Article 370 case hearing at Supreme Court Day 2
Adv. Sibal: Article 370 can be interpreted in a variety of ways. Fundamental rights and other substantive articles of the Indian Constitution, such as the guiding principles of public policy, were made applicable to Jammu and Kashmir. It is unrelated. The Constitution (Application to Jammu and Kashmir) Order of 1954 states as much.
DY Chandrachud, Chief Justice of India (CJI): What distinguishes the consultation with the state described in clause b’s sub clause (i) from that described in clause d’s first proviso? There must be a reason why the identical issue is covered by different provisions, Sibal. Making laws is included under Clause b (1). That is unique.
Adv. Sibal: It was a solemn undertaking that you wouldn’t alter the restrictions. Dieses was done in agreement with the Lords. The definition of the subjects covered by the instrument of accession and for which parliament may pass laws, is mentioned in clause (b) (1). Now, clause (d)’s first proviso will not apply to that. The first proviso states that the matters mentioned in the instrument will not exist, unless the State has been consulted. So, in cases where the president is making an exception or modification, he has the authority. However, the proviso states that, if the President is adapting or changing what is stated in the Instrument of Accession, then you must consult (with the State).
I was curious as to what article (d) stated on the necessity for consultation or concurrence, if the President wanted to modify or make an exception to the application of the Constitution to Jammu and Kashmir. But what if he makes no attempt at consultation or concurrence? Then, what happens? Do you then require it in accordance with clause (d)?
CJI: If it is a limiting provision, then the power of the legislature to enact laws can be found elsewhere.
Justice SK Kaul: It has two restrictions. What is the scope of it? Pertaining to issues on the concurrent list and union. The second part is the result of discussions with the State Administration, followed by the union and concurrent list that is a component of the instrument of accession for those, over whom the Parliament has legislative authority.
Adv. Sibal: With the exception of Sections 36, 38, and 92, the Council of Ministers was not consulted before the Governor dissolved the Assembly in November 2018. Because Jammu and Kashmir has a special status, Article 92 of the Constitution allows for the declaration of an emergency and the suspension of all or portions of the Constitution. The Council of Ministers must assist and advise the governor in dissolving the legislative assembly, but nothing of the sort occurred when the assembly was dissolved in November 2018.
No Legislature can introduce a Bill to change Article 370, according to Article 147 of the Jammu and Kashmir Constitution Act, and that provision was only temporary while the Constituent Assembly was in session. There cannot be any changes made to Article 370. Legislative bodies lack Authority.
Justice Kaul: Can Article 370 of the Indian Constitution be made permanent under the Jammu and Kashmir Constitution? According to 370(3), the Legislature is powerless to change the Article. I was reading the Kesavananda Bharati decision about the significance of a marginal remark and how it just slightly affects the way Article 368 of the Indian Constitution should be interpreted.
Legislative intent can be partisan, but that cannot be the case with the constituent assembly, hence the legislative assembly cannot be changed in the constituent assembly.
Justice Sanjiv Khanna: Between what is said here and what is said in article 370, there is a small variation. There is some leeway in Article 370. Let’s avoid discussing the process of doing it, including any consultation or acceptance.
When the Indian Constitution was enacted, as stated in Clause 3, J&K did not have a constitution or a constitutive assembly. But they were aware, that the Constituent Assembly will occur. Why are we unable to accept the notion that the Legislative Assembly of J&K might likewise be construed as being included in the Constituent Assembly of J&K for the purposes of the proviso? Keeping in mind that Article 370 might have been changed by Parliament as well, and if the goal was not to close or place Article 370 in a straight.
CJI DY Chandrachud responded to Sibal’s argument by saying, „Of course this has the optics regarding the way it was done. “ However, there is no challenge to do anything that has already been completed, so what exactly is the task? The question is, what the power under 356 is, Sibal responded. The fundamental goal of 356 is to reestablish democracy. You assume power because, in order to restore democracy, a government can only temporarily function. You don’t decimate it with 356.
CJI DY Chandrachud questioned, Can a Ratification be done under 356? Regarding that specific state legislature?
Adv. Sibal: No, because he’s acting as state legislature“, to this. Ratification is done by the state, hence there are authorities involved in passing a law: the parliament and the state authority. You cannot rule both. Like clapping with just one hand. Forget about introducing the bill; you can’t even do that! You obviously cannot introduce the Bill. By 356, you have eliminated it here. After that, the subject of Jammu and Kashmir becoming a Union Territory came up.
Justice Surya Kant: “What was the procedure followed in passing the constitution order?”
Adv. Sibal responded by saying, “All passed with concurrence.”
Justice Kant then inquired once more, “But what was the process? “Was it approved by the legislature?
Adv. Sibal: It was done by a presidential notification, concurrence, or consultation. It is made applicable in this way. The public’s opinions were to be considered. “States didn’t need consent when they were integrating into the Union,” he continued.
But because J&K was not merged, you completely lose the connection between the Centre and the State, he said. With yourself as the executive, along with the parliament and the legislature, you take on all of the state’s authority. And you make the decision without consulting any other institution. Therefore, you authorise yourself. They exclude the individuals, who established this constitution for themselves. Diese basically amounts to a breach of the constitutional framework: States didn’t need consent when they were integrating into the Union.
