Supreme Court Delves Deep into Article 370: Key Points from Day 3 of Hearings

The Supreme Court of India witnessed another day of intense deliberations as a Constitution bench continued hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution, which granted special status to the former state of Jammu and Kashmir. The proceedings on the third day, presided over by Chief Justice of India DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, provided insight into crucial legal arguments surrounding this contentious issue.

Senior Advocate Kapil Sibal, representing the petitioners, led the arguments, engaging in a comprehensive and thought-provoking discussion. The proceedings during the day unfolded as follows:

The day commenced at 11:00 am, with Senior Advocate Kapil Sibal directing the court’s attention to page 70 of the supplementary submissions.

Chief Justice DY Chandrachud voiced concerns about allowing supplementary submissions, as this could lead to a situation where both sides would provide supplementary arguments, potentially causing complications during the final judgment.

Justice Sanjay Kishan Kaul expressed apprehensions about violating Article 14 if certain documents were referred to selectively. He suggested that oral arguments be advanced instead.

Chief Justice Chandrachud introduced a quote from Sheikh Abdullah, highlighting Pakistan’s claim of being a Muslim state as a facade to hide its feudal nature.

Kapil Sibal raised a critical question: Can provisions of the Constitution be deleted via executive action? He argued that such changes should involve broader consensus and not be executed through executive decisions.

Justice BR Gavai questioned whether the parliament had the authority to make such amendments.

Sibal drew a parallel to the Brexit referendum, emphasizing the importance of seeking the opinion of the people before constitutional changes.

Chief Justice Chandrachud underscored that a constitutional democracy mandates that public will be expressed through established institutions, and referendums may not align with this framework.

The court delved into whether Article 370’s temporary nature persisted after the constituent assembly’s dissolution in 1957.

Sibal suggested that the Constitution of India should address the issue of amendments after the constituent assembly ceases to exist.

Justice Khanna highlighted the role of Article 368 in amending the Constitution and raised questions about Article 370(3)’s potential interpretation.

Chief Justice Chandrachud discussed whether Article 370 could be considered unamendable after the dissolution of the Jammu and Kashmir constituent assembly.

Sibal emphasized that the government’s actions seemed more like political acts rather than constitutional acts, referencing instances from other constitutional democracies.

Sibal questioned the government’s use of executive power to bypass the parliament and referred to the UK Supreme Court’s judgment on executive actions.

The discussions revolved around the amendment of Article 367 and the requirement for such amendments.

Sibal argued that executive powers should not extend to altering constitutional interpretations.

The court probed the necessity of amending Article 367 when abrogating Article 370 and examined the implications of such changes.

Sibal contended that executive actions should not undermine constitutional provisions or democratic processes.

The discussions delved into the Jammu and Kashmir Reorganisation Act and its implications.

Sibal pointed out that the Act did not provide for the extinguishment of a state’s identity and questioned the government’s authority to make such changes.

The day concluded with Senior Advocate Gopal Subramanium beginning his arguments.

The third day of hearings offered a detailed exploration of the complexities surrounding Article 370’s abrogation, shedding light on the intricate legal and constitutional questions raised by the petitioners. As the Supreme Court continues its hearings, the nation awaits a definitive decision on this historic case.

Certainly, here are the top 10 points that were discussed during today’s Supreme Court hearing on Article 370 of Jammu and Kashmir:

1. Supplementary Submissions: The day began with Senior Advocate Kapil Sibal referring to page 70 of the supplementary submissions. However, concerns were raised about the implications of allowing supplementary submissions, as it could lead to complications during the final judgment.
2. Validity of Executive Action: Sibal questioned whether provisions of the Constitution can be deleted through executive action and argued for a more comprehensive consensus before such changes are made.
3. Role of Parliament: The bench questioned whether the parliament had the authority to make amendments that significantly alter constitutional provisions.
4. Referendum and Public Opinion: The comparison was drawn to the Brexit referendum, highlighting the importance of seeking the public’s opinion before making constitutional changes.
5. Constitutional Democracy and Referendums: Chief Justice Chandrachud emphasized that in a constitutional democracy, public opinion should be expressed through established institutions rather than referendums.
6. Temporary Nature of Article 370: The court explored whether Article 370’s temporary nature persisted after the dissolution of the Jammu and Kashmir constituent assembly.
7. Article 368 and Amendment: The discussions centered around the interpretation of Article 368 and whether it encompassed the authority to amend Article 370.
8. Executive Power and Constitutional Acts: The validity of using executive power to bypass parliamentary processes and its implications for constitutional democracy were debated.
9. Amendment of Article 367: The necessity and implications of amending Article 367 during the abrogation of Article 370 were examined.
10. Jammu and Kashmir Reorganisation Act: The Act’s provisions and their impact on altering the region’s status to Union Territories were discussed, including the question of extinguishing a state’s identity.

These discussions reflected the intricate legal and constitutional dimensions of the case, showcasing the depth and complexity of the arguments presented before the Supreme Court.

(With inputs from Bar and Bench)

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