Asserting a pivotal argument before the Supreme Court on Wednesday, August 2, senior counsel Kapil Sibal, representing the petitioner, conveyed that the Indian Parliament lacks the authority to proclaim itself as a Constituent Assembly.
A constitutional bench of five judges, comprising Chief Justice of India D.Y. Chandrachud and Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, has convened to hear a cluster of petitions challenging the amendment of Article 370, which granted special status to the former state of Jammu and Kashmir.
Kapil Sibal presented his case on behalf of petitioner Mohd. Akbar Lone, articulating concerns over the Union government’s unilateral dismantling of India’s distinctive federal structure, which, in his argument, undermined core principles of due process and the rule of law.
Tracing the historical context of the state’s integration with India, Sibal illuminated Article 370(3), which stipulated that any alteration in the relationship between Jammu and Kashmir and the Indian Union required the endorsement of the state’s Constituent Assembly.
Previously, Article 370(3) of the Constitution, prior to its revision in 2019, stated:
“Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”
On August 5, 2019, a newly inserted provision, Article 367(4)(d), amended Article 370(3), replacing “Constituent Assembly of the State” with “Legislative Assembly of the State.”
During the hearing, Sibal drew a connection between the imposition of President’s rule under Article 356 in 2018 and the amendment of Article 370, contending that the governor’s consent, without the state government’s concurrence, did not genuinely represent the people’s will.
Sibal argued that Jammu and Kashmir possessed a distinct constitution, restricting Parliament’s scope to legislate for the state. However, Parliament curtailed powers endowed by the state’s constitution through its own amendments.
The bench interjected Sibal’s argument by questioning the transition of a provision originally intended as temporary in 1950 into permanence in 1957, following the dissolution of the state’s Constituent Assembly after framing its own constitution.
Sibal clarified that the proviso in Article 370(3) was crafted to allow changes during the state’s Constituent Assembly’s tenure. The term “temporary” in Article 370’s marginal note signifies the provision’s amendable nature, subject to the Constituent Assembly’s recommendation, he elucidated.
According to Sibal, if the framers intended the state legislature to make recommendations, they would have explicitly included it. He asserted that the state’s Constituent Assembly exclusively held the authority to determine the state’s relationship with India and recommend Article 370’s abrogation or modification.
Sibal emphasized that the Constituent Assembly’s role was to draft a forward-looking constitution, reflecting the people’s aspirations. “The constitution itself is a political document; its drafting is a political exercise. Once established, all institutions are governed by the constitution, and their powers are confined within constitutional provisions,” he conveyed.
He argued, “Parliament cannot transform itself into a Constituent Assembly. That chapter is closed. The Indian Parliament cannot assume the mantle of a Constituent Assembly. Where does Parliament acquire the authority to dictate the state legislature?”
Sibal contended that the Constituent Assembly was not a legislative endeavor. He underscored that Jammu and Kashmir’s unique circumstances necessitated Article 370’s incorporation, safeguarding its populace. He stressed that the state legislature or government consistently held residuary powers, unlike other states.
Sibal lamented that rescinding the state’s special status marked a departure from representative democracy. He remarked that never before in India’s history had a state been converted into a union territory.
Kapil Sibal is scheduled to continue his submissions on Thursday, August 3.”