Is Article 370 above basic structure doctrine, Supreme Court asks petitioners

The Supreme Court on Monday sought to know from those challenging the validity of the dilution of the special status of J&K, if it is their case that there is no solution to the Kashmir issue within the Constitution and if Article 370 is above the basic structure doctrine of the Indian Constitution.

"Ultimately it will boil down to this that there is in our Constitution, if we accept your submission, a provision to which even the amending power which is available in respect to the rest of the Constitution is unavailable with regard to Article 370," a five-judge bench led by Chief Justice of India D Y Chandrachud asked senior advocate Kapil Sibal.

The bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant, was hearing rejoinder arguments on behalf of the petitioners in a batch of pleas challenging the abrogation of Article 370.

Sibal, for his part, said the power is unavailable because it is amended, Article 368 (Power of Parliament to amend the Constitution) has been amended with a proviso.

The bench then asked him in that sense, the provision of the Constitution lies even above the basic structure. On this, Sibal replied in negative.

“Article 370 you can’t amend also, and to amend 370 you have to take the route of Article 368 and Article 368 takes you back to Article 371 by the proviso… We are not saying it is, we are testing a proposition, is there a part of the Constitution? The only restriction we have found so far in our jurisprudence on the power of changing or altering the Constitution as a basic feature doctrine,” the bench said.

"We are now going to add one more which is Article 370, is beyond Article 368 and much beyond the basic structure doctrine because you cannot touch Article 370, it assumes a character of permanence," the bench asked him.

Sibal replied, “We are testing the proposition in the context of what they have done”.

The bench then told Sibal the plain consequences of his submissions first, “Once Article 370 clause 3 goes out of operation for all intents and purposes. 370(1) has a permanent character in the Constitution… You cannot amend Article 370 using Article 368's power because of the restraint imposed by the proviso, which again takes you back to Article 370, therefore even the power to amend Article 370 is within the fold of Article 370 and not Article 368. So, we are carving out a position of a provision of the Constitution which lies even beyond the basic feature doctrine?”

Sibal said the court should not say that as it has not been tested yet, whether it is higher than the basic feature of the Constitution or not. "What is left with Article 370, there is no residuary power of the state for all intents and purposes, and it is fully integrated, he said.

"In other words according to you, there is no solution to Kashmir within the Constitution. Ultimately that is the argument — that the solution has to be political, outside the Constitution," the bench said.

Sibal said it is a problem looking for a solution and the court was not have to provide that solution.

The bench said all solutions would have to be within the framework of the Constitution.

"It is within the framework and who says it is not within the framework and isn’t Article 370 a classic form of federalism and there is nothing unconstitutional about it," Sibal said.

The bench said it was always like 'allow Article 370 to operate and let the process of integration get over and then concurrence and consultation happens' but at what time integration is over is not hedged in the Constitution of India. Silences in Article 370 left it to the wise act of both the sides of J&K and the Union of India, it said.

Sibal said the Constitution has to be interpreted and not look at what the silences in the Constitution are.

The hearing will resume on Tuesday.