New Delhi: ‘The Indian Parliament cannot declare itself as a Constituent Assembly,’ senior counsel, Kapil Sibal, who appeared on behalf of petitioner, told the Supreme Court on Wednesday, August 2.

A five-judge constitution bench, comprising Chief Justice of India D.Y. Chandrachud and Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant, has started hearing a batch of petitions challenging the reading down of Article 370 of the constitution that bestowed special status on the erstwhile state of Jammu and Kashmir.

He made his submissions on behalf of the petitioner, Mohd. Akbar Lone, on how the Union government unilaterally unravelled India’s unique federal scheme, while undermining crucial elements of the due process and the rule of law.

Tracing the history of the state’s accession to India, Sibal shed light on Clause (3) of Article 370 which provided that any alteration to the relationship between the state of Jammu and Kashmir and the Indian Union could only be made upon the recommendation of the Constituent Assembly for the state.

Article 370(3) of the Constitution, before its reading down in 2019, said:

“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, the newly inserted Article 367(4)(d) amended Article 370(3) by replacing the expression “Constituent Assembly of the  State” with the “Legislative Assembly of the State”.

During the hearing, Sibal sought to link the imposition of the President’s rule under Article 356 in the state in 2018, with the reading down of Article 370, by contending that the concurrence of the state government provided by the governor did not express the will of the people.

He argued that the state of Jammu and Kashmir had a separate constitution, and therefore, the parliament had a limited scope to enact legislation for the state. Powers given to the state by its own constitution were read down by parliament, he submitted.

But the bench interrupted Sibal to question him whether a provision, intended to be temporary in 1950, could become permanent in 1957, only because the state’s Constituent Assembly had completed its task of framing the Constitution for the state, and dissolved itself.

Sibal explained that the proviso in Article 370(3) was incorporated to ensure that Article 370 could be changed during the existence of the state’s Constituent Assembly. The use of the word “temporary” in the marginal note of Article 370 serves the purpose of indicating that when Article 370 was introduced, it could be amended/abrogated with the recommendation of the Constituent Assembly of Jammu and Kashmir, he clarified.

Sibal suggested that the framers of the constitution in 1950 would have included a reference to the state legislature if they had intended that the state legislature should be able to make such a recommendation. In his view, the state’s Constituent Assembly had the exclusive power to determine the state’s relationship with India and to recommend the abrogation or modification of Article 370.

Sibal submitted that the Constituent Assembly stands for enacting a constitution for the future, and it is essentially a political exercise to take into account the aspirations of the people.

“Constitution itself is a political document; drafting of [the] constitution is a political exercise. Once the constitution comes into place, all institutions are governed by the constitution, and those institutions are limited in the exercise of their powers consistent with the provisions of the constitution,” he told the bench.

“Parliament cannot convert itself as a Constituent Assembly. That’s done. [The] Indian Parliament cannot declare itself as a Constituent Assembly. Where does parliament get that power to decide the legislature of the state?” he asked.

Sibal submitted that task before the Constituent Assembly was not a law-making exercise. “There was a disparity. There were 562 princely states which had to be amalgamated. Each of them had certain conditions. Jammu and Kashmir was an exception, and therefore, it was constitutionally grafted in Article 370. You can’t jettison the people of J&K,” he elaborated.

He pointed out that the residuary power was with the state legislature/state government throughout, unlike other states.

Sibal deplored that the withdrawal of the special status for the state was a move away from representative democracy. Never in the history of the country, a state could be converted into a union territory, he said.

Sibal will continue his submissions on Thursday, August 3.