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Should Constitution be amended to make Article 370 permanent, asks CJI

Petitioners’ counsel Kapil Sibal argued that Parliament and the Union government abrogated Article 370 ‘unilaterally’, without making an effort to understand the will of the people of Jammu and Kashmir

August 08, 2023 06:06 pm | Updated 09:25 pm IST - NEW DELHI

Chief Justice of India Justice D.Y. Chandrachud, who heads a Constitution Bench examining the challenge to the abrogation of Article 370 of the Constitution, gestures during day 3 of the hearing on August 8, 2023. Photo: Youtube.com/@supremecourtofindia5950

Chief Justice of India Justice D.Y. Chandrachud, who heads a Constitution Bench examining the challenge to the abrogation of Article 370 of the Constitution, gestures during day 3 of the hearing on August 8, 2023. Photo: Youtube.com/@supremecourtofindia5950

Chief Justice of India D.Y. Chandrachud on Tuesday (August 8) said that as a constitutional democracy, India seeks its public opinions through established institutions like the Parliament and not through Brexit-type referendums.

The Chief Justice, who heads a Constitution Bench examining the challenge to the abrogation of Article 370 of the Constitution, which gave special status to Jammu and Kashmir, was reacting to a submission by senior advocate Kapil Sibal, appearing for the petitioners.

Mr. Sibal was arguing that the Parliament and the Union government abrogated Article 370 “unilaterally”, without making an effort to understand the will of the people of Jammu and Kashmir.

Supreme Court hearing on Article 370 abrogation | Day 1 | Day 2 | Day 3

“When you want to sever such a special relationship with Jammu and Kashmir, you had to ultimately seek the opinion of the people. The will of the people was central to this decision. It should have been a political decision… What happened in Brexit? There was no constitutional provision for a referendum. Yet, they asked for public opinion,” Mr. Sibal submitted.

But Chief Justice Chandrachud said a Brexit situation could not be envisaged in India.

“In a constitutional democracy, seeking the opinions of the people should be through established institutions. Any recourse to public opinion has to be sought through established institutions. You cannot envisage a Brexit-type referendum… That was a political decision taken by the then government in the U.K... But within a Constitution like ours, there is no question of a referendum,” Chief Justice Chandrachud observed.

Also read | In Article 370 hearing, the original text and spirit count

‘Executive acts’

Mr. Sibal argued that the Union government had abrogated Article 370 through a series of “executive acts”, starting with the dissolution of the Jammu and Kashmir Legislative Assembly and the State government, the subsequent imposition of the President’s rule in the erstwhile State and the tweaking of the proviso to Article 370(3) to side-step the pre-condition of getting the recommendation of the now defunct Jammu and Kashmir Constituent Assembly before declaring Article 370 inoperative.

“You [Indian government] played a fraud on the Constitution,” he said.

Mr. Sibal said the relationship between the Union government and the State of Jammu and Kashmir was “purely federal” and not quasi-federal like the other States. The consent of the State and its people had been necessary.

At one point, the Chief Justice asked how it could be assumed that Article 370 had assumed a permanent character in the Constitution.

“Was a constitutional amendment required in the Indian Constitution to drop the ‘temporary’ nature of 370 and make it permanent or can it be deemed permanent merely on the basis that the Jammu and Kashmir Constituent Assembly did not abrogate it before dissolving in 1957?” Chief Justice Chandrachud asked.

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