Scrapping Art 370 ‘mosaic of illegalities’: Sibal to top court

Tribune News Service

Satya Prakash

New Delhi, August 3

Faulting the nullification of Article 370 of the Constitution, which gave special status to the erstwhile state of Jammu and Kashmir, for procedural infirmities, senior counsel Kapil Sibal on Thursday termed it a “mosaic of illegalities” that can’t fit into the constitutional scheme.

On the second day of Supreme Court (SC) hearing on petitions challenging the constitutional validity of nullification of Article 370 and bifurcation of the state into two Union Territories, Sibal said it was a pure political act where the J&K Governor and the Central Government acted in tandem to get rid of Article 370.

The SC asked if there was no mechanism to abrogate Article 370 even when the J&K people want it. It also wondered that in case the now repealed provision can't be touched, will it not amount to creating a "new category" beyond the basic structure of the Constitution?

Sibal told a five-judge Constitution Bench led by CJI DY Chandrachud, "There is no council of ministers…no government in place. But he (Governor) sent a report that the government of the state cannot be carried out. There are no negotiations, no communication. This is an amazing piece of handiwork. This is a mosaic of illegalities."

Terming Article 370 of the Constitution as a basic feature of the Constitution, Sibal had on Wednesday asserted that Parliament can’t undo it without the consent of the state’s Constituent Assembly as required under the proviso to Article 370(3). On Thursday, CJI Chandrachud asked, “What happens when there's no Constituent Assembly (of J&K)? Do you create a fresh one? Can’t Parliament amend the Constitution exercising its powers under Article 368 to abrogate Article 370?”

Describing the Constitution as a live document, Justice Kaul said, “It's not static. Can you say that there is no mechanism to change it even when everyone wants to change it? Then you're saying that this can't be changed even if all of Kashmir wants it. What you're saying is that while other provisions of the Constitution may be capable of amendment through a process, other than the ones against basic structure, this (Article 370) is one provision which can never be amended?”

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