BENCHMARKING PHASE

As the hearing of a number of petitions challenging the abrogation of Article 370 resumed, the Supreme Court reserved the order about transferring the case to a larger constitution bench

- Tahir Bhat

The Supreme Court has started hearing the gamut of petitions challenging the abrogation of Article 370 on August 5, 2019. Initially heard in December, the case came up for hearings last week.

It was Justice Sanjay Kishan Kaul, the only Kashmiri judge on the Article 370 bench, who had sought to know if any constitutional provision or even a Constitution could ever be a permanent structure. “Can a Constitution be permanent, frozen in time,” the judge asked Dinesh Dwivedi arguing for Prem Shankar Jha, on December 13, according to The Economic Times. He went on to add that Article 370 could not have been envisaged as a permanent feature. Once its purpose was sub-served where is the question of permanency? “Can anything be permanent in a polity of a country… that could not have been the purpose?”

The focus of resumed hearings, however, was whether the case should be heard by the existing 5-judge bench or by a larger 7-judge constitutional bench. This was inevitable in wake of the court observation that before going into the matter it would first hear the submissions on reference.

On the fourth day of hearing, the bench comprising of justices Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai and Surya Kantand headed by Justice N V Ramana observed that it will refer all the petitions to a larger Constitution bench only if it is satisfied that there is a direct conflict in two earlier verdicts of the apex court Prem Nath Kaul versus Jammu and Kashmir (1959) and Sampat Prakash versus Jammu and Kashmir (1970). The two verdicts were given by separate 5-judge benches.

So far, four advocates have argued in favour of bench upgradation.