It does not exist now... So it could not make any recommendation, says counsel

Who is the present day “competent authority” to bring the extinct Constituent Assembly of Jammu and Kashmir back to life, Justice Surya Kant, one of the five judges on the Supreme Court’s Article 370 Bench, asked J&K leader Shah Faesal on Wednesday.

If the recommendation for abrogation of the special status to J&K has to necessarily emanate from the Constituent Assembly, who has the power to reconstitute it now, the judge repeatedly asked from the Bench led by Justice N.V. Ramana.

The Constituent Assembly ceased to exist in January 1957 with the coming into being of the J&K Constitution. Before its dissolution, it did not take a decision in favour of abrogation of Article 370 - the constitutional provision which is the fountainhead of the special status and privileges granted to J&K in accordance with the Instrument of Accession.

So, Article 370 had survived all these years until it was blunted by a President’s notification on August 5, abrogating the special status and subsequently reorganising the State into two Union Territories. In fact, the proviso to Article 370 (3) required that a recommendation for any change in the special status and privileges should originally come from the Constituent Assembly. The President could not have issued the August 5 notification, which made irreversible changes in the character of the State.

“The J&K Constituent Assembly does not exist now... So it could not make any recommendation,” senior advocate Raju Ramachandran, for Mr. Faesal, submitted.

“If there is no constituent assembly, then what? Who should be the competent authority to form the J&K Constituent Assembly [to decide on special status to J&K]? Please enlighten us on who is the competent authority to make laws,” Justice Kant asked. “So what are you suggesting? Should there have been a referendum or a concurrence or a consultation?”.