J&K Case | Supreme Court Explains 'Heart Of The Matter' : Could Union Have Amended Article 370 Through Article 367 Route? [Day 12]

The twelfth day of the Constitution bench proceedings concerning the abrogation of Article 370 saw plenty of interesting queries being raised by the bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. In the proceedings, the bench also made oral remarks pertaining to what it referred to as the "heart of the matter", that is, could the Union Government have utilised Article 367 to amend Article 370 in order to repeal the special status of Jammu and Kashmir.Can Union Government Utilise Article 367 To Amend Article 370?For context, Article 370(3) prescribes that the President can issue an order to declare Article 370 inoperative. The proviso to Article 370(3) states that the recommendation of the J&K Constituent Assembly is necessary for the President to issue such an order rendering Article 370 void. However, the State's Constituent Assembly was dissolved in 1957. Thus, the Union wanted to amend Article 370(3) to remove the obstacle of requiring the J&K Constituent Assembly's concurrence for the abrogation. In order to do so, the Union took the Article 367 route. Article 367 is a provision related to interpretation clauses within the Constitution. In this case, the Constitutional Order 272 issued by the President on August 5, 2019 amended the definition clauses in Article 367 to hold that "Constituent Assembly of J&K" would mean the "Legislative Assembly of J&K" and "Government of J&K" would be construed as "Governor of J&K". This Presidential Order was issued invoking the power under Article 370(1)(d) which empowers the President to apply the Indian Constitution to J&K with "exceptions and modifications" as specified.The petitioners in their arguments had submitted that if this course of action was allowed, then it would mean that the Executive can change the meanings of words with a simple amendment to Article 367, instead of following the process under Article 368, which prescribe that ratification by majority of state assemblies are required for amending certain core provisions of the Constitution. Thus, under the guise of amending the definition clauses, substantive amendments could be carried out.In this context, the CJI asked the Solicitor General (SG) Tushar Mehta, who was appearing for the Union if the abrogation of Article 370 could stand independent of the modification made to Article 367. He further inquired if Article 370 could be altered by a process other than the one prescribed under Article 370(3) through the Article 367 route. Justice Khanna added–"The question is that by amending Article 367, aren't you in fact amending Article 370 without taking recourse to Article 370(3)? Because Article 370 can only be amended in terms of Article 370(3)."The SG responded to this by stating that if Article 367 was not modified, it would have the effect on Article 370 becoming a permanent feature of the Indian Constitution, as sans the Constituent Assembly, Article 370 could never be modified. It may be recalled that Senior Advocate Kapil Sibal, appearing for the petitioners, had also raised a similar argument and had stated that Article 370 had presumed permanence as the Constituent Assembly of J&K had dissolved without recommending its abrogation. CJI Chandrachud remarked–"The argument of the other side is that you can then take recourse to sub-clause (d) of clause (1) in a situation where you have to amend any other provision of the Constitution other than Article 370. 370(1)(d) refers to "other provisions of the Constitution". Other provisions according to you would include 367. Possible. But can you use 367 to bring about an amendment to 370? If you do that, are you not really doing that to amend 370 itself? This is the heart of the matter."The query from the bench can be broken down for simpler understanding as follows. Since the Constitutional Order 272 changed the meaning of "Constituent Assembly" as "Legislative Assembly", this effectively resulted in an amendment to Article 370(3), because it now means that Article 370 can be abrogated with a recommendation of the Legislative Assembly. So, the query of the bench was that if Article 367 could be used to make such a substantive change.The SG reiterated that in the absence of a Constituent assembly, Article 370(3) could never come into effect and Article 370 would get the status of a permanent provision and therefore, through the Article 367 mechanism, Article 370 has been modified.To this, the CJI remarked–"That's the point with the caveat that the use of Article 367 mechanism to modify mechanism was always with the concurrence (of the J&K Government)."To this, the SG stated that the present exercise of modifying Article 367 was also carried out with concurrence and the only difference was that the concurrence in the present case was of the J&K Governor as the council of ministers did not exist at the time and the governor had to step into the shoes of the...

J&K Case | Supreme Court Explains 'Heart Of The Matter' : Could Union Have Amended Article 370 Through Article 367 Route? [Day 12]

Padmakshi Sharma

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