Refers to Sheikh’s speech that Pak is a feudal State
*Was an amendment to Art 376 required to abrogate 370?
Excelsior Correspondent
NEW DELHI, Aug 8: Chief Justice of India (CJI) DY Chandrachud today remarked that within a Constitution like ours, there is no question of a referendum and enquired could Article 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 Constitutions—either in the form of a Constitutional amendment or so?
His remarks and queries came during hearing by the Supreme Court today on a batch of petitions challenging the abrogation of Article 370 of the Constitution that bestowed special status on erstwhile State of Jammu and Kashmir. The hearing is being done by a five-Judge Constitution Bench headed by the CJI since August 2.
The Supreme Court also grappled with the question as to whether its repeal was constitutionally legal.
India, it said, is a constitutional democracy where the will of its people can be ascertained only through established institutions.
The remark by the five-Judge bench headed by Chief Justice DY Chandrachud came following the submission by senior advocate Kapil Sibal that the abrogation of Article 370 of the Constitution, which accorded special status to the erstwhile State of Jammu and Kashmir, was a political act like Brexit where the opinion of British citizens was elicited through a referendum. This was not the case when Article 370 was repealed on August 5, 2019, he said.
During the third-day of the hearing on the pleas challenging the Centre’s August 2019 decision, senior Advocate Kapil Sibal repeated his contention before the bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant questioning Parliament’s powers to repeal Article 370.
“This court will remember Brexit. In Brexit, there was no constitutional provision (in England) seeking a referendum. But, when you want to sever a relationship which has been entered into, you must ultimately seek the opinion of the people because people are at the centre of this decision not the Union of India,” Sibal asserted.
CJI Chandrachud was, however, not impressed.
“In a constitutional democracy, seeking the opinion of people has to be done through established institutions. So long as a democracy exists as it does, in terms of constitutional democracy, any recourse to the will of the people has to be expressed and sought through established institutions. You cannot therefore envisage a situation like Brexit type referendum,” he told Sibal.
He concurred with Sibal’s view that Brexit was a political decision but said, “Within a Constitution like us there is no question of referendum.”
Brexit was the name given to the United Kingdom’s departure from the European Union. Britain’s exit from the EU was actuated by a rise in nationalistic fervour, daunting immigration issues, and a distressed economy.
The Chief Justice of India also referred to the speech of Sheikh Abdullah, former Chief Minister of Jammu and Kashmir, and pointed out that how speech mentions that Pakistan is a feudal State and that our interest would not be protected in a feudal Pakistan as compared to India where land reforms were taking place.
Justice Chandrachud enquired: “Could Article 370 which was envisaged as a temporary provision be converted into a permanent provision merely by proceedings of the Jammu and Kashmir Assembly? Or was there an act required by the Indian Constitution—either in the form of a Constitutional amendment or so?”
As Sibal contended that proceedings of the Constituent Assembly are essential in determining whether Article 370 was intended to be a temporary measure, the CJI stated: “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, however, responded in affirmative.
As Sibal pointed out that abrogation of Article 370 is a political decision and not a Constitutional decision, the CJI remarked: “but then the question is whether the Constitution does or does not entrust that Authority?”
Addressing Sibal, Justice Chandrachud further said: “ Suppose for a moment, they hadn’t amended Article 367, suppose we are operating purely within the fold of Article 356—once a proclamation takes place under Article 356, two things follow-—One, the President gets all powers of the State. Two, the power of State Legislature is subsumed in Parliament. So once the proclamation under Article 356 was issued—all powers vested in the Executive of J&K were transferred to the Union Government. All powers of the State Legislature were vested in Parliament. Then if Article 370 (3) is capable of interpretation, just as a hypothesis, that the power of abrogate is with the President”.
He further enquired that if the Union Government had to abrogate Article 370 why was an amendment to Article 376 required at all.
Sibal responded that it was required because they changed the definition of the Constituency Assembly to the Legislative Assembly. “They say that in proviso (3) of 370, the expression Constituency Assembly shall read as Legislative Assembly. So they amended Article 370,” he added.
The CJI said once it is assumed that the Parliament can amend Article 370 then such an amendment of Article 370 would be subject to criticism on ground of morality but not on the basis of a lack of authority.
The CJI further asked Kapil Sibal if the power to amend Article 370 is completely lost once the J&K Constituency Assembly comes to an end.
Sibal responded: “Let me not even go that far. I will assume that there is some power available—it may Article 368”.
Sibal has been insisting that Parliament could not have assumed the role of the Constituent Assembly to repeal Article 370.
He questioned the Centre’s decision of dividing the erstwhile State of Jammu and Kashmir into two Union Territories and said the Constitution did not allow it.
The hearing remained inconclusive and will continue tomorrow when senior advocate Gopal Subramanian will advance his arguments for the petitioners.
Several petitions challenging abrogation of the provisions of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which split the erstwhile State into two Union Territories – Jammu and Kashmir, and Ladakh- were referred to a Constitution bench in 2019.
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