This story is part of
Article 370 abrogation case | The Hindu’s detailed coverage

Is Article 370 being equated to Basic Structure of Constitution, asks Supreme Court

There was nothing within the constitutional structure which empowered the President or Parliament to abrogate Article 370, argues petitioners’ counsel Kapil Sibal

August 03, 2023 08:05 pm | Updated 11:24 pm IST - NEW DELHI

A Constitution Bench headed by Chief Justice of India D.Y. Chandrachud hears senior advocate Kapil Sibal’s submission during the hearing on Article 370 on August 3, 2023.

A Constitution Bench headed by Chief Justice of India D.Y. Chandrachud hears senior advocate Kapil Sibal’s submission during the hearing on Article 370 on August 3, 2023. | Photo Credit: Photo:

The Supreme Court on August 3 asked whether Article 370, which gave special status to Jammu and Kashmir, is being equated to the Basic Structure of the Constitution.

A Constitution Bench headed by Chief Justice of India D.Y. Chandrachud was reacting to senior advocate Kapil Sibal’s submission that there was no constitutional process available to abrogate Article 370, and the provision had attained a “permanent character” after 1957 when the Jammu and Kashmir Constituent Assembly dissolved, leaving the Article unchanged.

Get the latest news from Supreme Court hearing on Article 370 abrogation | Day 1 | Day 2

“The abrogation of Article 370 was a purely political act. There was nothing within the constitutional structure which empowered the President or the Parliament to abrogate Article 370,” Mr. Sibal argued.

“How can you say that the Parliament could not have exercised its preliminary amending powers to abrogate Article 370,” Chief Justice Chandrachud questioned Mr. Sibal.

“Will that not amount to equating Article 370 with the principle of Basic Structure of the Constitution when you say the abrogation of Article 370 can never be done?” Justice S.K. Kaul asked. The Basic Structure embodies the essential features of the Constitution, like dignity, liberty, fraternity, secularism, etc, which cannot be altered by the Parliament.

From the Archives | The Hindu’s report on the President’s Order in J&K, 1954

The senior lawyer responded that Article 370 was not the Basic Structure, but a “compact” entered into between two sovereigns [the princely State of Jammu and Kashmir and the Government of India] and engrafted in the Indian Constitution.

“Unlike the case in some other princely States, the Indian government did not take over Jammu and Kashmir… You [government] want to take over J&K, you could have done it as a political act, but how do you do it from within a constitutional structure?” he countered.

“On the lighter side, Mr. Sibal, are you saying you would have done it differently,” Justice Kaul asked.

But the Chief Justice said Mr. Sibal was treading on thin ice there. “But is it not possible that such a compact could be overridden by the sovereign of the succeeding State [Government of India],” Chief Justice Chandrachud asked.

“Having taken the position that we need the consent of the Constituent Assembly to abrogate Article 370, why and how did the President and the Parliament abruptly change tack in 2019? The Parliament is a creature of the Constitution. It has to function within the limits of the constitutional structure,” Mr. Sibal argued.

The proviso to Article 370(3) required the President to take the recommendation of the Constituent Assembly before declaring the provision inoperative.

Residuary power

“What happened to this residuary power of the State to decide its own fate,” Mr. Sibal asked.

He said the government, on August 5, 2019, “circumvented” the “residuary power” of the State by inserting Article 367(4)(d), which replaced the expression ‘Constituent Assembly of the State’ in the proviso to Article 370(3) with ‘Legislative Assembly of the State’.

He said the Parliament, which had arrogated to itself the role of the Legislative Assembly of J&K following the declaration of President’s rule in the State, converted itself into the J&K Constituent Assembly to do away with Article 370.

“Tomorrow, the Parliament can say it is the Constituent Assembly and do away with the Basic Structure… If you can say in principle that the Parliament can convert itself into the Constituent Assembly, then where do we go from there… Forget about this case, I am more worried about our future… The Constituent Assembly is a political process in the context of the aspirations of the people. It is the politics of the day which decides what a state should be like… Unlike Europe, our Constitution-making process involved the amalgamation of colours to be united as one — the Tiranga,” Mr. Sibal submitted.

Justice Kaul said it was “debatable” if Article 370 acquired permanence after the dissolution of the Constituent Assembly in 1957. It was also “debatable” if the NDA government followed procedure while abrogating the provision in 2019.

Mr. Sibal contended that the run-up to the abrogation was a series of events which culminated into an “act of paramountcy”.

The J&K Governor, a day after the BJP pulled out of the ruling coalition with PDP, imposed Governor’s rule in the State on June 19, 2018. The Governor dissolved the J&K Legislative Assembly on June 21, 2018. Six months later, on the very day of the expiry of the Governor’s rule, President’s rule was imposed under Article 356 citing the breakdown of constitutional machinery. The Parliament subsequently approved the President’s rule.

Jammu & Kashmir | From a State with autonomy to two Union Territories

“Who heard the people of Jammu and Kashmir in all this? The Centre steadily absorbed the power of the State to itself. The President became the Governor and the Parliament became the State Legislature. They did what they liked… They gave themselves consent to abrogate the Article and bifurcate the State. This is, according to me, a complete breakdown of the constitutional structure,” Mr. Sibal said.

Top News Today

Sign in to unlock member-only benefits!
  • Access 10 free stories every month
  • Save stories to read later
  • Access to comment on every story
  • Sign-up/manage your newsletter subscriptions with a single click
  • Get notified by email for early access to discounts & offers on our products
Sign in


Comments have to be in English, and in full sentences. They cannot be abusive or personal. Please abide by our community guidelines for posting your comments.

We have migrated to a new commenting platform. If you are already a registered user of The Hindu and logged in, you may continue to engage with our articles. If you do not have an account please register and login to post comments. Users can access their older comments by logging into their accounts on Vuukle.