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' : Sibal

The 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 J&K should follow the correct procedure. 

The bench still seemed unconvinced and CJI DY Chandrachud asking–

"How can you say that the Parliament could not have exercised its plenary amending power to abrogate Art 370?"

Sibal then asserted that the petitioners were objecting to the procedure in terms of which Article 370 was abrogated. When the bench asked him what would be the correct procedure for the abrogation as per him, he responded by saying–

"We're not giving solutions to the other side that you can do this under 370. There's a limited constitutional issue before your lords- the power and the process. If there are other processes they can follow, that may or may not be valid. I understand that at some stage or another, this had to be done. But then it must follow the constitutional way to be doing it."

• Provisions Of Indian Constitution Were Made Applicable To J&K By COs With Concurrence Of State

In his arguments, Sibal drew the attention of the court to the Constitution (Application to Jammu and Kashmir) Order 1950 and the Constitution (Application to Jammu and Kashmir) Order 1954. Through these orders, Sibal sought to establish that there were substantive provisions of the Constitution of India that were to made applicable to J&K. These included the Fundamental Rights, the Directive Principles of State Policy and even Article 356 (which provides for the President's Rule) of the Indian Constitution. He added that the such incorporation was done through the Constitution Orders, with concurrence of the State of J&K. He said–

"This was being done between 1951-57 when the Constitution was being made. That's why I want to show you the 1954 constitutional order which superseded the 1950 order. And it'll show what was done. Nothing was ever done without concurrence except those items (the items over which Indian Govt has complete powers as per  the Instrument of Accession).Never."

• Is Consultation With State Government Always Required?: Bench Mulls Over Interpretation Of Article 370(1)(d)

This was followed by the bench mulling over the interpretation of Article 370, specifically in the context of the parliament's power to make laws in the State of J&K. CJI DY Chandrachud enquired what the distinction between "consultation with the Government of the State" referred to in Article 370(1)(b)(i) and in Article 370(1)(d) was.

For context, Article 370(1)(b)(i) provided the Parliament the power to make laws for the J&K limited to those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, were declared to correspond to matters specified in the Instrument of Accession (IoA). On the other hand, Article 370(1)(d) states that provisions of the Indian Constitution shall apply to J&K subject to such exceptions and modifications by the President. However, no order which relates to the matters specified in the IoA shall be issued without the consultation with the Government of the State. 

To the query of the bench, Sibal responded that Article 370(1)(b)(i) only dealt with the lists but Article 370(1)(d) dealt with the whole Constitution. 

Thinking out loud, CJI DY Chandrachud asked–

"What happens if the President is not making any exception or modification at all? Does that require concurrence or consultation of the State?"

CJI DY Chandrachud added–

"Article 370(1)(d) does not confer the power upon the Parliament to enact laws. It limits it in certain ways. It's a limiting clause. So if this is a limiting clause, is the power of Parliament to enact laws is traceable somewhere else?"

Sibal responded by drawing distinction between the two clauses and said–

"At that point the law has not been made. They're only stating the contours under which the Parliament will enact the law. It only delineates the contours...370(1)(d) does not talk about lists - it talks about Preamble, 356, fundamental rights- each of those orders requires the concurrence of the State. No orders are issued under Article 370(1)(b). That's the difference between 370(1)(b)(i) and 370(1)(d)."

At this juncture, the CJI presented Sibal with two possible constructions of Article 370(1)(d)- one, as per which only when the President was making exceptions or modifications, would consultation or concurrence be required with the State; the second, as per which consultation or concurrence would be required regardless of whether the President was making exception or modification or not. He asked– "The question is which is the most plausible construction?"

Sibal asserted that consultation or concurrence  of the State Government was required for the Presidential Orders applying the Constitutional provisions to J&K, regardless of whether there were modifications. 

Eventually, CJI DY Chandrachud concurred with his explanation and said–

"Mr Sibal, you're right that the constitutional practice which was followed since the adaptation orders proceeds on the basis that government selectively applied provisions of the Constitution to J&K. They never treated it as all if provisions apply. Clause (d) is susceptible to two interpretations. But the constitutional practice supports what you're saying. Of course we will hear the AG on that."

• Constituent Assembly Had Already Made Its Decision To Not Abrogate 370

In his next leg of arguments, Sibal reminded the bench that when the Constitution Order of 1954 was issued, the Constituent Assembly of J&K still existed. He said–

"They had a choice. They could have said no, we wish to abrogate 370 and be part of India like any other state. The Constituent Assembly was constituted in 1951. They chose not to."

In this context, Sibal referred to the Constitution of J&K. However, he was cut off by Justice Kaul who asked–

"Can the Constitution of J&K give permanency to Art 370 of Constitution of India?"

CJI Chandrachud added that as per Article 147 of the Constitution of J&K, its provisions were to be treated as subordinate to the Indian Constitution. Sibal emphasized that the relationship between J&K and India, as established by the Constituent Assembly, was intended to be permanent. He contended that the government's decision to amend the constitution order applicable to J&K and change its status to a Union Territory without following the prescribed process amounted to a political act outside the constitutional framework.

• Parliament Took The Role Of Constituent Assembly

Another argument raised by Sibal today was that the Parliament, through its actions, converted the Legislative Assembly to the Constituent Assembly. Explaining the same in a step by step manner, he stated that since the Constituent Assembly had already dissolved in 1957, the first Presidential Order replaced the term "Constituent Assembly" in Article 370(3) with the "State Legislative Assembly". Then, the Parliament assumed the role of the Legislative Assembly owing to the ongoing President's Rule in J&K. In this manner, the parliament became the Constituent Assembly. Stating that the government, "instead of clapping by two hands, clapped by one hand", he said that the act was "unique and unheard of".

Sibal expressed deep concerns over the potential ramifications of accepting the argument that the Indian parliament could convert itself into a Constituent Assembly and warned that such a precedent could undermine the fundamental principles of democratic governance and the basic structure of the Indian Constitution.

He pointed out that while the Parliament had the power to amend the Constitution, it was still bound by the constitutional framework and operated within its contours. However, the Constituent Assembly, being untrammelled, held a unique position in formulating a new constitution without any pre-existing restrictions. He said–

"There is a clear distinction between the exercise of constituent power and the exercise of legislative power. Parliament while enacting a law, functions within the contours of the Constitution. Constituent Assembly has no Constitution in place. A constituent assembly can do what it likes till such time a Constitution is made. At no point in time in law, can a legislative assembly be converted into a constituent assembly- as a matter of law."

He added–

"Tomorrow the Parliament says that we're the constituent assembly. They can do away with basic structure. The point I'm making is a fundamental point which affects the future of our country. If you in principle say, that a parliament can convert itself in a constituent assembly, then where do we go? Forget about this case. I'm far more worried about our future."

However, CJI DY Chandrachud expressed his reservations about this argument and said–

"But equally, to completely divorce the power of amendment from the political process inherent in the amending power would not be appropriate."

Sibal responded–

"I agree, we are not saying that we can't amend. When parliament amends, it's not converting itself in a Constituent Assembly. And it's bound by constitution."

• On Ratification Of The Bill J&K Reorganisation Bill

Regarding the bifurcation of J&K into Union Territories, Sibal argued that the State of J&K's consent was needed to even introduce such a bill in the Parliament. He said–

"Ratification is of the state so there are two authorities - one parliament passing the law and then the state authority ratifying it. You can't take over both. It's like clapping by one hand."

He stated that by dissolving the state assembly and converting the State into Union Territories, the link between the central government and the State was lost, and the powers of the State were absorbed entirely by the Centre. This, according to Sibal, undermined the democratic principles and constitutional structure that were in place. He said–

"You absorb the powers of the state with yourself as the executive, as well as the parliament and the legislature. And you decide without reference to any other institution. So you give yourself consent. The people who gave themselves this constitution are left out of the process. This is essentially a break down of the constitutional structure."

With this, the hearings were concluded for the day.