Is Article 370 in a category beyond Parliament’s power to amend, asks SC

Thursday was the second day of the hearing on a clutch of petitions against the move to end J&K’s special status.

The query came as Sibal told the Bench, also comprising Justices S K Kaul, Sanjiv Khanna, B R Gavai and Surya Kant, that after the Constituent Assembly for the erstwhile state of J&K ceased to exist in 1957, there was no constitutional process left to touch Article 370 and changes, if any, could only have been made through a political process.

“How would you then put into place the constitutional machinery (for amendment) because there has to be one? It can’t be that because there is no Constituent Assembly, you cannot at all deliberate on a proposal for abrogation or modification of Article 370… Say in 2019, the President wishes to amend 370… What according to you would have been the right constitutional process to do it?” the CJI asked.

Sibal replied that “there is no constitutional process because the Constitution of J&K said in Article 147 that no such Bill can even be introduced in the legislature” and that’s why his argument is that Article 370 is permanent.

Justice Gavai asked if he is saying that from 1957, Clause 3 of Article 370 has become otiose.

Sibal said, “It can happen as a political decision, the J&K government and state legislature unanimously decide.” And added that there is no other way out.

Justice Kaul said, “According to you, neither the state legislature can do it, nor Parliament. What you are saying is that while other provisions of the Constitution may be capable of amendment… other than ones against Basic Structure, this is one provision which can never be amended.”

Sibal replied, “Let us put it differently: under which provision of the Constitution will they do it?”.

Justice Kaul said the “Constitution is also a live document” and asked “can we say there is no mechanism whatsoever to change it even when everybody wants to change it?… Does it not amount to equating it with the principle of Basic Structure itself that it can never be done?”.

To the query whether it would amount to creating a new category, apart from the Basic Structure, that would be incapable of being amended, Sibal said, “It’s not a new category. It’s a category that exists.”

“This is not Basic Structure. This is a compact between one sovereign and another drafted in our Constitution. It’s a constitutional compact, unlike other states … Junagadh didn’t agree and had to be taken over,” he said.

The CJI said, “There we are treading on thin ice. Because the moment we say this was just a recognition of a compact between one sovereign state and another which forms part of our Constitution, then such a sovereign compact is capable of being overridden by the sovereign of the succeeding state”.

Sibal said “that debate doesn’t arise here because there is a procedure here”.

He said if it indeed had to be changed, the government should have found a constitutional way of doing it.

Sibal, who argued Wednesday that only the Constituent Assembly of J&K could have taken a decision on Article 370 failing which it had become permanent, said Thursday that Parliament could not have taken upon itself the role of the Constituent Assembly to recommend abrogation.

“The danger” of accepting what the government had done, he said, is “tomorrow the Parliament says that we are the Constituent Assembly. They can do away with Basic Structure.”

Justice Gavai said B R Ambedkar, while presenting the final draft of the Constitution, too had touched on this point.

Sibal said he was also arguing what Ambedkar had said “that it is the parties’ partisan political measures that are carried through in the process in the form of legislation or otherwise which will be constrained by the provisions of the Constitution”.

Sibal also sought to assail the procedure adopted by the Centre to amend Article 370 and reorganise the erstwhile state into the Union territories of J&K and Ladakh and said, “You can’t introduce a Bill in Parliament at 11 o’clock, pass a resolution without anyone knowing about it… Why? Because you are subject to the constraints of the Constitution.”

The Governor, he said, could not have dissolved the Legislative Assembly without the aid and advice of the Council of Ministers. He had already suspended the Council of Ministers and then went ahead and dissolved the Assembly without such aid and advice, he said. The Governor, he said, also did not wait to see if any other political formation was capable of forming a government.

“The Governor and the Government were acting in tandem. They wanted to get rid of Article 370,” Sibal said. “This is an amazing piece of handiwork. It’s a mosaic of illegalities attractive enough to be junked,” he said.

On the reorganisation of the State into Union Territories, Sibal said the consent of J&K was not taken.

The CJI too said that for J&K, consent is needed while for other states only views are needed to introduce the Bill.

The arguments will resume August 8.