Thread by @VakashaS

The Supreme Court is scheduled to hear the petitions challenging the abrogation of #Article370 and reorganization of #JammuAndKashmir today.

Here's what happened at the hearings back in December:

https://twitter.com/VakashaS/status/1204996443213352960?s=19

Constitution Bench has assembled: Justices NV Ramana, Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai and Surya Kant.

They're asking Dinesh Dwivedi, appearing for PUCL, how long he'll need to complete his argument asking for the matter to be referred to a larger Bench.
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You can follow all the updates from inside and outside the court here on @TheQuint 's live blog: thequint.com/news/india/jam…

#Article370
#JammuAndKashmir

Judges trying to figure out order of petitioners/intervenors.

Rajeev Dhavan, for Sajad Lone's People's Conference, says Dwivedi + anyone else who wishes to argue that the matter should be referred to larger bench, should stick to that preliminary issue for now.
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Judges agree, instruct Dwivedi and Sanjay Parikh, the two lawyers saying there is a conflict between two old five judge benches of the Supreme Court on key aspects of the case (which is why it should be referred to a larger bench), to argue that first.
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The other lawyers on both the petitioners'side and the government's side, say there is no need for this. Judges will take a call at the outset based on what Dwivedi (for an intervenor) and Parikh (for PUCL) argue.
#Article370
#JammuAndKashmir

Dwivedi begins by talking about how the the Constitution of #JammuAndKashmir was conceived, and how provisions of the Constitution of India can't override and repeal this.
@TheQuint

He notes that #Article370 was supposed to be temporary till such time as the Constitution of #JammuAndKashmir came into force

Says that after this happened in 1957, no power was available to the government to take the actions it did on 5 August and after.
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Essentially, Dwivedi says that if we look at Constituent Assembly Debates, the text of #Article370 and the 1959 decision of the SC in Prem Nath Kaul case, the Presidential powers used by the Modi Govt for abrogation and Reorganisation ceased to operate back in 1957.

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Dwivedi reads language of #Article370 as it used to be. Points out it has a non-obstante clause & says #JammuAndKashmir wouldn't be treated like other states or princely states - it specifically says Article 238 will not apply (See here: writinglaw.com/part-vii-238-c…)
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Dwivedi next refers to the J&K Instrument of Accession, which said certain areas of governance would remain with the Maharaja. Justice Kaul asks again whether the text of this IOA was different from others.

#Article370
#JammuAndKashmir
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Dwivedi says there are some differences, and J&K chose to exercise options under it other princely states didn't.

Then reads from Maharaja's Proclamation explaining how J&K would operate with rest of India under Constitution of India, which hadn't yet come into force.
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Justice Gavai asks about a part of that Proclamation which says Constitution of India would supersede any other constitutional provisions. Dwivedi says that is in reference to the 1939 Constitution of J&K, not the 1957 Constitution.
#Article370
#JammuAndKashmir
@TheQuint

Dwivedi now argues that even Article 1 of the Constitution of India doesn't apply to #JammuAndKashmir on its own. It also only applies there because #Article370 says so.

He acknowledges that this may seem controversial, but says that is what the text clearly says.
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He now reads out sub-clause 1 of #Article370 , which sets out how laws passed by Parliament of India and other provisions of the Indian Constitution could be applied to #JammuAndKashmir : after consultation with the Government of J&K.

Link:
indiankanoon.org/doc/666119/

@TheQuint

However, he says, the text of sub-clause 2 of #Article370 indicates that such concurrence of State Govt had to be placed before Constituent Assembly of J&K for consideration. Which means it didn't contemplate this happening after that CA was dissolved.
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Even sub-clause 3 of #Article370 , which dealt with its removal, again requires a recommendation of the Constituent Assembly.

The language in Art 370(2) & (3) would be "otiose" (pointless), Dwivedi says, if it were to continue after the J&K Constitution was finalised.
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Justice Sanjay Kishan Kaul clarifies the argument from Dwivedi as follows: that #Article370 , the provisions of which were used by Centre to modify its own language via Presidential Orders, was no longer in operation and so could never have been used in this way.
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[Young lawyer in back faints. Judges make sure he's taken outside, given treatment, S-G Tushar Mehta calls for court doctor to check him up.

After all this, Justice Kaul jokes that the pressure of the arguments so high, it is being felt even in the back of the courtroom]

Dwivedi now refers to the Indian Constituent Assembly Debates to justify his interpretation of #Article370.

He notes that these Debates were referenced in the 1959 Prem Nath Kaul judgment of the SC (which supports his view) but not in the 1968 Sampat Prakash judgment.
@TheQuint

He is specifically referring to the statements of N Gopalaswami Ayyangar, a member of the Drafting Committee of the Constitution and the Minister who dealt with Kashmir Affairs in the government, available here:
constitutionofindia.net/constitution_a…

(See paras 10.154. 300-310)
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According to Dwivedi, these statements show the intention of the framers of the Indian Constitution, that #Article370 would cease to operate when the Constituent Assembly of #JammuAndKashmir finalised it's own Constitution.
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Judges ask him about the argument in his written submissions, in which he argues that govt couldn't change the way "Constituent Assembly" was to be interpreted in 370.

Dwivedi says this is an alternative argument, in event the court finds that #Article370 continued.
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Now he moves on to the 1959 Prem Nath Kaul judgment by a 5-judge Constitution Bench of the Supreme Court.
indiankanoon.org/doc/816126/

Raju Ramachandran for one of the petitioners had already referred to this case, though not for this purpose.
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Dwivedi reads extensively from the judgment, but eventually arrives at the following key findings of the 5-judge bench of the Supreme Court:

➡️ On sub-clause 2 of #Article370

➡️ on sub-clause 3 of #Article370

➡️ On what the Supreme Court thought was the intention of the drafters of the Constitution
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#Article370
#JammuAndKashmir
UPDATE:
Court has risen for lunch. To continue at 2 pm

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Case resumed a while back.

Dwivedi continued to read paras from the Prem Nath Kaul judgment, to buttress his argument about what the drafters of the Constitution intended.

#Article370
#JammuAndKashmir
@TheQuint

Dwivedi reads sections that say that Article 370 could not have taken away the plenary powers of the Maharaja also state that the Constitution of Jammu and Kashmir was supposed to be the final source of legislative power.

#Article370
#JammuAndKashmir
@TheQuint

Now he moves on to the Supreme Court's 1972 decision in the Maqbool Damnoo case (indiankanoon.org/doc/713534/).

#Article370
#JammuAndKashmir
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[The Damnoo case is crucial to this case, as govt has heavily relied on it to say it allows the Centre to make interpretative changes to #Article370 . Raju Ramachandran had expressly countered this earlier. For context and what was argued, see below ]

https://twitter.com/VakashaS/status/1205004143850672128?s=19

Dwivedi now moves on to Sampat Prakash judgment of Supreme Court in 1968, which said that #Article370 was not temporary, would continue in force until such time as it ceases to operate under the mechanism set out in Art. 370(3).
Link: indiankanoon.org/doc/1573666/
@TheQuint

[You can read more about the Sampat Prakash judgment and why it said what it did here in this piece by me for @TheQuint ]
thequint.com/news/law/artic…

Dwivedi argues that apart from a brief note when it came to the background, the 1968 judgment ignored the statements made in the Constituent Assembly and the language of #Article370 they referred to and ignored the 1959 judgment's view on the intention of the drafters.
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He says that if the 5-judge bench in 1968 wanted to take this view, they should have first referred the issue to a larger Bench, as this was opposed to what a 5-judge bench had said in 1959.
#Article370
#JammuAndKashmir
@TheQuint

Dwivedi also argues that there was no way Constitution of #JammuAndKashmir could be repealed under the Constitution of India, which the Centre did in this case.

"You would have to do something extra-constitutional for that, which is of course what they did", he says.

@TheQuint

Dwivedi also points out that the first Presidential Order of 5 August said it was using the power under Article370(1)(d) to make changes to #Article370 , which were then used for abrogation.
He says 370(1)(d) could not be used to change 370 itself.
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He briefly mentions that he thinks it was wrong for the govt to give concurrence to the orders on behalf of J&K itself, but says he will not get into the other arguments on constitutionality of the govt's actions. Dwivedi concludes.

#Article370
#JammuAndKashmir
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Sanjay Parikh, representing PUCL, now begins his argument on why a larger bench is needed to hear this case.

He says the scheme of #Article370 and #JammuAndKashmir 's relationship with Union of India was "frozen in time in 1957".

@TheQuint

Parikh was setting out the important dates and background for his argument, including Delhi Agreement. Judges asked how much longer he'll need, he said around 1 hour.

UPDATE:
The case has been adjourned till tomorrow, Wednesday 22 January.
#Article370
#JammuAndKashmir
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