The top court, which was hearing a batch of petitions challenging the abrogation of the provisions of Article 370.
New Delhi: The Supreme Court raised a query on Wednesday as to who could be the competent authority to reconstitute the Jammu and Kashmir Constituent Assembly to take a call on altering the special status of the erstwhile state under Article 370 of the Constitution.
The top court, which was hearing a batch of petitions challenging the abrogation of the provisions of Article 370, asked that in the absence of a constituent Assembly, which alone under the J&K constitution give nod for the abrogation or continuation of Article 370, would the referendum be a route for determining the will of the people on the contentious issue.
The poser came from the five-judge constitution bench of Justices N.V. Ramana, Sanjay Kishan Kaul, R. Subhash Reddy, B.R.Gavai and Surya Kant, after petitioners referred to the constitutional provision and said that only the Constituent Assembly, which represents the will of the people, is empowered to make recommendation to the President on any changes in the special status of Jammu and Kashmir.
“Who should be the competent authority to form the J&K Constituent Assembly (to decide on special status of J&K)? Will it be a case of referendum, concurrence or consultation,” asked Justice Surya Kant when senior counsel Raju Ramachandaran said during temporary phase of the President’s Rule, Parliament could not extinguish the character of a state and carve out two Union Territories — J&K and Ladakh — without ascertaining the will of the people.
Appearing for Shah Faesal — a former bureaucrat and head of the J&K Peoples’ Movement — Mr Ramachandaran said, “Solution should emanate from the people on Article 370 through democratic process. It is for the people to take their call on deciding their relationship with the Union and unilateral decision cannot be taken”
He further said that J&K constitution “forbids the state Assembly from changing the relationship between the Sate and the Union of India.”
Mr Ramachandaran flagged two situations contending that Parliament could not have changed the character of the State during temporary phase of the President’s Rule and even the J&K Assembly, even if it was surviving, under the State constitution could not given concurrence for the abrogation of Article 370, Article35A and the reducing and dividing the State into two Union Territories.
At this court asked Mr Ramachandaran which was the competent authority to create the constituent Assembly which alone can decide on changing the relationship between the State and the Union of India, including the abrogation or continuation of Article 370 of the Constitution.
“The current route adopted is wrong constitutional route. The unilateralism (of the Union of India) can’t be constitutionally acceptable solution to pass the muster. This question can be answered if there is a democratic route to ascertain the will of the people and not unilateralism”, said Ramachandaran addressing the poser from the constitution bench.
In another poser, when Justice Surya Kant asked “is your submission that State assembly is a substitute of constituent assembly that had made the J&K constitution, Mr Rama-chandaran said, “No”.
Mr Ramachandaran will continue his arguments on Thursday, the last day for the haring by the five-judge constitution bench before top court goes for Winter break from December 21 to January 01, 2020.