Article 370: Kapil Sibal's comment on ex-CJI Ranjan Gogoi irks CJI Chandrachud

New Delhi: The Court One chamber of the Supreme Court reverberated with intensity on August 8, 2023, as the constitutionality of Article 370 came under renewed scrutiny during the much-anticipated hearings on the third day.

Article 370, a constitutional provision that conferred special status upon the erstwhile State of Jammu and Kashmir, has been a subject of intense debate since the Central government's decision to revoke it in 2019, leading to the region's bifurcation into two Union Territories.

Presiding over the proceedings was a distinguished Bench, helmed by Chief Justice of India, D Y Chandrachud, and composed of Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. This bench holds significant sway, as it tackles over 20 petitions challenging the Article 370 dilution, each carrying immense implications for the country's constitutional fabric.

The ongoing hearings, which commenced on August 2, 2023, started with a crucial query directed at the petitioners: Was Article 370 intended to be a permanent or temporary provision, as envisioned by the framers of the Constitution and the Article itself?

A particular focus was placed on whether the Article's permanence could be inferred solely from the dissolution of the Constituent Assembly of Jammu and Kashmir in 1957, which held the authority to recommend its deletion.

On the third day of these intense hearings, senior advocate Kapil Sibal took the floor again to present supplementary submissions on behalf of the petitioner. However, the Bench expressed reservations about entertaining additional arguments, concerned that doing so might set a precedent of endless submissions, potentially complicating future judgments.

During the hearing, Sibal strongly contested the amendment of the Constitution through executive actions, emphasizing that such manoeuvres could not alter the Constitution's application to Jammu and Kashmir.

The Court also delved into the intricate relationship between Article 370 and Article 368, which grants the power to amend the Constitution, with Sibal raising questions about the roles of the President and Parliament in the amendment process on Article 370 under the then circumstances.

During these proceedings, the Judges grappled with the notion of Article 370's amendable and unamendable scenario after the dissolution of the Constituent Assembly. They thoroughly examined the implications of Article 370(3), which grants the right to amend the Constitution, exploring its complexities in-depth.

Drawing from examples in other constitutional democracies, such as the United Kingdom's experience with Brexit, Sibal sought to illustrate the delicate balance between executive power and parliamentary oversight.

As the day's proceedings adjourned for the day, the resolute determination to delve deeper into the intricate legal aspects surrounding Article 370 remained evident.

The nation and the world at large await the Supreme Court's judgment on this landmark case, well aware of its potential to reshape India's constitutional landscape profoundly.

The weighty legal matter continues to command the highest echelons of India's judiciary, its outcome poised to leave an indelible mark on the nation's legal history.

The nation's collective gaze remains steadfastly fixed on the unfolding events within the solemn chambers of the Supreme Court. Senior Advocate Gopal Subramanium is scheduled to continue with his arguments tomorrow, further contributing to this momentous legal saga.

Chief Justice DY Chandrachud responded when Kapil Sibal flagged former CJI Ranjan Gogoi's comment on basic structure: Barandbench.com

In the ongoing Constitution bench hearing of the Article 370 case, a reference to former Chief Justice of India (CJI) Ranjan Gogoi's recent comments on the basic structure doctrine came to the fore. Senior Advocate Kapil Sibal alluded to the subject before a bench led by Chief Justice of India DY Chandrachud.

As the senior counsel made his remarks, CJI Chandrachud offered a response, emphasizing that the opinions of retired judges are not binding on the court. "Once they cease to be judges, they are opinions, not binding diktats," Chief Justice Chandrachud stated, underlining the non-binding nature of such expressions.

Parliament does not discuss what happens in court and court does not do so.. everyone has freedom of speech and expression," Solicitor General Tushar Mehta chimed in.

Former Chief Justice of India (CJI) and nominated Rajya Sabha Member of Parliament, Ranjan Gogoi expressed his reservations with the basic structure doctrine yesterday while supporting the passage of the Government of NCT of Delhi (Amendment) Bill, 2023.

While discussing the contentious Government of NCT of Delhi (Amendment) Bill, 2023, in the Rajya Sabha, former CJI Gogoi expressed reservations regarding the basic structure doctrine. Citing a book by former Solicitor General of India (SGI) TR Andhyarujina on the landmark Kesavananda Bharati case, Gogoi questioned the jurisprudential basis of the doctrine of basic structure in the Indian Constitution.

Gogoi clarified that Article 239AA, under which the bill was passed, was not under challenge before the Supreme Court, thus asserting the bill's legitimate validity. His intervention in Parliament sparked discussions on the delicate relationship between the basic structure doctrine and constitutional amendments.

The Article 370 case before the five-judge Supreme Court bench involves a set of petitions challenging the Central government's decision to revoke Article 370, which granted special status to Jammu and Kashmir. One of the central arguments put forth by the petitioners is that the abrogation infringes upon the principle of federalism, considered an integral part of the Constitution's basic structure.