'Breakdown of Constitutional Structure': Article 370 Hearing Continues on Day 2

The Supreme Court has started hearing the case, four years after the government abrogated Article 370.

(Photo: The Quint)

"The people who gave themselves this constitution are left out of the process. This is essentially a break down of the constitutional structure," Senior Advocate Kapil Sibal said, while representing the petitioners in the Article 370 case, on day 2 of the hearing at the Supreme Court.

Hearing begins: Four years after the government revoked the special status of Jammu and Kashmir (J&K) which led to the bifurcation of the State in 2019,  India’s apex court started hearing the petitions challenging the move on Wednesday, 2 August.

In the courtroom: As a five-judge Constitution bench of CJI DY Chandrachud and Justices SK Kaul, Sanjiv Khanna, BR Gavai and Surya Kant resumed hearing the case on Thursday 3 August, Sibal further asserted that the Legislature lacked the authority to recommend the abrogation of Article 370 in accordance with the provisions of the Jammu & Kashmir (J&K) Constitution.

He supported his stance by citing the Constitution (Application to Jammu and Kashmir) Orders of 1950 and 1954, wherein a 'solemn promise' was made that any legislation seeking to alter the boundaries of J&K would require the consent of the J&K government.

Strongly criticising the manner in which the abrogation process was carried out, the senior counsel deemed it a 'political act' and alleged that the Governor and the Union government were collaborating to invalidate Article 370.

"This is a pure political act. The governor and government were acting in tandem. They wanted to get rid of 370. Why would the governor on June 20, after withdrawal of support on June 19, suspend the assembly? Not allow any political affiliation, so a new government could be formed."

On Day 1: During the hearing on 2 August, Chief Justice of India (CJI) D Y Chandrachud questioned whether Article 370 fell beyond the scope of the Constitution's amending powers. Justice BR Gavai echoed similar concerns, inquiring whether Article 370 could be regarded as unamendable, considering that the Constitution is a living document.

Over the course of yesterday's hearing Sibal stressed that the abrogation of Article 370 amounted to the Parliament exercising the 'will of the people of J&K,' which is an exercise of political power and not within the jurisdiction of a legislative body.

He emphasised that the sudden nullification of the region's 'unique constitutional structure' by the Governor and the Parliament occurred without any consultation with the State of J&K.