SC asks if Article 370 is being equated to Basic Structure and elevated beyond amending powers of Parliament

The Supreme Court on Thursday asked whether Article 370, which gave special status to Jammu and Kashmir, is being equated to the Basic Structure of the Constitution.

A Constitution Bench headed by Chief Justice of India DY Chandrachud reacted to Senior Advocate Kapil Sibal’s submission that there was no constitutional process available to abrogate Article 370, and the provision had attained a “permanent character” after 1957 when the Jammu and Kashmir Constituent Assembly dissolved, leaving the Article unchanged.

“The abrogation of Article 370 was a purely political act. There was nothing within the constitutional structure which empowered the President or the Parliament to abrogate Article 370,” Sibal, assisted by Advocate Nizam Pasha, argued.

“How can you say that the Parliament could not have exercised its preliminary amending powers to abrogate Article 370?” Chief Justice Chandrachud questioned Sibal.

Basic Structure

“Will that not amount to equating Article 370 with the principle of Basic Structure of the Constitution when you say the abrogation of Article 370 can never be done?” Justice SK Kaul asked. The Basic Structure embodies the essential features of the Constitution, like dignity, liberty, fraternity, secularism, etc, which cannot be altered by the Parliament.

The senior lawyer responded that Article 370 was not the Basic Structure, but a “compact” entered into between two sovereigns (the princely State of Jammu and Kashmir and the Government of India) and engrafted in the Indian Constitution.

“Unlike the case in some other princely States, the Indian government did not take over Jammu and Kashmir.You (government) want to take over J&K, you could have done it as a political act, but how do you do it from within a constitutional structure?” he countered.

“On the lighter side, Sibal, are you saying you would have done it differently?” Justice Kaul asked.

The Chief Justice said Sibal was treading on thin ice there. “But is it not possible that such a compact could be overridden by the sovereign of the succeeding State (Government of India),” Chief Justice Chandrachud asked.

‘Function within limits’

“Having taken the position that we need the consent of the Constituent Assembly to abrogate Article 370, why and how did the President and the Parliament abruptly change tack in 2019? The Parliament is a creature of the Constitution. It has to function within the limits of the constitutional structure,” Sibal argued.

The proviso to Article 370(3) required the President to take the recommendation of the Constituent Assembly before declaring the provision inoperative.

“What happened to this residuary power of the State to decide its own fate?” Sibal asked.

He said the government, on August 5, 2019, “circumvented” the “residuary power” of the State in the proviso by inserting Article 367(4)(d), which replaced the expression ‘Constituent Assembly of the State’ to Article 370(3) with the ‘Legislative Assembly of the State’.

He said the Parliament, which had arrogated to the role of the Legislative Assembly of J&K following the declaration of President’s rule in the State, converted itself into the J&K Constituent Assembly to do away with Article 370.

“Tomorrow, the Parliament can say it is the Constituent Assembly and do away with the Basic Structure. If you can say in principle that the Parliament can convert itself into the Constituent Assembly, then where do we go from there. Forget about this case, I am more worried about our future. The Constituent Assembly is a political process in the context of the aspirations of the people. It is the politics of the day which decides what a State should be like. Unlike Europe, our Constitution-making process involved the amalgamation of colours to be united as one — the Tiranga,” Sibal submitted.

‘Permanance debatable’

Justice Kaul said it was “debatable” if Article 370 acquired permanence after the dissolution of the Constituent Assembly in 1957. It was also “debatable” if the NDA government followed procedure while abrogating the provision in 2019.

Sibal contended that the run-up to the abrogation was a series of events which culminated into an “act of paramountcy”.

The J&K Governor, a day after the BJP pulled out of the ruling coalition with PDP, imposed Governor’s rule in the State on June 19, 2018. The Governor dissolved the J&K Legislative Assembly on June 21, 2018. Six months later, on the very day of the expiry of the Governor’s rule, President’s rule was imposed under Article 356, citing the breakdown of constitutional machinery. The Parliament subsequently approved the President’s rule.

“Who heard the people of Jammu and Kashmir in all this? The Centre steadily absorbed the power of the State to itself. The President became the Governor and the Parliament became the State Legislature. They did what they liked. They gave themselves consent to abrogate the Article and bifurcate the State. This is, according to me, a complete breakdown of the constitutional structure,” Sibal said.