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CJI asks if President could override recommendation on Article 370 abrogation

Centre says any recommendation of the Constituent Assembly would be merely ‘advice’, not binding on the President; CJI observes that to say it was “only an opinion and not binding... may not be right”

August 30, 2023 09:34 pm | Updated August 31, 2023 02:07 am IST - NEW DELHI

Supreme Court of India in New Delhi. File

Supreme Court of India in New Delhi. File | Photo Credit: S. Subramanium

Chief Justice of India D.Y. Chandrachud asked the Centre whether the Constituent Assembly of Jammu and Kashmir could have ever stopped the President of India from abrogating Article 370.

“If the Constituent Assembly of Jammu and Kashmir had recommended to the President not to abrogate Article 370, was it open for the President to override the advice?” Chief Justice Chandrachud, heading a Constitution Bench, asked Attorney-General R. Venkataramani on Tuesday.

Article 370 empowers the President to abrogate it, but not before seeking and getting the “recommendation” of the Constituent Assembly of Jammu and Kashmir. The proviso to Article 370(3) underscores that the recommendation of the Constituent Assembly of the State “shall be necessary before the President issues a notification” repealing Article 370.

Explained | What is the debate around Article 370?

‘Merely advice’, says Centre

Mr. Venkataramani said that the recommendation of the Constituent Assembly of Jammu and Kashmir was merely “advice”, and not binding on the President. The abrogation of Article 370 was to achieve the goal of complete national integration. Nothing could stop the President from doing it, he said.

“The Constituent Assembly has only a minimal role… We need not extol the role of its ‘recommendation’ in Article 370 beyond a certain level… If the Constituent Assembly were to say ‘please don’t abrogate Article 370’, the President can still do it,” Mr. Venkataramani said.

Solicitor-General Tushar Mehta asked how the President could be dependent on the opinion of a “body outside the Constitution of India”.

May not be ‘opinion’ only: CJI

However, the Chief Justice said that the requirement that the President takes the recommendation of the Constituent Assembly cannot be brushed aside. “The proviso to Article 370(3) said taking the recommendation from the Constituent Assembly was a condition precedent,” the Chief Justice said.

The CJI said that Article 370 gave categorical recognition, if not constitutional status, to the Constituent Assembly of Jammu and Kashmir. “Therefore to say that this recommendation of the Constituent Assembly was only an opinion and not binding on the President may not be right,” Chief Justice Chandrachud observed.

The Constituent Assembly of Jammu and Kashmir had dissolved in 1957 without choosing to recommend the repeal of the provision. The petitioners, represented by senior advocate Kapil Sibal, had contended that the silence of the Constituent Assembly meant that it had wanted Article 370 to be a permanent part of the Indian Constitution.

The petitioners had argued that the government’s move in 2019 to replace the phrase ‘Constituent Assembly of the State’ in the proviso to Article 370 with ‘Legislative Assembly of the State’ in order to facilitate the abrogation was a fraud on the Constitution.

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