Article 370 Hearing: SC Questions Whether Provision Is Untouchable, A New Category Beyond Basic Structure

During the hearing on Thursday (3 August), the Supreme Court questioned whether there is any mechanism to revoke article 370 even if the people of Jammu and Kashmir desire it.

The court also raised concerns about the possibility of creating a "new category" outside the basic structure of the Constitution if the now repealed provision cannot be touched.

A five-judge constitution bench, led by Chief Justice D Y Chandrachud, continued to hear a series of petitions challenging the Centre's decision to revoke article 370 of the Constitution, which granted special status to Jammu and Kashmir.

The bench expressed curiosity about the process of revoking the provision in the absence of a constituent assembly.

The bench, consisting of justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant, engaged in a discussion with senior advocate Kapil Sibal, who was representing National Conference leader Mohammad Akbar Lone.

The court highlighted two contentious issues: whether article 370 obtained permanent status after the dissolution of the constituent assembly of Jammu and Kashmir, and whether the procedure followed to revoke it was valid.

Sibal argued that there was an understanding between the Constitution framers and Maharaja Hari Singh of Jammu and Kashmir. While the Maharaja initially favoured the independence of his state, he eventually signed the instrument of accession to India due to the trouble caused by Pakistani infiltrators.

Sibal contended that article 370 was inserted as part of this agreement and cannot be revoked through any current process.

However, the bench stressed that the Constitution is a dynamic document that is not fixed in nature.

Justice Kaul pointed out to Sibal that claiming there is no mechanism to change it (article 370), even when there is a widespread desire for change, implies that it cannot be altered even if the entire Kashmir population wants it.

Echoing Justice Kaul's perspective, the Chief Justice of India (CJI) asked Sibal whether Parliament, which possesses the power to amend the Constitution under Article 368, is incapable of modifying or abolishing article 370.

Justice Chandrachud remarked that if Sibal's argument were accepted, it would mean acknowledging the existence of a provision in the Constitution that surpasses the amending powers of the Constitution itself. This would create a new category separate from the fundamental structure of the Constitution.

Article 368 states the power of Parliament to amend the Constitution and the procedure for doing so. It asserts that Parliament has the authority, despite anything mentioned in the Constitution, to amend, add, vary, or repeal any provision of the Constitution in accordance with the procedure outlined in this article.

In the 1973 Kesavananda Bharati verdict, the Supreme Court established the basic structure doctrine of the Constitution. It declared that certain fundamental features, such as democracy, secularism, federalism, and the rule of law, cannot be amended by Parliament.

Sibal, however, maintained his position that due to the absence of a constituent assembly, the provision of article 370 has obtained a permanent status. According to the Constitution of Jammu and Kashmir, no bill for modifying or abolishing article 370 can be presented in the legislative assembly.

The CJI then questioned how the constitutional machinery would be implemented in such a case. He emphasised that the absence of a constituent assembly should not prevent the consideration of proposals for the abrogation or modification of article 370.

Sibal acknowledged that while many people believe that the provision should be eliminated, there must be a constitutional method for doing so. He stated that he would not instruct the other side on how to proceed with this process.

While acknowledging that abrogating the provision is a political process, it is important for it to align with the constitutional scheme, Sibal claimed unconvincingly.

Part XXI of the Constitution designates article 370 as "Temporary provisions with respect to the State of Jammu and Kashmir."

Referring to proviso 3 of article 370, the Supreme Court highlighted that the President has the authority to declare the article inoperative or operative with exceptions and modifications, provided that the recommendation of the constituent assembly of the state is obtained before such a notification is issued.

There is also the evidence that the framers of the Constitution did not intend article 370 to be a permanent provision, as it outlined the process by which it could become inoperative, it was further discussed.

According to Sibal, the power to recommend modifications to article 370 was solely given to the constituent assembly, which existed from 1951 to 1957. As the assembly ceased to exist after drafting the Constitution for Jammu and Kashmir, the provision was considered permanent, he argued.

Sibal also argued that Parliament of India did not have the authority to assume the powers of the non-existent constituent assembly and abolish article 370.

Inquiring about the absence of a constituent assembly in Jammu and Kashmir, the Supreme Court questioned who has the authority to recommend the revocation of article 370.

The Supreme Court previously also raised the question of how a provision like article 370, which was originally intended to be temporary according to the Constitution, could become permanent after the Jammu and Kashmir constituent assembly concluded in 1957.

In 2019, a Constitution bench was assigned to handle various petitions challenging the abrogation of article 370 and the enactment of the Jammu and Kashmir Reorganisation Act, 2019.

This act resulted in the division of the former state into two union territories: Jammu and Kashmir, and Ladakh.

The hearing on this matter has been inclusive and is scheduled to resume on 8 August.