Article 370 LIVE Update From Day 3 Hearing: Govt has no Power to Amend 370 by Itself: CJI

Hearing will now resume at 2 pm.

CJI Chandrachud: Under 356, you have no power to amend Constitution. 370 is a provision exclusively in operation of J and K. So the power they exercised was the power under clause (d) of 370(1).

Justice Khanna: Clause (d) is wider.

Sibal: But they couldn’t do this.

CJI Chandrachud: You are right, therefore the government has no power to amend 370 by itself.

Sibal: You cannot change the scheme of 370, forget abrogating.

CJI Chandrachud: But 370 itself postulates that it can be abrogated.

Justice Khanna: Under clause (d) of 370(1), the President can make modifications.

Sibal: this is an interpretation clause, that’s not a clause to amend Constitution.

Justice Khanna: so you want to say that the Interpretation clause cannot be amended?

Sibal: No, by interpretation, you cannot amend 370. You cannot substitute a Constituent Assembly. So, I will not amend 370 but I will amend 367 to amend 370.

CJI Chandrachud: 367(4) was brought in for the first time not with the Constitution but in 1954. So when 367(4) is brought in, if your argument is right, the original insertion of 367(4) is also invalid.

Sibal: No, that is just interpretation, but if you change the substance of 370, consideration would be entirely different.

Sibal: Except for land laws and personal laws, most Indian laws are applicable there in any case. So there was no need for any of this, except for the objective of sending a political message that we have done away with 370.

Solicitor General Tushar Mehta: Let me clarify that now 1200 laws are now applicable to the people of Jammu and Kashmir also. There are so many welfare schemes which are now available to them as well.

Sibal: That’s not the correct submission, many laws were there already.

Sibal cited Former CJI Ranjan Gogoi’s statement in Parliament: “One of your esteemed colleagues has said that in fact, basic structure theory is also doubtful.”

CJI Chandrachud: when you refer to a colleague, you have to refer to a sitting colleague. Once we cease to be judges, they’re opinions, not binding facts.

SG Tushar Mehta: Let that be left in Parliament alone since Mr Sibal wasn’t there at Parliament yesterday he is addressing here.

Sibal: I have a constitutional view here. There is some kind of humour in court here, not everything can be that serious.

CJI Chandrachud: Why was the amendment to Article 367 necessary? In their constitutional design to abrogate 370, why was it crucial to amend 367?

Justice Khanna: 367 clause 4 amendment is not required at all

Sibal: Because they themselves gave the power of the legislative assembly which they were exercising in 356 as the Constituent Assembly and recommend. They say that in proviso (3) of 370, the expression Constituent Assembly shall read as Legislative Assembly. So they amended Art 370. In the guise of majoritarian you cannot take from us what our forefathers gave us.

CJI Chandrachud: Suppose we disregard the 367 amendments?

Sibal: Then you can’t exercise under 356 at all. It’ll be a dead letter. You can’t amend Constitution. Parliament can.

Sibal has been arguing that J&K 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 permanent status.

He said the Parliament of India could not have assumed the powers of the non-existent Constituent Assembly and abrogated Article 370.

Earlier today, Sibal said, “We are dealing with the exercise of executive powers, not constitutional power.”

“You create a constitutional myth that there is the council of ministers. This is a mockery and this is a political act, not a constitutional act. How can, without a council of ministers, this has happened… I don’t think so… this has ever happened in any democracy,” Sibal argued.

CJI Chandrachud: Once we assume that Parliament can, any amendment of 370 would be subject to criticism on the ground of morality, but not power.

Sibal: But Clause (3) comes on the recommendation of the Constituent Assembly, not the other way round. You can’t even initiate a Bill like this.

CJI Chandrachud: So your argument would be that proceedings of the Constituent Assembly would indicate a reaffirmation of the arrangement under Article 370 as a long-term arrangement

Sibal: Yes

CJI Chandrachud: This gave rise to another question. Could 370, which was envisaged as a temporary provision, be converted into a permanent provision merely by proceedings of the J&K assembly? Or was there an act required by the Indian Constitution – either in the form of a constitutional amendment or so?

CJI Chandrachud: Now, as per your arguments, there are two ways that we can deal with this- one, though placed in Part XXI, Article 370 was never intended to be temporary, two, though temporary, the reason it was placed in Part XXI was pending the decision of Constituent Assembly of J&K, did that require something more,  a parliamentary intervention to convert that into a permanent provision

Sibal: if we assume it’s amendable, then the Constitution has to provide us with a solution.

Justice Khanna said that Article 368 of the Constitution gives the power to amend the Constitution. We have to see if Article 370(3) gives the right to amend it.

The CJI further said, “If we accept that Article 368 is used for amending all articles, then Article 370 will also be covered. Then the argument that there is no power to amend can (only) be a moral argument, but not a legal one.

“An executive act of the Union of India cannot alter unilaterally provisions of the Constitution of India as applicable to the State of J&K,” Sibal argued.

To which, Justice Gavai asked, “Is it your case that the parliament could have done it?”

Sibal said, “No, not at all. That I will also answer. Ultimately, this was a political decision taken in the context of the situation prevailing. Right? And the complete abrogation must also be a political decision. It’s a fraud of the Constitution.”

CJI then said, “But in a democracy like ours, seeking the opinion of people has to be through established institutions. So long as democracy exists, any recourse to the will of the people has to be expressed by an established constitution. Within a constitution like ours, there is no question of a referendum.”

Sibal read Sheikh Abdullah’s speech outlining the purpose of the Constituent Assembly of J&K which was made on November 5, 1951.

“The people of J&K gave themselves their Constitution just as the people of India gave themselves the Indian Constitution. Central to all this is the will of the people. the essence of this case is whether there was the will of the people or not,” Sibal said.

“You have to limit yourself as far as submissions are concerned. We are in the middle of writing on same-sex marriage and now facing a lot of issues because of last-minute submissions sent to us. This creates a lot of confusion. So limit yourself,” the Chief Justice of India told Sibal, appearing on behalf of the petitioners.

The Five-judge Constitution bench of the Supreme Court resumed hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution.

Senior advocate Kapil Sibal, appearing for NCP leader Sajad Lone, continued with his arguments.

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