Article 370 | Argument That Resurrection Of Article 370 Would Violate Basic Structure Too 'Far Fetched': Supreme Court [Day 15]

On the fifteenth day of the Article 370 proceedings before the Supreme Court Constitution Bench, the Union Government, along with other respondents drew their arguments to a close before a bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. The bench closed the arguments of the respondents' side. During the hearing, the bench expressed disagreement with the argument raised by Senior Advocate V Giri that if Article 370 was resurrected, that would be violative of the basic structure of the Indian Constitution. The bench found this to be an untenable argument with CJI stating– "This might be a little too far fetched because then that would be to postulate that original Article 370 was violative of basic structure."Article 370 Was Not In Sync With General Federal Features Of Indian Constitution: Senior Advocate V GiriContinuing his submissions from the previous hearings, Senior Advocate V Giri argued that Article 370 carved out an area for Jammu and Kashmir which was not 'in sync' with the general federal features of the Constitution for the rest of the country. He stated that the Article set out the relationship between Union and Jammu and Kashmir at a plane which was different from the relationship between Union and all other states. He added that when Article 370 was abrogated by Constitutional Order 272 and all the provisions of the Indian Constitution became applicable to Jammu and Kashmir, the state of Jammu and Kashmir became a state 'at complete par with all other states'. He then stated that if Article 370 was resurrected, that would be violative of the basic structure of the Indian Constitution. However, the bench expressed its reservations towards accepting the argument with the CJI remarking–"This might be a little too far fetched because then that would be to postulate that original Article 370 was violative of basic structure."When Giri insisted that Article 370, at the time it existed, had already been challenged on the ground, CJI said– "You can't invite us to hold in your favour on an unstateable proposition."Extraordinary Power Of President Under 370(3) Must Be Read Without Any Restrictions: ASG KM NatarajAdditional Solicitor General KM Nataraj, appearing for the Union asserted that Article 370 was the only provision in the Constitution which had 'a self destruction mechanism'. He further argued that the Article did not confer any kind of rights on the citizens of J&K and in fact, the continued application of Article 370 discriminated between citizens of Jammu and Kashmir and other citizens of the nation and thus, opposed the basic structure of the Indian Constitution. Juxtaposing Article 370 with Article 368, the ASG submitted that the doctrine of federalism had no application in so far as the process under Article 370 was concerned. He stated that Article 368 recognised federalism in the context of an amendment to Constitution and also introduced the collective consent theory. However, Article 370, used the word 'recommendation' and thus, he stated that "reading these two articles together in a different language will make either of them redundant."Justice Khanna, clarifying the submissions of the ASG remarked–"Mr Nataraj, what you're probably trying to highlight is that the argument that the federal structure gets affected because of abrogation of 370 should not be accepted for the reason that the federal structure is protected by 368."ASG Nataraj responded in an affirmative and underlined that the power provided to the President under Article 370(3) was a "unique, extraordinary power" and consisted of the the flavours of constituent power, executive power, and legislative power- all combined in one. Thus, he argued that such an extraordinary power should not be read with any limitations and it must be given the fullest meaning.CO 272 Didn't Make A Substantive Change, Just Recognised An Implicit Provision: Senior Advocate Mahesh JethmalaniSenior Advocate Mahesh Jethmalani was appearing for intervenors who were members of the Gujjar Bakerwal community in Jammu and Kashmir. The Gujjar Bakerwal is a scheduled tribe and constitutes over 73.25% of the total Scheduled Tribe population of Jammu and Kashmir, informed Jethmalani to the bench. He stated that the reason why the community supported the abrogation of Article 370 was because prior to the amendment, the provisions of the Indian Constitution pertaining to scheduled tribes were never applied to Jammu and Kashmir.In his arguments, Jethmalani asserted that as far as political sovereignty was concerned, it rested with the Union government and the same could be proved by 'a simple look at the Preamble' of both Indian and Jammu and Kashmir Constitution. He underlined that while the word 'sovereign' was a key feature in the Indian Constitution, in contrast, the Jammu and Kashmir Constitution's Preamble made no mention of sovereignty and even defined the existing...

Article 370 | Argument That Resurrection Of Article 370 Would Violate Basic Structure Too 'Far Fetched': Supreme Court [Day 15]

Padmakshi Sharma

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