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Post-1957, President retains power to scrap Article 370: Supreme Court

Petitioners’ counsel Kapil Sibal says by abrogating Article 370 and carving a full-fledged State into union territories, Parliament took upon itself the responsibility of the State legislature

August 02, 2023 07:45 pm | Updated August 03, 2023 10:52 am IST - NEW DELHI

The shadow of a paramilitary jawan is cast on an armoured vehicle as he guards at a busy market in Srinagar on August 1, 2023. The Supreme Court on August 2, 2023 began hearing petitions challenging abroagtion of Article 370.

The shadow of a paramilitary jawan is cast on an armoured vehicle as he guards at a busy market in Srinagar on August 1, 2023. The Supreme Court on August 2, 2023 began hearing petitions challenging abroagtion of Article 370. | Photo Credit: AP

The Supreme Court on August 2 raised the question whether the President’s power to declare inoperative Article 370 of the Constitution, which granted special status to Jammu and Kashmir, will not continue to hold the field after the dissolution of the erstwhile State’s Constituent Assembly on January 26, 1957.

Clause (3) of Article 370 gave the President power to notify the Article “inoperative” or modify it. But a proviso had made it “necessary” that such a move would have to be recommended by the Jammu and Kashmir (J&K) Constituent Assembly.

“A Constituent Assembly is not a permanent body like the Parliament and the Supreme Court. No Constituent Assembly can have an indefinite life... The J&K Constituent Assembly was constituted for a specific purpose — to draft the Constitution of J&K. It became functus officio once the J&K Constitution was framed… This proviso making the Constituent Assembly’s ‘recommendation’ necessary before abrogation has no application. If the proviso ceased to operate, surely the substantive part of Clause 3 in Article 370 will remain,” Chief Justice D.Y. Chandrachud, heading a Constitution Bench, observed orally on the first day of hearing.

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

The CJI was responding to an argument by senior advocate Kapil Sibal that following the dissolution of the J&K Constituent Assembly, Article 370 cannot be revoked, as its concurrence was necessary to do so.

“Are you saying the President has blanket powers?” asked Mr. Sibal, appearing for Mohd. Akbar Lone and the lead lawyer for the petitioners’ side.

“Can the will of the people of J&K be caged or silenced in this fashion? There has been no representative democracy in J&K in the past five years… In the guise of restoring democracy, we have decimated democracy. The State of J&K historically represented a unique relationship unlike princely states which integrated into the Union. Can that unique relationship between two sovereigns be jettisoned like this?” he asked the court.

Mr. Sibal asked how the Parliament could have declared itself the legislature of J&K in place of the J&K Constituent Assembly in order to abrogate Article 370. “The Parliament was a creature of the Constitution. It could not have acted outside the Constitution,” he contended. The Governor took on the role of the ‘State government’ after keeping the State Legislative Assembly in suspended animation.

‘An exception’

Mr. Sibal said J&K was an “exception” to the amalgamation of princely states into the Union.

“This exception was grafted into the Constitution. You cannot suddenly jettison the people of J&K when two sovereigns had committed themselves to a process which was grafted into the Constitution under Article 370. Otherwise, what is the difference between J&K and the annexation of Hyderabad or Junagarh. Then it becomes an act of paramountcy,” Mr. Sibal submitted.

By abrogating Article 370 and carving a full-fledged State into union territories, Mr. Sibal said, the “Parliament took upon itself the responsibility of the State legislature”.

“Where is it said in the Constitution that the Parliament can do that? It was an exercise of political power. They said we know the will of the people of Jammu and Kashmir and we will do it,” he said.

Justice B.R. Gavai asked Mr. Sibal why Article 370 was mentioned in the Constitution only as a “temporary” provision.

“So, you are saying that though Article 370 was created as a temporary provision, it became permanently engrafted into the Constitution after 1957 with the dissolution of the Constituent Assembly,” Justice S.K. Kaul asked Mr. Sibal.

“Article 370 was there when India became a Republic. The Article mentions a Constituent Assembly for J&K. However, the Constituent Assembly was not convened until December 1951. It was then left to the people of J&K, through their Constituent Assembly, to decide if Article 370 ought to be abrogated at all. Article 370 was called ‘temporary’ because the Constitution always wanted the J&K people to decide their future… Article 370 could have been abrogated only by a vote of confidence in the Constituent Assembly,” he responded.

He said the Government of India, taking into consideration the peculiar circumstances under which the State acceded to India, had declared at the time that it was the people of the J&K, acting through their Constituent Assembly, who were to finally determine their own Constitution and the jurisdiction of Union of India regards the State.

‘Collaborative relationship’

Mr. Sibal highlighted that the Union and the State of J&K had enjoyed a “collaborative relationship with constant dialogue” through the years. This had led to many parliamentary laws being made applicable to J&K through successive Constitution Orders passed by the President with the consent of the J&K government.

He said there was no doubt that J&K was an integral part of India. “The Constitution of J&K itself says ‘we are an integral part of India’. The State of J&K was ad idem with the Union of India,” he submitted.

The senior lawyer said the “unique constitutional structure and the collaborative relationship” was abruptly brought to an end on August 6, 2019 with the abrogation of special constitutional status of J&K.

“Suddenly they said in Parliament ‘we are doing this at 11 o’clock’. Nobody knew about the abrogation in the Parliament. There was no consultation. The government, Parliament and ‘powers that be’ decided to do this one morning and tossed it [Article 370] out,” Mr. Sibal said.

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