New Delhi: In today's session, Senior Advocate Kapil Sibal argued that Article 370 could not be abrogated since the Constituent Assembly of Jammu and Kashmir had dissolved in 1957. The bench questioned if Parliament could have used its amending powers under Article 368 to abrogate Article 370.
Justice SK Kaul referred to the Constitution as a "living document" and inquired if there was no mechanism to change Article 370 even when everyone wanted to change it.
Justice Sanjiv Khanna suggested interpreting the term "Constituent Assembly" to include the legislative assembly. However, Sibal disagreed, asserting that there was no implied or express power to do so.
The bench sought the correct procedure for abrogation, but Sibal maintained that they were objecting to the procedure used and not providing solutions for abrogation.
The Chief Justice of India stressed the possibility of Parliament using its amending powers to abrogate Article 370 and questioned whether a new category, separate from basic structure, should be created for Article 370. Sibal continued to assert the need for a constitutional way to proceed with abrogation.
Here is the detailed hearing;
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 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.
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 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."
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 struct 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 told Sibal.
“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?"he asked.
How can you say that the Parliament could not have exercised its plenary amending power to abrogate Art 370?" CJI stressed.
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,” Sibal said.
The hearing adjourns…