Article 370 Case : Can't Parliament Exercise Its Amending Powers To Abrogate J&K Special Status? Supreme Court Asks [Day 2]

The Supreme Court today resumed its hearings in the batch of petitions challenging the dilution of Article 370 of the Constitution of India which stripped the erstwhile state of Jammu and Kashmir (J&K) of its special status. The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant heard arguments raised by Senior Advocate Kapil Sibal, who was appearing for NCP MP Mohammad Akbar Lone.During today's proceedings, Sibal reiterated his submission that Article 370 could not be abrogated since the Constituent Assembly of Jammu and Kashmir, which was entrusted to recommend its abrogation or modification, had already dissolved in 1957. In response, the bench asked if the Parliament cannot abrogate Article 370 using its amending powers under Article 368."You're saying that there is a provision of the constitution which lies even beyond the amending powers of the constitution?...How can you say that the Parliament could not have exercised its plenary amending power to abrogate Art 370?", CJI asked.Justice SK Kaul, on a similar line remarked that the Constitution was a "living document" and asked Senior Advocate Sibal if he was saying "that there is no mechanism to change it (Article 370) even when everyone wants to change it?" The court also inquired from Senior Advocate Kapil Sibal about what, in his view, would be the appropriate procedure for abrogating Article 370. In response, Sibal chose not to give a definitive answer and said that the purpose of the hearing was not to provide answers regarding the proper method to abrogate the Article but to decide the validity of the course already adopted by the Central Government. This article provides with all arguments raised before the bench today. 'Constituent Assembly' cannot be interpreted as 'legislative assembly' : SibalThe exchange regarding the permissibility of Article 370's abrogation began when Justice Sanjiv Khanna asked Sibal–"Why can't we accept the argument that the Constituent Assembly could in a sense be interpreted to include legislative assembly, keeping in mind the fact that the Parliament could have very well amended Art 370 also? If the objective was not to put Article 370 in a straitjacket, which is obviously clear; it's a flexible article..."Sibal contended that Article 370 was only flexible at the instance of the Constituent Assembly, not at the instance of Parliament. Further, the Indian Constitution makers had contemplated and specifically added the word "constituent assembly" in Article 370(3) instead of legislative assembly. To this, Justice Khanna remarked, that the same could be because at the time the Indian Constitution was being framed, there was no legislative assembly for the State of J&K. He reiterated his query and asked–"So when we interpret the term Constituent Assembly, can we interpret it to include legislative assembly?"Sibal responded in a negative and said–"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's no implied or express power. That way we can change any definition."The bench pressed on with its queries with the CJI asking that in such a situation, what would happen post 1957 when the Constituent Assembly became dissolved. He asked–"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 Article 370. We see what process they followed. What according to you would be the right process to do it?"At the outset, Sibal responded by stating that there was no process which could abrogate Article 370 as the article had assumed permanence post the dissolution of the Constituent Assembly of J&K. However, the bench did not seem satisfied with the same. Justice Kaul orally remarked–"What you're saying that while other provisions of the Constitution may be capable of amendment through a process, other than ones against basic structure, this is one provision which can never be amended? The Constitution is also a live document. Can you say that there is no mechanism to change it even when everyone wants to change it? Then you're saying that this can't be changed even if all of Kashmir wants it."CJI DY Chandrachud added–"Can parliament not have amended the constitution exercising the 368 power to abrogate 370? You're saying that there is a provision of the constitution which lies even beyond the amending powers of the constitution? So we're creating a new category apart from basic structure and 370 belongs to that?"At this juncture, Senior Advocate Gopal Sankaranarayanan stepped in to answer the bench's queries and contended that Article 370(1) still offered a mechanism to make the entire Constitution applicable to J&K with the consent of the government, however, the assimilation of ...

Article 370 Case : Can't Parliament Exercise Its Amending Powers To Abrogate J&K Special Status? Supreme Court Asks [Day 2]

Padmakshi Sharma

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