“Tomorrow if the Parliament says it is the Constituent Assembly, can it do away with the basic structure of the Indian Constitution?” ask petitioners on Day 2 of Article 370 hearings

On Day 2 of the hearing in a batch of petitions challenging the August 5, 2019 decision to put an end to the autonomy guaranteed to J&K under Article 370 of the Constitution, the five-judge Constitution Bench of the Supreme Court and the petitioner's counsel continued debating whether Article 370 assumed a "permanent constitutional character" the moment the Constituent Assembly of Jammu and Kashmir ceased to exist in 1957.

AT one point on Day 2 of the hearings In Re Article 370, while walking the five-judge Constitution Bench through the arguments against the changes brought about in the constitutional status of J&K in 2019, a bemused Kapil Sibal termed them a "mosaic of illegalities attractive enough to be junked".

Sibal is representing lead petitioner Mohd. Akbar Lone, a National Conference leader and former speaker of the Jammu and Kashmir (J&K) legislative assembly.   

"There must have been great constitutional advisors, My Lords, who would have thought of this very complicated handiwork which found itself in our Constitution," he wondered aloud.

A brief recap

On the first day of the hearings yesterday, the five-judge Bench of the Supreme Court headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud had debated two core issues relating to Article 370 of the Constitution of India with senior advocate Kapil Sibal.

The Bench also comprises Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant.

The first issue is whether Article 370 of the Indian Constitution assumed a permanent character post-1957 when the Constituent Assembly of J&K ceased to exist.

The second issue is: To what extent can the President of India exercise powers under clause(d) of Article 370(1) to extend other provisions of the Indian Constitution as applicable to J&K? To determine this, the interpretation of different provisions of Article 370 has to be examined.

Interpretation of Article 370

Today's hearing began with Sibal addressing the second point.

The court has been discussing the powers conferred on the Indian Parliament in respect of clause(b) and clause(d) of Article 370(1) .

Clause (b)(i) of Article 370(1) limits the powers of the Indian Parliament to make laws for J&K under the Union and Concurrent Lists of the Seventh Schedule of the Indian Constitution in respect of subjects mentioned in the Instrument of Accession in "consultation" of the J&K government.

Clause (b)(ii) of Article 370(1), on the other hand, extends the power to the Indian Parliament to make laws for J&K under the Union and Concurrent Lists of the Seventh Schedule of the Indian Constitution is respect of matters not mentioned in the Instrument of Accession with the "concurrence" of the J&K government.

At the outset of the hearings today, the CJI offered a few observations on construction of Article 370: "Clause(b) of Article 370(1) does not confer the power upon the Parliament to enact a law for the State of J&K… The power [to make a law] is somewhere else, apart from clause(b) [of Article 370(1)]". 

"Clause(b) [of Article 370(1) only] recognises the power of the Parliament to make laws for the State."

Clause(b) of Article 370(1) is a "limiting" clause, the CJI pointed out.

In doing so, he made a distinction between 'conferring' and 'recognising' a power.

Jumping into this debate, Justice Kaul averred that clause(b) of Article 370(1) is a limiting clause. Justice Kaul added that the power of the Indian Parliament to make laws for J&K under clause (b)(i) of Article 370(1) is limited on two counts.

First, the power of the Parliament to make laws applicable to J&K is limited to matters in the "Union and Concurrent Lists".

Second, "consultation with the government of State of [J&K]" is a prerequisite in respect of those matters in the Union and Concurrent Lists which "correspond to matters specified in the Instrument of Accession".

Two plausible constructions of clause(d) of Article 370 suggested by the court

The CJI offered two possible constructions of clause(d) of Article 370(1).

First, if the President is making "exceptions and modifications" under clause(d) of Article 370(1) in respect of the other provisions of the Indian Constitution and if such exceptions and modifications relate to a subject specified in clause(b)(i) of Article 370, a "consultation" with the J&K government is required.

For any matter not relating to clause(b)(i) of Article 370, "concurrence" of the J&K government is required.

Second, even if the President is not making any exceptions and modifications but some provision of the Indian Constitution is being made applicable to J&K, the requirement of either "consultation" or "concurrence" of the J&K government is still necessary.

After a brief discussion with no conclusion, the court moved on to discuss one of the core issues it had flagged yesterday.

Petitioner: Article 370 is understood in phases: transitory, temporary and continuous

The second issue, which Justice Kaul added today, is to assess what happens if Article 370 does not have a permanent character. Then, what is the manner in which Article 370 can be abrogated and was the procedure followed?

The argument of the petitioner, in a nutshell, is that Article 370 went through various phases. It started off as a transitory provision, providing for the convening of a constituent assembly in J&K.

Once the Constituent Assembly was formed Article 370 became temporary to the extent that it could decide on the question of a "full merger" of J&K with the Union of India

But once the Constituent Assembly of J&K fulfilled its purpose by creating a Constitution of J&K, which contained specific and clear provisions ratifying the Article 370 of the Indian Constitution as it existed at that time, and the Constituent Assembly was dissolved, Article 370 became "frozen in time" as the only authority that had the power to terminate the special status of J&K guaranteed under Article 370 ceased to exist.

Thus, Article 370 assumed a continuous character.

Sibal added that the continuity of Article 370 can be traced from Article 147 of the Constitution of J&K. Article 147 provides for the procedure of amendment to the Constitution of J&K, equivalent to Article 368 of the Indian Constitution.

He referred to clause (c) of the second proviso to Article 147 of the J&K Constitution which says that no Bill or amendment seeking to make any change in the provision of the "Constitution of India as applicable, in relation to the State" shall be introduced or moved in either of the legislatures.

Henceforth, Sibal submitted that the J&K legislative assembly does not have the power to rescind the powers granted to J&K under clause(3) of Article 370 of the Indian Constitution, because the power to rescind such powers was only conferred to the Constituent Assembly.

When Justice Kaul asked if the Indian Parliament has the power to do so, Sibal replied that it is settled law that a legislative body cannot arrogate a power which it did not have in the first instance, as observed by the Supreme Court in S.R. Bommai versus Union of India (1994).

Can Parliament convert itself into a constituent assembly

Sibal stated that the scheme of Article 368 (power of the Parliament to the Constitution and procedure thereof) itself contains intrinsic pieces of evidence to give a limited meaning to the expression "amendment".

The Parliament, while enacting a law, functions within the contours of the Constitution. The Constituent Assembly, on the other hand, does not have a Constitution. In that context, it has wide powers, including the power to abrogate a certain provision, till the time it remains operative.

The CJI pointed out: "Even when the Parliament amends the Constitution, it is not exercising the powers of a Constituent Assembly. It may be exercising a constituent power; the power to amend."

The CJI reasoned that the Parliament and the Constituent Assembly are two different entities and that there is no scope for the Parliament to convert itself into a constituent assembly.

To this, Sibal added: "See the danger of this argument. Tomorrow, the Parliament [may] say it is the Constituent Assembly. It will do away with the basic structure [of the Indian Constitution]".

Yesterday, Sibal had argued that the convening of a Constituent Assembly is a political process in the context of determining how the State can meet the aspirations of the people.

He reiterated this argument today. However, the CJI added a caveat.

He said: "To completely divorce the power of amendment from the political process inherent in the amending power is not appropriate."