Supreme Court hearing on Article 370 abrogation | Day 2

The Bench has risen for the day. The court will resume hearing on Tuesday (August 8).

Explaining the consequences of suddenly converting J&K into a Union Territory without taking the consent of the J&K government, Sibal says – ‘You absorb the powers of the State with yourself as the Executive, as well as the Parliament and the Legislature....The people who gave themselves this Constitution are left out of the process. This is essentially a breakdown of the constitutional structure.’

Justice Surya Kant asks Sibal what was the procedure adhered to when prior Constitutional Orders were passed with respect to J&K.

Sibal highlights that such Orders were issued through a Presidential notification after taking the consent of the J&K government.

CJI Chandrachud enquires about the procedure followed for the conversion of a State into a Union Territory. He asks if for the State of J&K, the consent of the J&K government is needed and with respect to other States, if only views are required to introduce such a bill.

Sibal responds in the affirmative.

Sibal submits that the quintessential object of Article 356 [President’s Rule] is to restore democracy and that it cannot be invoked for its decimation.

Sibal submits that ‘this was a political process, carried through constitutional means’. He pointed out that on November 21, 2018, the Governor dissolved the legislative assembly without the aid and advice of the council of ministers.

He adds that this is a purely political act and that the Governor and the Union government were working in tandem to invalidate Article 370.

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Addressing Sibal, Justice Gavai asks – ‘Your argument is that unless the view of the entire population of the State of J&K is taken into consideration, the abrogation cannot be done?

Sibal responds in the affirmative. He adds, ‘I understand that at some stage or another, this had to be done. But then it must follow the constitutional way to be doing it.’

Sibal submits that Article 370 does not fall within the purview of the ‘basic structure’ but it is a result of a compact between one sovereign and another unlike other princely states such as Junagadh.

Referring to this argument, CJI DY Chandrachud asks –’ Such a sovereign compact is not capable of being overridden?’

Posing more queries to Sibal’s line of argument, CJI Chandrachud says –’ You are saying that there is a provision of the Constitution which lies even beyond the amending powers of the Constitution. So we are creating a new category apart from the basic structure and Article 370 belongs to that?’

In response, Sibal says that it is not a new category and that it is a category that exists.

Summarising Sibal’s argument, Justice Kaul remarks – ‘What you are saying is that while other provisions of the Constitution may be capable of amendment through a process, other than the ones against basic structure, this is one provision which can never be amended?’

[The Basic Structure embodies the essential features of the Constitution, like dignity, liberty, etc, which cannot be altered by the Parliament].

Justice Kaul says that the Constitution is a living document and is not static. He asks Sibal- ‘Can you say that there is no mechanism to change it [Article 370] even when everyone wants to change it?’

Responding to the CJI’s query, Sibal says that there is no process to amend or abrogate Article 370, especially since the J&K Constitution specifies that no such bill can be introduced in the legislature.

Addressing Sibal, CJI Chandrachud enquires, ‘Your argument is that what is to be done by constituent assembly cannot be done by the legislative assembly. What happens when there’s no constituent assembly? Do you create a fresh one?’

The CJI asks Sibal to explain what would happen for instance in 1957 India that is after the completion of the tenure of the Constituent Assembly which was supposed to be in existence only from 1950 to 1957.

‘How would you then put into place the constitutional machinery? It cannot be that because there is no constituent assembly, you cannot at all deliberate upon a proposal for abrogation or modification of Artice 370’, the CJI adds.

Sibal contends further –’ How can you interpret a term in the Constitution which says ‘constituent assembly’ as a ‘legislative assembly’? I don’t understand. Under what interpretation can we do that? There is no implied or express power. That way we can change any definition.’

Sibal continues to refer to Kesavananda Bharati v. State Of Kerala (1973) and points out Dr. B.R. Ambedkar’s statement that the Constituent Assembly while drafting the Constitution did not act with partisan motives.

He added that if the Parliament were to become the Constituent Assembly then it would end up functioning in a partisan manner and thus the Parliament cannot take on the powers vested in the Constituent Assembly.

The Bench has reconvened after lunch. The hearing has resumed.

The Bench rises for lunch. The hearing will resume at 2 pm.

Sibal points out that the Presidential Order of 2019 used Article 368 to transfer power to recommend abrogation from the ‘Legislative Assembly’ to the ‘Constituent Assembly’. He cites the Kesavananda Bharati v. State of Kerala (1973) judgment to stipulate that it is not permitted. The paragraph from the judgment referred to is as follows-

‘This shows that the amending body under Article 368 cannot have the same powers as a Constituent Assembly. Even assuming that there is reference on the nature of power between enacting a law and making an amendment, both the powers are derived from the Constitution. The amending body has been created by the Constitution itself. It can only exercise those powers with which it has been invested. And if that power has limits, it can be exercised only within those limits.’

Enumerating the repercussions of this line of argument, Sibal says, ‘The point I am making is a fundamental point which affects the future of our country. If you in principle say, that a parliament can convert itself into a constituent assembly, then where do we go? Forget about this case. I am far more worried about our future.’

He adds that the Constituent Assembly is a political process and takes into account the aspirations of all those participating in the Constituent Assembly. It is the genesis of the politics of the day which determines what kind of Constitution we want, he says further.

To this, the CJI Chandrachud adds that even when the Parliament amends a Constitution, it is not exercising the powers of a Constituent Assembly.

‘It may be exercising a constituent power- the power to amend. But the power is restricted and you are subservient to the Constitution’, he says.

Sibal explains that there is a difference between the exercise of constituent power and the exercise of legislative power. He says that the Parliament while enacting a law, functions within the contours of the Constitution however the Constituent Assembly is not bound by the Constitution.

‘A constituent assembly can do what it likes till such time a Constitution is made. At no point in time in law, can a legislative assembly be converted into a constituent assembly- as a matter of law’, Sibal adds.

Elaborating further Sibal says that tomorrow the Parliament may say that it is the constituent assembly and they can basically do away with the basic structure of the Constitution this way.

Sibal submits that the Presidential Order of 2019 [C.O. 272] changed ‘Constituent Assembly’ to ‘Legislative Assembly’ and effectively gave the Legislative Assembly the power to recommend abrogation of Article 370. He highlights that as per the provisions of the J&K Constitution, the state’s legislative assembly did not itself have the power to abrogate 370. As a result, the 2019 Presidential Order could not have shifted the power to recommend abrogation to the Legislative Assembly.

CJI Chandrachud says that Article 147 of the J&K Constitution seems to indicate that the provisions of the J&K Constitution are to be treated as subordinate to the Indian Constitution.

‘Which is why, no amendment in the relationship between the application of the Indian constitution to J&K is applicable’, the CJI adds.

Referring to Sibal’s argument, Justice SK Kaul enquires – ‘Can the Constitution of J&K give permanency to Article 370 of the Constitution of India?’

Sibal submits that Article 147 of the J&K Constitution makes it clear that no legislature can move a bill to amend Article 370. He adds that the legislature cannot exercise such powers under Article 370(3).

Sibal refers to the Constitution of Jammu and Kashmir, 1956 (J&K Constitution), and outlines that the Governor has the power to dissolve the Assembly only on the aid and advice of the council of ministers and that there is no exception to this.

He highlights that when the Governor of J&K dissolved the State Assembly on November 21, 2018, there was no council of ministers.

Sibal refers to the Constitution (Application to Jammu and Kashmir) Order, 1954, and contends that through this Order nearly the entire Constitution was made applicable to J&K. The Order stipulates the provisions of the Constitution that would be applicable and the exceptions and modifications to it.

He points out that the 1954 Order was promulgated when the Constituent Assembly was still in existence.

‘They had a choice. They could have said no, we wish to abrogate 370 and be part of India like any other state. The assembly was constituted in 1951’, Sibal adds.

CJI Chandrachud notes that Sibal is correct in pointing out that the constitutional practice followed has been to selectively apply the provisions of the Constitution to J&K and that it was never treated as if all provisions are to apply. CJI says that the court also needs to hear the Attorney General of India on this point of law.

Addressing Sibal, Justice SK Kaul says, ‘Your submission is that Article 370 has acquired a permanent feature. That is debatable. Next, suppose it is not permanent, what is the manner of abrogating it? Is that procedure followed?’

Sibal submits that the President can exercise powers under Article 370 ‘de hors a modification’ which is an exercise of plenary power. However, even such an exercise of plenary power is to be done with the concurrence of the J&K government.

Sibal refers to the Constitution (Application to Jammu and Kashmir) Order, 1950 to contend that no part of the Constitution was made applicable to J&K, without modifications or exceptions. He submits that any such modifications always necessitated consultation with the J&K government.

CJI Chandrachud refers to​ Article 370 (1)(d)​ and remarks-

‘I was wondering, what (d) says that if the President is making a modification, exception- then you require a consultation or concurrence in terms of the second proviso.’

Extending this argument, the CJI asks Sibal what happens if the President under ​Article 370(3)​ is not making any ‘exception’ or ‘modification’ at all and if such a scenario would also require concurrence with the J&K government.

Sibal refers to The Constitution (Application to Jammu and Kashmir) Order, 1954 to demonstrate that the concurrence of the Jammu and Kashmir (J&K) government was always sought. The 1954 order stipulates that no bill related to the boundaries of J&K will be passed without the concurrence of the government.

‘That’s the solemn promise made- that you will not change the boundaries. And that’s with concurrence. And that’s exactly what they did without concurrence’, he adds.

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

Senior advocate Kapil Sibal continues arguing on behalf of the petitioner (Mohammad Akbar Lone of the National Conference Political Party).

The Bench has convened. The hearing has resumed.

Highlights from Day 1 of the hearing.

Supreme Court hearing on Article 370 abrogation | Day 1

The Supreme Court is scheduled to hear from August 2 a batch of petitions challenging abrogation of Article 370 of the Constitution that bestowed special status on the erstwhile State of Jammu and Kashmir. A five-judge constitution Bench headed by Chief Justice D.Y. Chandrachud will conduct day-to-day hearing from today.

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.

​Read here​

Jammu and Kashmir’s key regional parties, the National Conference (NC) and the Peoples Democratic Party (PDP), on Wednesday reposed “full faith in the judiciary” and sounded hopeful about the restoration of the special constitutional position of J&K, as the Supreme Court hears the petitions challenging the reading down of Article 370 in 2019.

​​Read here​​