#Article370
He now moves to the 1972 SC decision in Mohd.Maqbool Damnoo: indiankanoon.org/doc/713534/
(Background: In Damnoo, an amendment to Art 370 was made much like in the way it was done in the recent abrogation orders and the same was upheld by the SC)
12/n
He now moves to the 1972 SC decision in Mohd.Maqbool Damnoo: indiankanoon.org/doc/713534/
(Background: In Damnoo, an amendment to Art 370 was made much like in the way it was done in the recent abrogation orders and the same was upheld by the SC)
12/n
Nevertheless, he tries to differentiate the recent abrogation orders and the exercise which was scrutinised in Damnoo.
He argues that in the Damnoo instance, there was an amendment of the J&K Constitution itself, prior to the amendment of the Indian Constitution.
13/n
He argues that in the Damnoo instance, there was an amendment of the J&K Constitution itself, prior to the amendment of the Indian Constitution.
13/n
'Art 370 does not control the power of amendment of the J&K Constitution since it is not a creation of the Indian Constitution but of the original proclamation made by the Raja', adds Dwivedi
Given this, Art 370 cannot be used for repealing the J&K Constitution itself.
14/n
Given this, Art 370 cannot be used for repealing the J&K Constitution itself.
14/n
#Article370
He is now focusing on the scope of Parliament's amending powers u/Art 368.
Asserts that this power is limited to amending the Indian Constitution and does not extend to the J&K Constitution.
15/n
He is now focusing on the scope of Parliament's amending powers u/Art 368.
Asserts that this power is limited to amending the Indian Constitution and does not extend to the J&K Constitution.
15/n
He further submits that the federal arrangement entered into with J&K was more flexible in comparison with that of other states.
Thus, the power to amend does not apply to the same extent vis a vis J&K, adds Sr.Adv.Dwivedi
16/n
Thus, the power to amend does not apply to the same extent vis a vis J&K, adds Sr.Adv.Dwivedi
16/n
He now argues that if Art 370 can be used to change the relationship between the state and the Union, then the purpose of carving out a separate constitution for J&K would be defeated
17/n
17/n
He is now trying to distinguish the SC decision in Sampath Prakash: indiankanoon.org/doc/1573666/
Asserts that SC in the said case had based its reasoning on Presidential Orders which received the approval of J&K Constituent Assembly, unlike in the present instance.
18/n
Asserts that SC in the said case had based its reasoning on Presidential Orders which received the approval of J&K Constituent Assembly, unlike in the present instance.
18/n
He reiterates that there are 2 parallel constitutions at work - the Constitution of India and that of J&K.
Therefore, the power to amend/repeal must be found in either one of those and since it is not, there can't be a constitutional and lawful repeal.
17/n
Therefore, the power to amend/repeal must be found in either one of those and since it is not, there can't be a constitutional and lawful repeal.
17/n
Subhash Reddy J. poses a question: who can recommend the abrogation of Art 370, now that J&K Constituent Assembly is no longer in existence?
Dwivedi: 'Perhaps there is no provision for this at all, but under any circumstance, extra-constitutional means cannot be taken'
18/n
Dwivedi: 'Perhaps there is no provision for this at all, but under any circumstance, extra-constitutional means cannot be taken'
18/n
Sr.Adv.Dwivedi concludes his submissions.
Adv. Sanjay Parikh has now commenced arguments on behalf of the Petitioners in WP 1368/2019 - PUCL.
He submits that Art 370 is frozen in time.
19/n
Adv. Sanjay Parikh has now commenced arguments on behalf of the Petitioners in WP 1368/2019 - PUCL.
He submits that Art 370 is frozen in time.
19/n
Everything under it could only be done while the J&K Constituent Assembly existed.
Once the Assembly ceased to exist, the provision was frozen in time and was only kept on the books as proof of the manner in which the accession and constitution-framing for J&K took place.
20/n
Once the Assembly ceased to exist, the provision was frozen in time and was only kept on the books as proof of the manner in which the accession and constitution-framing for J&K took place.
20/n
With that, the Bench has risen for the day.
Before the Bench rose, Adv. Sanjay Parikh mentioned that he would need around an hour tomorrow to finish his submissions.
21/21
Before the Bench rose, Adv. Sanjay Parikh mentioned that he would need around an hour tomorrow to finish his submissions.
21/21
