In the first session of yesterday’s hearing, the bench heard the counsel for intervenors supporting the abrogation, as well as the Central government.
Senior Advocate V Giri began by submitting that if the abrogation of Article 370 were undone, then the federal working structure of the Constitution would ‘meet more obstacles’, in violation of the basic structure doctrine.
“Then it would mean that the original Article 370 abrogation would also be violation of the basic structure. You cannot make us hold in your favour in a provision which cannot be stated“, the CJI replied.
Additional Solicitor General KM Nataraj, appearing for the Union government, said that Article 370 is the only provision in the Constitution that has a self-destruction mechanism but did not confer any kind of rights.
“This article has a flavour of constituent, legislative and executive power. When plenary power is entrusted on the President, it should not be read with any kind of restrictions. Such extraordinary power need not be read with any kind of restrictions. It should be given fullest meaning and applied without any restrictions“, ASG Nataraj argued.
Justice Gavai asked if one can ignore the provisos to the Article that put a limitation on how it can be repealed. The ASG replied that the same cannot be equated with the procedure to be followed in Article 368 (dealing with the procedure to amend the Constitution).
Senior Advocate S Guru Krishnakumar said that examining the rights perspective in this matter will trump all allegations of procedural infirmities.
“They are saying asymmetric federalism is recognised and now stretch it.. Today, they want to equate Article 370 with Article 371 which is a special provision. The impugned COs are a reflection of transformative constitutionalism. Challenge of petitioner is contradictory in terms; the effect of the CO is that the whole constitution applies to the State. This change is for perpetuation of vested rights“, the senior counsel added.
Source: Barandbench
