NEW DELHI: Hearing pleas challenging the abrogation of Article 370 for the second day, the Supreme Court on Thursday called the Constitution a live document, and asked if the special provision could be amended if all of Kashmir wanted it.
“According to you, neither the Assembly can do it nor can Parliament do it. So, what you are saying is that while other provisions of the Constitution may be capable of an amendment by a process envisaged, other than it is hit by basic structure, this is one provision that can never be amended.
Having permanency, the whole concept is that the Constitution is also a living document,” Justice SK Kaul told senior advocate Kapil Sibal. Sibal stood firm on his submission that the abrogation could only be done after the constituent assembly’s recommendation.
“At some stage, can we say that there is no mechanism whatsoever for changing it even if everyone wants to change it and it doesn’t affect the basic structure,” asked Justice Kaul. Terming the issue regarding Art 370’s character as “debatable,” a five-judge bench comprising CJI DY Chandrachud, Justices SK Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant said that two issues that required deliberation were whether the provision acquired “permanent feature” and if the methodology adopted for abrogation was right or wrong.
While National Conference leader Mohammad Akbar Lone’s counsel Kapil Sibal submitted that the President’s rule cannot be invoked for decimating democracy and that the legislature did not have the power for recommending abrogation of Article 370 as per the J&K Constitution, the CJI asked if permanency can be a consequence, which follows from the Constitution of J&K. Justice Kaul also asked, “Can the Constitution of J&K give permanency to Art 370 of the Constitution of India?”
When Sibal contended that the Governor and Central government acted in tandem as they wanted to get rid of Article 370, the CJI asked as to what constitutional mechanism will the President have to follow if there was a proposal to modify the said article in 2019. He further questioned what could have happened if Maharaja was replaced by an elected government of J&K.
Also in top court
Calcutta HC order asking CBI to interrogate TMC MLA Manik Bhattacharya stayed
The Supreme Court on Thursday stayed an order of the Calcutta High court directing the CBI to interrogate jailed TMC MLA Manik Bhattacharya in connection with alleged irregularities in the teachers’ recruitment case. In a special sitting, a bench of Justices A S Bopanna and Sanjay Kumar noted that the HC passed the order even though Bhattacharya was not a party to the proceedings before it. The top court, however, clarified that others linked to the case can be interrogated as directed by the HC. The SC also asked its secretary general to communicate the order to the registrar general of the Calcutta HC, who shall place this order before the judge concerned immediately.