Is there no mechanism to abrogate Article 370 even when everyone in J&K wants it: SC

New Delhi: Is there no mechanism to abrogate Article 370 even when the people of Jammu and Kashmir want it, the Supreme Court asked on Thursday and wondered if the now repealed provision can't be touched will it not amount to creating a “new category” beyond the basic structure of the Constitution.

Hearing for the second day a clutch of petitions challenging the Centre's 2019 decision to abrogate Article 370 of the Constitution that accorded special status to Jammu and Kashmir, a five-judge constitution bench headed by Chief Justice DY Chandrachud wanted to know how the provision could be revoked in the absence of a constitutent assembly.

The bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, told senior advocate Kapil Sibal, appearing for National Conference leader Mohd Akbar Lone, there are only two highly debatable issues -- whether Article 370 acquired a permanent status with the cessation of the constituent assembly of Jammu and Kashmir and whether the procedure adopted for its abrogation was valid.

Sibal submitted there was an understanding between the Constitution framers and then Maharaja of Jammu and Kashmir Hari Singh who, while in favour of independence of his state, signed the instrument of accession to India due to the trouble caused by Pakistani infiltrators, under which Article 370 was inserted and no process can now be followed to abrogate it.

“The Constitution is a live document and it is not static. Can you say that there is no mechanism to change it (Article 370) even when everyone wants to change it? Then you are saying that this can't be changed even if all of Kashmir wants it,” Justice Kaul told Sibal.

Supplementing the views of Justice Kaul, the CJI asked Sibal, can Parliament, having powers under Article 368 to amend the Constitution, not change or abrogate Article 370.

“You are saying that there is a provision of the Constitution which lies even beyond the amending powers of the Constitution. So, if we accept your submission, we will be creating a new category apart from the basic structure of the Constitution,” Justice Chandrachud said.

Article 368 says, Power of Parliament to amend the Constitution and Procedure therefor: (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

In the landmark Kesavananda Bharati verdict of 1973, the top court had propounded the basic structure doctrine of the Constitution and held that certain fundamental features such as democracy, secularism, federalism and rule of law cannot be amended by Parliament.

Sibal stuck to his stand that in the absence of a constituent assembly, the provision has acquired a permanent status and the Constitution of Jammu and Kashmir says that no bill for modification or abrogation of Article 370 can be moved in the legislative assembly.

“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,” the CJI said.

Sibal said though many people feel that the provision should go there has to be a constitutional way of doing it and that he is not going to tell the other side how to do it.

“You can't introduce a bill in Parliament at 11 am and pass a resolution without anyone knowing about it,” the senior lawyer said, asserting the bill for abrogating Article 370 was passed without proper discussion.

He said abrogating the provision is a political process but it should fit within the constitutional scheme.

Article 370 has been titled as “Temporary provisions with respect to the State of Jammu and Kashmir” in Part XXI of the Constitution.

The top court had on Wednesday referred to proviso 3 of Article 370 which says, “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify, provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

Many feel since Article 370 itself spoke of the way it can become inoperative, the framers of the Constitution did not intend the provision to be permanent.
Sibal has been arguing that the constituent assembly, which existed for seven years between 1951 and 1957, alone was given the power to recommend modifications to Article 370. Since it ceased to exist after drafting the Constitution for Jammu and Kashmir, the provision acquired a permanent status.

He has said Parliament of India could not have assumed the powers of the non-existent constituent assembly and abrogated Article 370.