Article 370 Case : One stand arises out of exercise of power under 356. Under 356, you have no power to amend constitution:CJI
Courtesy: LIVE LAW
A bench comprising Chief Justice of India DY Chandrachud, Justices SK Kaul, Sanjiv Khanna, BR Gavai and Surya Kant is hearing the matter.
Senior Advocate Kapil Sibal argued during the first two days. The reports of the previous hearings can be found here, here and here.
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8 Aug 2023 12:29 PM
Sibal: But they couldn’t do that because clause (1) relates to IoA and concurrent list.
Justice Khanna: Clause (d) is wider.
8 Aug 2023 12:29 PM
CJI: One stand arises out of exercise of power under 356. Under 356, you have no power to amend constitution. 370 is a provision exclusively in operation of J &K. So the power they exercised was the power under clause (d) of 370(1).
8 Aug 2023 12:26 PM
Sibal: Just to set the record right, the J&K Prevention of Corruption Act 2006- applicable. They were named differently. Let’s not get into it.
8 Aug 2023 12:26 PM
SG: After 2019 excercise approximately 1200 laws are now applicable…all beneficial legislations available to other citizens now are available to J&K. Prevention of Corruption Act wasn’t applicable. RTE wasn’t applicable.
Sibal: It was! Prevention of Corruption was applicable.
8 Aug 2023 12:24 PM
Sibal: Except for land laws and personal laws, most Indian laws are applicable there in any case. So there was no need for any of this, except for the objective of sending a political message that we have done away with 370.
8 Aug 2023 12:21 PM
SG: Parliament doesn’t discuss what goes on in courts…he has a freedom of expression.
Sibal: ofcourse, absolutely.
8 Aug 2023 12:20 PM
Sibal: As it is now one of your esteemed colleagues has said that in fact basic structure theory is also doubtful.
CJI: Mr Sibal, when you refer to a colleague, you have to refer to a sitting colleague. Once we cease to be judges, they’re opinions, not binding facts.
8 Aug 2023 12:17 PM
Sibal: They cannot possibly justify it. Unless a new jurisprudence comes to light that they can do whatever they like as long as they have majority.
8 Aug 2023 12:17 PM
Sibal: See the consequence of this- that through an executive order, you can change any provisions of the Constitution. Because you have majority. This majoritarian culture cannot destroy the edifice of what our forefathers gave us.
8 Aug 2023 12:16 PM
CJI: I think the proceeded on a hypothesis that consultation with Constituent Assembly was necessary. So they said that now we’ll replace it with legislative assembly.
Sibal: 356 power cannot be exercised by parliament, govt, president in this fashion independent of 367. Because you’re only acting as legislature. You have no power as executive. Executive is only dealing with administration, it can’t amend
8 Aug 2023 12:12 PM
CJI: So they abrogate. Then they’d have to go to parliament to pass a resolution. Why was amending 367 necessary?
8 Aug 2023 12:11 PM
CJI: So once proclamation under 356 was issued- all powers vested in the executive of J&K were transferred to govt. All powers of state legislature were vested in parliament. Then if 370(3) is capable of the interpretation, just as hypothesis, that power of abrogate is with Pres
8 Aug 2023 12:10 PM
CJI: Suppose for a moment, they had not amended 367, suppose we are operating purely within the fold of 356- once a proclamation takes place under 356, two things follow. One, president gets all powers of state. Two, power of state legislature is subsumed in parliament.
8 Aug 2023 12:07 PM
Sibal: They don’t interpret it. They say that in proviso (3) of 370, the expression Constituent Assembly shall read as Legislative Assembly. So they amended Art 370.
8 Aug 2023 12:06 PM
Sibal: Because they themselves gave the power of the legislative assembly which they were exercising in 356 as the Constituent Assembly and recommend. They were ad idem with my interpretation that you need recommendation of Constituent Assembly.
8 Aug 2023 12:05 PM
CJI: From their perspective, why was the amendment to 367 necessary at all? In their constitutional design to abrogate 370, why was it crucial to amend 367?
Sibal: We’re dealing with exercise of executive power, not constitutional power.
Sibal: In UK, Boris Johnson tried to bypass parliament and requested the queen to prorogue the house. It was prorouged. The SC of UK unanimously held that it couldn’t be done. This is much worse than that.
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Sibal: In UK, Boris Johnson tried to bypass parliament and requested the queen to prorogue the house. It was prorouged. The SC of UK unanimously held that it couldn’t be done. This is much worse than that.
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8 Aug 2023 12:00 PMSibal: So you create a constitutional myth and assume in the absence of council of ministers that there is a council of ministers. Then you pass a presidential order that even in absence of council of ministers the governor is acting on its aid and advice.
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8 Aug 2023 11:59 AMSibal (reads the 2019 Order): “…the governor of J&K acting on advice of council of ministers…” How can that be? There is no council of ministers.
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8 Aug 2023 11:58 AMSibal: The inception of this executive order is constitutionally flawed.
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8 Aug 2023 11:55 AMSibal refers to the speech of MA Beg: He was the representative of J&K in India’s Constituent Assembly. He was a part of the Constituent Assembly of India as well.
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8 Aug 2023 11:54 AMSibal: There would have been no Constitution of J&K if 370 was to be abrogated.
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8 Aug 2023 11:53 AMSibal: Now it had to be on recommendation of Constituent Assembly, so it had to be a temporary provision. It was temporary because there was nothing in place, not because this provision had to go.