CJI asks petitioners if Article 370 is above Basic Structure, amending powers of Parliament

Senior advocate Kapil Sibal, for the petitioner side, submits that Article 370 (1) had assumed a permanent character as soon as the Jammu and Kashmir Constituent Assembly was dissolved in 1957 after the framing of the State Constitution.

September 04, 2023 10:12 pm | Updated 10:12 pm IST - NEW DELHI

Chief Justice of India (CJI) Justice DY Chandrachud during a hearing challenging the abrogation of Article 370 to restore the Statehood of Jammu and Kashmir, in New Delhi. File

Chief Justice of India (CJI) Justice DY Chandrachud during a hearing challenging the abrogation of Article 370 to restore the Statehood of Jammu and Kashmir, in New Delhi. File | Photo Credit: ANI

Chief Justice of India D.Y. Chandrachud on September 4 said petitioners were placing Article 370 on a pedestal loftier than the Basic Structure Doctrine of the Constitution and even beyond the reach of the amending powers of Parliament.

The Chief Justice, heading a Constitution Bench hearing the challenge to the repeal of Article 370, was responding to submissions by senior advocate Kapil Sibal, for the petitioner side, that Article 370 (1) had assumed a permanent character as soon as the Jammu and Kashmir Constituent Assembly was dissolved in 1957 after the framing of the State Constitution.

Mr. Sibal argued that clause (3) of Article 370, which empowered the President to abrogate the Article as done on August 5, 2019, had ceased to exist.

Mr. Sibal said Article 368 (Parliament’s power to amend the Constitution) did not apply to Article 370 as the special procedure for repealing or modifying the Article was only available under clause (3) of Article 370 and none other.

Under Article 370(3) and its proviso, the constitutional provision can be declared inoperative by the President through a notification, provided the Constituent Assembly of J&K recommends the move.

“So, there is in our Constitution a provision to which even the amending power available in respect of the rest of the Constitution under Article 369 is unavailable. This provision lies even above the Basic Structure of the Constitution,” the Chief Justice questioned Mr. Sibal’s logic.

Mr. Sibal said neither the court nor the petitioners had to “advise” the Union government on how to abrogate Article 370. The call to repeal the constitutional provision, which had once given special privileges to Jammu and Kashmir, was a “political process”. The solution was political.

“In other words, you are saying there is no solution to Kashmir within the Constitution… That we have to look outside the Constitution for a solution… Is that your hypothesis? Mr. Sibal, all solutions have to be within the Constitution,” Chief Justice Chandrachud said.

The government, which had till recently laboured to convince the court that it had not violated the procedure under Article 370(3) to abrogate the constitutional provision, suddenly began arguing on Monday that the President had a “plenary power” to repeal Article 370.

“It is a sui generis (unique) power given only in this Article to the highest constitutional authority… It is neither a constituent or legislative or executive power, but has the flavour of all three,” Additional Solicitor-General K.M. Nataraj, argued for the Centre.

Mr. Sibal said such “myths” presented by the Centre need to be “disabused” immediately.

“Why did they change the term ‘Constituent Assembly of the State’ to the ‘Legislative Assembly of the State’ in the proviso to Article 370 if the President had such plenary powers as they claim… In fact, Article 370 limits the power of the President,” the senior advocate said.

He asked why the Centre had to wait till August 5, 2019 to abrogate Article 370 if the President had such “unique” powers over the constitutional provision.

“They (Union of India) could have abrogated Article 370 the very next day after the Constituent Assembly of J&K framed the State’s Constitution and dissolved itself in 1957. Why wait for all these years?” Mr. Sibal asked.

He said it would be irrational to think that the J&K Constituent Assembly had framed the State’s Constitution and then signed the “death warrant” of the State by throwing it at the mercy of the President’s “so-called plenary power” to abrogate Article 370 any time the President wanted.

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