The Supreme Court began hearing petitions challenging the dilution of Article 370, which removed Jammu and Kashmir’s special status. Senior Advocate Sibal argued on the ‘temporary’ nature of Article 370 and the need for accordance with the Constituent Assembly for its abolishment. The court questioned the permanence of Article 370 after the Constituent Assembly ceased to exist. The case has significant implications for the region’s governance.
The hearing witnessed discussions on the ‘temporary’ nature of the provision.
The Supreme Court today commenced hearing the series of petitions challenging the dilution of Article 370 of the Indian Constitution, which stripped Jammu and Kashmir (J&K) of its special status. The Constitutional Court of India, composed of Chief Justice D. Y. Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, B. R. Gawai and Surya Kant, is hearing the matter.
All Indian laws were applicable to J & K
Senior Advocate Sibal initiated his argument by reiterating the highly significant of the trial, characterizing it as “historic in many ways.” Highlighting the uniqueness of J & K’s correlation with India, Sibal queried may be a correlation may be disposed of suddenly and unexpectedly.
He stated that the matter would consist of the following four – i) the Constitution of India; ii) the Constitution of India as applicable in J&K; iii) the Constitution of J&K and; iv) Article 370.
Indian Parliament can’t convert itself into the Constituent Assembly:-
Sibal those and debated upon the precondition of accordance with the Constituent Assembly of J & K for the abolishment of Article 370.
He and stated that the Indian legislative body, under the present political template, couldn’t even turn itself into a Constituent Assembly. He said–
“Today, the Indian parliament cannot say by a resolution that we are the Constituent Assembly. As a matter of law, they cannot because they’re now confined by the provisions of the Constitution. They must adhere to the basic features of the Constitution. They can’t suspend, except in emergencies or external invasions, the fundamental rights of people. That’s also limited by provisions of the Constitution. The executive can’t do things contrary to the law. And the judiciary declares the law. But no parliament can convert itself into a Constituent Assembly.”
Special Status of J&K and the History of IoA
Continuing his argument, Sibal offered a greater perspective encompassing the Instrument of Accession (IoA) and the part of the constitutional marriage between the State of J & K and the Indian regime.
Sibal whereupon underlined the special aspects of the IoA, which allowed the State of J & K decedent’s abilities, unlike many of the other Indian provinces, creating it a “truly federal marriage”.
Article 370 Assumed Permanence Post Dissolution of Constituent Assembly:-
In an interesting development of reasons, Senior Advocate Sibal clarified the meaning of Article 370 being a “temporary provision”. He noted that Article 370 seemed to be termed a temporary requirement all because when the Constitution of India was brought into effect, the Constituent Assembly of Jammu and Kashmir were not there.
However, the CJI expressed scepticism about the connectivity of Article 370 after the Constituent Assembly’s descriptor. CJI Chandrachud pointed out that Article 370 (3) consisted a non-obstante provision and it seemed to overpower the entire Article 370, including its special provisions. He asked –
“So therefore, with the end of the 7 years, the very institution of constituent assembly lapses. Then what happens to the proviso?… What happens when the constituent assembly comes to an end? No constituent assembly can have an indefinite life…the proviso to clause (3) refers to the recommendation of the Constituent Assembly of the State…the only safeguard is that before President abrogates, the recommendation of the Constituent Assembly is required. What happens when Constituent Assembly ceases to exist? If the proviso ceases to operate, by virtue of the fact that the tenure of Constituent Assembly has ceased to exist, surely the substantive part of (3) still continues?”
Sibal asserted that something like this non-obstante mandate had only been reasonable during the emergence of the Constituent Assembly. He said-
“What was the reason to mention Constituent Assembly in Article 370 when it was not even in place? They could have said Government of J&K. Why did they include the term constituent assembly in Article 370(3)?”
Justice Surya Kant even further questioned why Article 370 is also included under the Chapter of ‘temporary and temporary provisions’ of the Constitution. Access to this technology restated that the ephemeral nature of Article 370 seemed to be linked to the life of the Constituent Assembly, which must have a role in its willful disobedience.
However, CJI DY Chandrachud, ostensibly unimpressed, said-
“Acceptance of sovereignty of the dominion of India was complete. They accepted the sovereignty for all intents and purposes. That acceptance was complete but they reserved some rights over certain legislative subjects. So the accession was complete. Consistent with that, they said that in clause (3), the President would have the right to abrogate 370.”
Would it not say that Article 370 can not ever be overruled, inquired Justice Kant,
Sibal replied on this –
“Yes! That’s the whole point. That’s our case. That is why I said that the formation of a Constituent Assembly is a political exercise…You cannot jettison the people of J&K and decide. Then what is the difference between this and the act of crown or annexation of Junagadh or Hyderabad? If you have agreed to a process which two sovereign authorities have accepted then you must follow it.”
At this juncture, Justice SK Kaul asked-
“So if an elected assembly wants to abrogate article 370 then also it is not possible?”
Sibal responded–
“Not possible!”
Why did Constitution Makers put Article 370 as a ‘temporary’ provision under Part XXI?: Bench mulls
Following Sibal’s submissions on the assumed permanence of Article 370, the CJI asked–
“But that is only on the basis that 370 becomes permanent after Constituent Assembly ceases to exist. If the hypothesis is not accepted then the only way is to assert that a pre-independence agreement has to be enforced. Can the parliament of the state have limited powers in the state?”
The court then went through the structure and framing of Article 370(1). In doing so, the CJI orally remarked–
“In other words, the whole area of concurrence and consultation is confined to the entries of the Union and the Concurrent list. That’s clear from the scheme. The President is given an untrammelled power to specify which provisions of the Constitution which apply to J&K. That is conditioned to the first and the second proviso. These provisos don’t refer to substantive provisions of the Constitution at all. They only refer to matters governed in Union and concurrent list.”
However, Sibal asserts that under Article 370, the Ordinary Legislative Power of the Indian Parliament is limited to matters of the Union List and the Concurrent List which, after consultation with the Government of India, state government, declared by the president to correspond to the questions in the IoA. He said –
“So the parliament can only make laws in matters present in the list and that also in consultation. That’s the first limb of the argument – the restriction on law-making power.”
The CJI once again asked whether the power under Article 370 (3) would continue for the foreseeable future if the Constituent Assembly now not remained. Sibal maintained that Article 370 was labelled temporary because the ultimate authority to abrogate it was intended to rest with the Constituent Assembly of J&K. He pointed to the clause explicitly stating that the “recommendation of the Constituent Assembly will be a condition precedent” for any such decision.
CJI DY Chandrachud described that Part XXI of the Constitution would have three expressions- temporary, transitional and special. He stated that the term “transitional” Is not being used inside any headnote or modest remember. But that said, the concepts “temporary” and “special” were being used in peripheral observations. He added-
“(Article) 370 specifically says ‘temporary’. So can we then say that power under clause (3) goes once Constituent Assembly comes to an end? Convert this to a permanent provision even though it was not intended to be? Why did the constitution put it in Part XXI?”
Residuary Powers lie with the State of J&K
In his arguments, Sibal also contended that all residuary powers, as per the IoA itself, lied with the State government of J&K. Upon a query from the bench in this context, Sibal contended–
“In Kashmir, it (residuary power) was there from the beginning. It’s in the IoA. Residuary power was with the state legislature and state government throughout – that was the condition on which the accession took place. I’ll demonstrate that.”
Conversion of State into Union Territory Impermissible
Sibal contended that such a radical change effectively moved the region away from representative democracy and placed it under the direct rule of the central government. He said–
“So you move away from representative democracy, convert it into a Union Territory under your direct rule, and 5 years have passed!”
He also raised concerns about the absence of state elections despite parliamentary elections being conducted just three months after the bifurcation. He said–“Kindly note one thing- in May 2019, there were parliamentary elections in the State of J&K. Three months after this! This happened on the 6th of August and in May – parliamentary elections. So you can hold parliamentary elections but you will not hold state elections?”
