Article 370 Case : Live Updates From Supreme Court [Day 6]

Dhavan: It collapses democracy in a State!

Dhavan: It must relate to 356. Whatever is required to materialise 356, it must be related to that. "Necessary" or "desirable" are not carte blance powers of president. Could he have suspended Part III under 356? It has to be given a limited meaning.

CJI: The proviso says that you will not suspend anything pertaining to a HC, or you'll not assume to yourself powers of HC during the operation of 356. So where it wanted to restraint, it did so.

CJI: The proviso seems to indicate that if the constitution wanted to exclude a power from the authority to suspend a provision of the constitution, that has been specifically defined.

Dhavan: I have never seen a provision which actually uses it to take away a mandatory provision. This is exceptional. If you expand 356(1)(c), then you will say that the president has a card to amend any part of the Constitution.

Dhavan: 356(1)(c) has to be read with mandatory provision which it cannot dilute.

CJI: Suppose the president in a proclamation suspends the operation of any provision of the Constitution - is that amendable to be challenged on the ground that it is not incidental or supplemental? Or are these words widening the ambit of the first part of 356(1)(b)?

CJI: "Including" would mean that what was otherwise not a supplementary or incidental provision, it is within the ambit of presidential proclamation. Isn't it?

CJI: Normally when the legislature uses the word "means" and "includes"- it's an indication of expanding the power. So when the constitution says "make incidental and supplementary provisions" and then says "including"- this seems to widen the ambit of earlier part.

Dhavan: The suspension in this case goes beyond supplementing. It goes to actually take out a mandatory provision.

CJI DY Chandrachud: How do we deal with Art 356(1)(c)? So the president has the power to suspend certain provisions of the constitution during the operation of proclamation under 356.