New Delhi: ‘A Constituent Assembly is distinguishable from legislature or parliament because the latter is inherently partisan,’ the Supreme Court was told on Thursday, August 3, during a hearing of a plea challenging the reading down of Article 370.Senior counsel Kapil Sibal, representing one of the petitioners, Mohammad Akbar Lone, made these remarks and added that this is why the parliament cannot be expected to perform the role of the Constituent Assembly.The matter is being heard by a five-judge constitution bench, comprising Chief Justice of India, D.Y. Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R.Gavai and Surya Kant.Sibal suggested that if the idea that the state legislature assembly or parliament can convert itself as a Constituent Assembly, for the purpose of amending a constitutional provision, is accepted, then the basic structure of the constitution, protected by the Supreme Court in the landmark Kesavananda Bharati case, would render itself vulnerable and unsafe in the hands of an authoritarian and majoritarian government at the centre.On the first day of the hearing on August 2, Sibal sought to explain his point why parliament could not convert itself as a Constituent Assembly.Sibal’s essential contention is that the state’s Constituent Assembly had exercised its choice by not amending Article 370 of the constitution, before it dissolved itself in 1957 after enacting the state’s constitution. Therefore, he suggested that neither the state legislative assembly or a future parliament should assume the role of the Constituent Assembly to amend the provision.He was emphatic that the marginal note to Article 370 of the Constitution – which suggests it is a temporary provision – ought not determine its text, as the Supreme Court held in several cases in which marginal notes of the constitutional provisions were interpreted.He drew attention of the bench on how the Union government and the parliament compromised the procedure to achieve the desired political objective in the state.The question of the nature of Article 370 of the constitution – before it was read down in August 2019 – came up for a detailed discussion before the bench, which was told that consultation or concurrence with the state legislature or a popular government of the state was a sine qua non before any exercise was undertaken to amend it, including the introduction of a Bill in parliament for the purpose. This is unlike the process of amendment of provisions dealing with other states in the Indian Union, he explained.He described it as a “mosaic of illegalities”, while explaining how the Union government – through the state’s governor – suspended the state’s constitution without consultation and Article 356 was used to amend the constitution.Sibal said that Article 370(3) which makes it mandatory for the President to notify its repeal or modification after the recommendation of the state’s Constituent Assembly could not be done away with.“It was a pure political act. You (the Union government) circumvented the constitution to reach the result you wanted. Is there any other way to do it? (repeal or modification of Article 370) – it is for the other side to throw light on this. I cannot be asked to suggest ideas for them,” he told the bench.Sibal took the bench through the series of missteps of the state governor, who dissolved the state assembly without the aid and advice of the council of ministers.The ostensible reason cited by the then governor was that the fax sent by the erstwhile ruling party – People’s Democratic Party – conveying the National Conference’s support to it did not reach him in Jammu as it was sent to Srinagar.The hearing will continue on Tuesday, August 8.
