In a significant development, the Supreme Court of India has raised a crucial question regarding the permanence of Article 370 of the Constitution. The Court questioned whether accepting the argument that Article 370 became permanent when the constituent assembly of Jammu and Kashmir was dissolved in 1957 would mean that the provision becomes akin to the basic structure of the Constitution. This query was posed by the Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant during the hearing of petitions challenging the abrogation of Article 370.
Senior Advocate Kapil Sibal, representing National Conference leader Mohammad Akbar Lone, argued that as per clause 3 of Article 370, the said Article can be repealed only on the recommendation of the constituent assembly of J&K. Since the constituent assembly was dissolved in 1957, the Article became permanent. Sibal said,
“Status quo cannot be changed once the constituent assembly comes to an end,”
To this, CJI DY Chandrachud asked,
“But then does it become like the basic structure?”
Sibal emphasized that while parliament works within the four corners of the Constitution, a constituent assembly works in the absence of one and is, therefore, not bound by anything. He stated,
“So parliament cannot convert itself into the constituent assembly. If this is allowed then one day the constituent assembly will breach the basic structure. I am not worried about this case, [but] what about the future of the country then if this is allowed? This is the genesis of the politics of the day which defines what kind of constitution we want.”
The CJI responded,
“But to completely divorce the power of amendment from the political power of amending is also not proper. The constituent power of parliament to amend the Constitution is a political power.”
The hearing also saw discussion around the scope of clause (d) of Article 370(1). The CJI asked Sibal about the President taking decisions without consultation or concurrence with the J&K government.
Justice Kaul weighed in saying,
“It is a double limitation. What has it limited to? To matters in the Union and concurrent lists. The second part is, which is in consultation with the State government, and then it is for that part of union and concurrent list which forms part of instrument of accession. For those Parliament can legislate.”
Sibal argued that it lays out the contours within which parliament can enact laws for J&K. The CJI then opined that there were two possible interpretations to the clause. He said,
“One is that clause (d) refers to the President making exception and modifications (when applying provisions of the Constitution to J&K), and if it is a subject under clause b(1) subject then it requires consultation (with the J&K government) and if it is beyond clause b(1) subject, then you need concurrence (of the J&K government). The other interpretation is if you make any (Constitutional) provision applicable to Jammu & Kashmir and not (merely) exception or modification, then also it needs consultation and concurrence. Now we have to see which is the correct approach,”
Justice Kaul then summed up that the petitioners’ case is that Article 370 has become a permanent feature of the Constitution and cannot be abrogated through an incorrect process. The CJI then remarked,
“Mr. Sibal, you are correct on one point – that the constitutional practice has been to selectively apply the Constitution to Jammu and Kashmir and not the whole thing. Of course, we will hear the Attorney General on this too.”
Sibal underscored that the Governor can dissolve the legislative assembly only on the aid and advice of the council of ministers, and the same did not happen in the case of the erstwhile State. He explained the chain of events in this regard.
“When the Governor dissolved the assembly in November 2018, there was no consultation with the council of ministers. Article 147 of the J&K Constitution Act makes it clear that no legislature can move a bill to amend Article 370 and it was temporary only because constituent assembly was there. There can be no amendment to Article 370. The legislature has no such powers.”
Justice Kaul then asked whether the J&K Constitution can give permanency to Article 370. Sibal replied saying,
“That is why legislative assembly was converted into constituent assembly (by the parliament) and parliament converted itself into constituent assembly. This is unheard of!”
Justice Kaul then asked whether the Constitutional provisions applicable to J&K could not have been amended by the Centre at all. Sibal replied;
“My argument is that the constituent assembly has exercised its choice and now under what provision of the Constitution can you change that? Under Article 356? How can this be done? This was a political act to achieve some political objective de hors the provisions of the Constitution. Parliament cannot convert itself into a constituent assembly”
Justice Khanna then said that Article 370 has an element of flexibility.
“Let us not go into how it was done etc. Whether with consultation or acceptance. When we read Clause 3; at the time when the Constitution was adopted there was no constitution of J&K and there was no constituent assembly. But they knew constituent assembly will come. Why cannot we accept the argument that the constituent assembly for the purpose of the proviso could also be interpreted to include the legislative assembly?”
Justice Khanna explained that his question was keeping in mind the fact that parliament could have amended Article 370.
Sibal responded by saying that the flexibility was at the instance of the constituent assembly and not parliament. He said;
“This was not given to the legislature because Article 147 of J&K Constitution says there cannot be any such flexibility at all. It was contemplated by the framers of the Constitution that the constituent assembly will decide the finality of the relationship between India and J&K. The constituent assembly decided that relationship and that cannot be changed by parliament,”
The hearing will continue on August 8, Tuesday.