The Supreme Court on Aug 2 started hearing a clutch of petitions challenging the dilution of Article 370 of the Constitution, which bestowed special status on the erstwhile state of Jammu and Kashmir. 

Senior advocate Kapil Sibal, arguing as lead counsel on behalf of the petitioners contended the special provision was removed by a political act and not through the constitutional procedure.

A five-judge bench led by CJI DY Chandrachud asked him whether it is possible for an elected assembly to abrogate Article 370, which bestowed special status on the erstwhile state of Jammu and Kashmir. 

Sibal said that the purpose of Article 356, under which the President’s rule is imposed in a state, is supposed to be a temporary position and is not intended to decimate democracy.

Clause 3 of Article 370

Sibal, representing Mohd Akbar Lone, submitted before the bench also comprising justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant that Article 370(3) envisioned that the Constituent Assembly must play a role in the abrogation of Article 370.

Clause 3 of Article 370 states that, “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

Upon this, the bench said that the acceptance of the sovereignty of the dominion of India was complete for all intent and purposes and the Constituent Assembly of Jammu and Kashmir reserved some rights over certain legislative subjects only, and they said that in clause 3, the president would have the right to abrogate 370.

Sibal replied that in Article 370(3), the Constituent Assembly has been specifically mentioned which showed the intent for it to play a role in the abrogation of Article 370.

He submitted that the court has to see the historical perspective in which they signed the Instrument of Accession. He added that nobody disputes that they are integrated into India but subject to a constitutional provision.

Bench questions and Sibal’s arguments

The bench then asked Sibal, “If an elected assembly wants to abrogate Article 370 then also it is not possible?” 

Sibal said it is not possible.

The bench then said that this argument only stands, if it is accepted that Article 370 becomes permanent after the constituent assembly ceases to exist. 

The CJI further asked, can a Parliament of the state to which it has agreed to merge, have limited powers in the state?

“So you are saying that after 1957, Article 370 could not be abrogated? And even after the completion of the Constituent Assembly tenure, Article 370(3) will continue to operate,” the bench asked him.

The bench further asked what happens after the Constituent Assembly lapses, as it was supposed to be functional only from 1950 to 1957. 

The chief justice said, “No Constituent Assembly can have an indefinite life.”

Sibal said that between the Centre and the state, there was this understanding that the Constituent Assembly will determine the future course of action as to whether Article 370 should be abrogated or not. He stressed that the people of J&K are with India but there is a special relationship which is engrafted in Article 370.

At the outset, Sibal submitted that it was a historic moment for him as the Supreme Court would be analysing why history was tossed out on Aug 6, 2019, whether the procedure adopted by the Parliament was consistent with what democracy stands for and if the will of J&K people can be silenced.

The hearing on about 23 petitions questioning the validity of the historical decision would continue today as well.

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