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The observation came from a bench of Justices Adarsh K Goel and R F Nariman on a petition by Kumari Vijayalakshmi Jha, who sought a declaration that Article 370 was a temporary provision that lapsed with the dissolution of the J&K Constituent Assembly on January 26, 1957. She also sought a declaration that the constitution of J&K was void, inoperative and in breach of the Constitution.
The issue has acquired political overtones as there is a sharp divergence between the views of BJP and its partner PDP in J&K. The discussion also comes at a time when residency laws for J&K under Article 35A of the Constitution have been challenged for denying women marrying outside the state the right of inheritance and restricted employment.
Justice Nariman drew additional solicitor general Tushar Mehta’s attention to the SC’s 2017 judgment in State Bank of India vs Santosh Gupta case and said the controversy over Article 370 was settled by the court ruling the provision had acquired permanent space in the Constitution and it could no longer be abrogated.
The SC had said since the Constituent Assembly of the state ceased to exist, the President would not be able to fulfil the mandatory provision of getting its recommendation for its abrogation.
Appearing for J&K, senior advocate Rajeev Dhavan and additional advocate general M Shoeb Alam refuted the Centre’s claim that a similar petition was pending consideration before a bench headed by CJI Dipak Misra. Dhavan said the issue pending consideration related to validity of Article 35(c) of the Constitution and not Article 370.
Mehta said the Centre would study the implication of the 2017 judgment, which was on the applicability of Sarfaesi Act (bank securitisation law) to J&K and come back to the court with its view. The SC granted the Centre three weeks to formulate its response.