Article 370 was a ‘compact’ entered into between two sovereigns

Continuation on 2.

Argument

• “How can you say that the Parliament could not have exercised its preliminary amending powers to abrogate Article 370,” Chief Justice Chandrachud questioned senior advocate Kapil Sibal, appearing for petitioners.
• “Will that not amount to equating Article 370 with the principle of Basic Structure of the Constitution when you say the abrogation of Article 370 can never be done?” Justice S.K. Kaul asked.
• The senior lawyer responded that Article 370 was not the Basic Structure, but a “compact” entered into between two sovereigns (the princely State of Jammu and Kashmir and the Government of India) and engrafted in the Indian Constitution.
• “Unlike the case in some other princely States, the Indian government did not take over Jammu and Kashmir… You [government] want to take over J&K, you could have done it as a political act, but how do you do it from within a constitutional structure?” he countered.

But the Chief Justice said Mr. Sibal was treading on thin ice there. “But is it not possible that such a compact could be overridden by the sovereign of the succeeding State [Government of India],” Chief Justice asked the senior advocate.

Abrupt change’

• “Having taken the position that we need the consent of the Constituent Assembly to abrogate Article 370, why and how did the President and the Parliament abruptly change tack in 2019? The Parliament is a creature of the Constitution. It has to function within the limits of the constitutional structure,” Mr. Sibal argued.
• The proviso to Article 370(3) required the President to take the recommendation of the Constituent Assembly before declaring the provision inoperative.
• “What happened to this residuary power of the State to decide its own fate,” Mr. Sibal asked.
• He said the government, on August 5, 2019, “circumvented” the “residuary power” of the State by inserting Article 367(4)(d), which replaced the expression ‘Constituent Assembly of the State’ in the proviso to Article 370(3) with ‘Legislative Assembly of the State’.
• “Tomorrow, the Parliament can say it is the Constituent Assembly and do away with the Basic Structure… If you can say in principle that the Parliament can convert itself into the Constituent Assembly, then where do we go from there… Forget about this case, I am more worried about our future…,” Mr. Sibal submitted.

Justice said it was “debatable” if Article 370 acquired permanence after the dissolution of the Constituent Assembly in 1957. He added that it was also “debatable” if the NDA government followed procedure while abrogating the provision in 2019.