Abrogation of Article 370: Supreme Court to continue hearing today
Today, the Constitution Bench will continue hearing the case related to the abrogation of Article 370. On August 09, 2023, the Supreme Court bench heard a batch of petitions challenging the abrogation of Article 370 of the Indian constitution. The constitution bench includes Chief Justice of India DY Chadrachud, Justice Sanjay Kishan Kaul, Justice Surya Kant, Justice BR Gavai, and Justice Sanjiv Khanna. The hearing of the matter first began on August 02, 2023, where a question “Whether the Constitution makers and Article itself envisaged the provision as a permanent or temporary one”. The submissions were presented by Senior Advocate Kapil Sibal before the Constitution bench. On the third day (August 09), SA Sibal presented supplementary submissions on behalf of the petitioners again. During the proceedings on the third day, the constitution bench opined that if it is acknowledged that Article 370 of the Constitution attained permanence upon the dissolution of the constituent assembly of Jammu and Kashmir in 1957, the question arises as to whether the said Article would be incorporated into the basic structure of the Constitution.
During the proceedings yesterday, Kapil Sibal pointed out the comment of Ranjan Gogoi (nominated member of Rajya Sabha) regarding the basic structure of the Constitution. He said “The law may not be to be my liking but that does not make it arbitrary. Does it violate the basic feature of the Constitution? I have to say something about the basic structure. There is a book by [former Solicitor-General of India] Andhyarujina on the Kesavananda Bharati case. Having read the book, my view is that the doctrine of the basic structure of the Constitution has a debatable, very debatable jurisprudential basis. I would not say anything more than this,”. CJI replied, “Once they cease to be judges, they are opinions, not binding diktats.” Further arguing, Sibal said, “The power under Article 3 does not extend to effacing a character of a State into a Union territory. It is the interaction of the values of the Constitution of federalism, separation of powers, democracy that has to be taken.”
Moreover, Sibal contended “Can a state be downgraded to a Union Territory by Union on its own whim without consultation with the people? Those are the constitutional parameters to be applied on this momentous change brought by the exercise of majoritarian power.” Sibal concluded his arguments by stating that “This is a historic case, not for the present one only but also for the future. I hope the court stands up for it.” Following this, Senior Advocate Gopal Subramanium mentioned, “Start with the Decision of the constituent assembly of Jammu and Kashmir itself.” To which, CJI responded, “Okay you start tomorrow morning Mr. Subramanium”.
