could be used to modify Section 370 itself. “Section 370 can be used to modify other provisions but can it be used to modify section 370 itself? That is the crux of the matter,” the court observed.

The judiciary considered how the provision could be revoked in the absence of a constituent assembly. “If Section 367 had been amended by Section 370 with the consent of the state (J&K), the petitioners would not have objected to its deletion,” the judiciary said.

Solicitor General Tushar Mehta said due process was followed in repealing the provision. “As there was no council of ministers in Jammu and Kashmir at the time, the governor exercised these powers. The president used Article 370 with the consent of the governor,” Mr. Mehta.

He said any change to the Constitution that “puts everyone on the same footing can never be criticized.” “It was the people of the state who were behind the integration of the state into the Indian Union. Removing some provisions could also go in the direction of the basic structure of the Constitution – fraternity, equality – it is a basic structure, it is part of fraternity,” Mr. Mehta said.

Petitioners opposing the repeal of Section 370 insisted that the provision could not have been repealed because the mandate of the Constituent Assembly of Jammu and Kashmir, whose consent was required before to take such a step, ended in 1957, after she drafted the former state constitution. With the Constituent Assembly gone, Section 370 gained permanent status, they said.

Against the agreement, the Center had previously asserted that there was no “constitutional fraud” in repealing the provision. “There was no wrongdoing and there was no constitutional fraud as alleged by the other side. This action was necessary. Their argument is flawed and inconceivable,” Attorney General R. Venkataramanani.