The Supreme Court on August 3 asked petitioners challenging the amendment to Article 370 regarding the status of the erstwhile state of Jammu and Kashmir whether their argument that changes made to the provision in 2019 go beyond Parliament’s amending powers amounts to creating a new category, apart from the Basic Structure, which is also immune to amendment.
“You are thus claiming that there is a provision of the Constitution that is beyond the amending power of Parliament.” So, in addition to Basic Structure, we’re introducing a new category, and Article 370 falls into it?,” Senior Advocate Kapil Sibal, who appeared for the petitioners, was asked by Chief Justice of India D. Y. Chandrachud, who presided over a five-judge Constitution Bench.
The second day of hearings on a slew of petitions opposing the decision to revoke J&K’s special status began on August 3.
The question came as Sibal told the Bench, which also included Justices S. K. Kaul, Sanjiv Khanna, B. R. Gavai, and Surya Kant, that after the Constituent Assembly for the erstwhile state of Jammu and Kashmir ceased to exist in 1957, there was no constitutional process left to touch Article 370, and any changes, if any, could only have been made through a political process.
“How would you then put in place the constitutional machinery (for amendment) that must exist?” It cannot be that, because there is no Constituent Assembly, you cannot debate a proposal to repeal or modify Article 370… Assume the President wishes to alter 370 in 2019… What, in your opinion, would have been the proper constitutional procedure?,” The CJI inquired.
Sibal responded that “there is no constitutional process because the Constitution of J&K stated in Article 147 that no such Bill can even be introduced in the legislature,” which is why he believes Article 370 is permanent.
Justice Gavai inquired if he meant to indicate that Clause 3 of Article 370 has been in effect since 1957.
“Can we say there is no mechanism whatsoever to change it even when everyone wants to change it?” said Justice Kaul of the Constitution. Isn’t that equating it with the fundamental concept of Basic Structure itself, that it can never be done?”.
To the question of whether it would amount to creating a new category apart from the Basic Structure that could not be modified, Sibal responded, “It’s not a new category. There is such a thing as a category.”
“This isn’t the Basic Structure.” This is a treaty drafted in our Constitution between two sovereigns. In contrast to other states, it is a constitutional compact… Junagadh refused to accept and had to be taken over,” he explained.
“There we are treading on thin ice,” the CJI stated. Because the minute we say this was only a recognition of a sovereign agreement between one sovereign state and another that is part of our Constitution, such a sovereign contract can be overruled by the sovereign of the next state.”
“That debate does not arise here because there is a procedure here,” Sibal explained.
He stated that if it was necessary to amend it, the administration should have done so in a constitutional manner.
Sibal, who claimed on August 2 that only the J&K Constituent Assembly could have decided on Article 370, failing which it had become permanent, stated August 3 that Parliament could not have assumed the function of the Constituent Assembly in recommending abrogation.
“The danger” of adopting the Government’s actions, he continued, is that “tomorrow the Parliament declares that we are the Constituent Assembly.” They can get rid of Basic Structure.”
B. R. Ambedkar, according to Justice Gavai, also mentioned this point when delivering the final draught of the Constitution.
Sibal also criticised the Centre’s method for amending Article 370 and reorganising the former state into the Union territories of J&K and Ladakh, saying, “You can’t present a Bill in Parliament at 11 o’clock, pass a resolution without anyone knowing about it… Why? Because you are bound by the provisions of the Constitution.”
He said that the Governor could not have dissolved the Legislative Assembly without the assistance and recommendation of the Council of Ministers. He had already suspended the Council of Ministers and subsequently dissolved the Assembly without such assistance or guidance, he claimed. He further stated that the Governor did not wait to see if any other party group was capable of creating a Government.
“The Governor and the Government were working together.” “They wanted to repeal Article 370,” Sibal explained. “This is an incredible piece of craftsmanship.” “It’s a mosaic of illegalities that is appealing enough to be scrapped,” he remarked.
Sibal stated that the agreement of J&K was not obtained for the rearrangement of the state into Union Territories.
The CJI further stated that agreement is required for J&K, whereas views are required for other states in order to propose the Bill.
The further hearings will resume on August 8.