Opinion | Article 370 Vis-a-vis Basic Structure of Indian Constitution 

The Indian Supreme Court’s query regarding the permanency of Article 370 raises profound questions about the nature of constitutional amendments and the idea of a Basic Structure. The concept of Basic Structure, as propounded by the Indian judiciary, is a foundational doctrine that delineates the contours of constitutional amendment power. It posits that certain features of the Indian Constitution are so integral to its identity that they cannot be altered or removed through amendments by the Parliament.

The argument regarding the status of Article 370 being akin to the Basic Structure is contingent on a holistic consideration of the constitutional history, interpretive jurisprudence, and the political nuances involved. Article 370, which accorded a special status to the region of Jammu and Kashmir, was initially envisaged as a temporary provision under Part XXI of the Constitution.

Supreme Court Contemplates: Could Article 370’s Permanency in 1957 elevate it to Basic Structure titled ‘Temporary, Transitional and Special Provisions.’ However, the contention that it attained permanency in 1957 is based on the premise that the Constituent Assembly of Jammu and Kashmir, which was empowered to recommend the abrogation of the Article, dissolved without making such a recommendation.  This argument, if accepted, would indeed raise a spectre of Article 370 being an integral part of the Constitution’s identity – a feature that might be considered part and parcel of the Basic Structure. However, the Basic Structure doctrine, as propounded in the landmark Keshavananda Bharati case, is not an exhaustive list but a judicially evolved concept open to interpretation and expansion. While the doctrine is definitive in its essence, it is fluid in its application, allowing for the inclusion of new constitutional features under its ambit based on evolving judicial understanding and socio-political contexts.

Analysing from a jurisprudential perspective, the question of whether a provision that was initially temporary can metamorphose into an unamendable part of the Basic Structure is a conundrum that could challenge the extant interpretive paradigms. The conventional understanding of the Basic Structure doctrine primarily encompasses features that are explicitly fundamental to the Constitution’s identity, such as democracy, secularism, and judicial review. If Article 370 were to be considered part of the Basic Structure, it would necessitate a paradigm shift in the interpretive methodology, leading to a broader understanding of the Constitution’s core.

This argument also invokes an important aspect of constitutional interpretation – the “living tree doctrine”. This doctrine suggests that a constitution is an organic and evolving document that must be interpreted in light of changing societal contexts and needs. Hence, if a provision like Article 370, initially labelled as ‘temporary’, is perceived to have become a permanent feature due to its longstanding application and the unique context of Jammu and Kashmir, it might be seen as an evolution of the Constitution reflecting the living tree doctrine.

However, the counter-argument is that the framers of the Constitution explicitly labelled Article 370 as a temporary provision, intending it to be a transitional arrangement. Accepting this provision as part of the Basic Structure might be seen as going against the original intent of the framers. Furthermore, the argument that Article 370 became permanent in 1957 might be construed as retrospectively applying a framework (the Basic Structure doctrine) that was not crystallised until the 1970s.

In this labyrinthine legal discourse, the Supreme Court’s hearings on Article 370 engender a state of anticipatory reticence in the region. This quiescence, however, is far from being a mere absence of noise, but a thunderous silence laden with the collective anxieties, aspirations, and apprehensions of the people of Jammu and Kashmir. It stands as a testament to the weight of the subject at hand, a subliminal acknowledgement of the profound implications that the Court’s verdict on the status and interpretation of Article 370 can have on the region’s future.

This silence is also emblematic of Kashmir’s intricate relationship with the Indian polity. Article 370, which once conferred a unique autonomous status upon Jammu and Kashmir and served as a bridge between the Union of India and the state, has been a contentious issue in the national political discourse. Its abrogation in August 2019, by way of a presidential order and the passage of the Jammu and Kashmir Reorganisation Act, heralded an unprecedented shift in this relationship. The silence that now shrouds the valley can be interpreted as a conscious pause, a collective intake of breath as the region and its people await the resolution of a legal question that will have a profound impact on their political identity and future.

The Supreme Court’s scrutiny of Article 370 is a herculean exercise in constitutional interpretation. It necessitates a careful dissection of the legal verbiage, an analytical understanding of the historical context, and a profound appreciation of the socio-political implications of the issue at hand. The hearings will have to navigate through complex questions of law, such as the interpretation of ‘temporary’ in the constitutional context, the validity of the use of Article 367 (an interpretive provision) to amend Article 370, and the applicability of the doctrine of Basic Structure to this contentious provision.

This intricate legal discourse is further complicated by the polyvocal nature of constitutional interpretation. The Constitution, a living document, speaks in different voices to different people. To the legal purist, it may present a panorama of principles, doctrines, and rules. To the sociopolitical observer, it may reflect the historical experiences, political aspirations, and societal dynamics of a nation. To the common man in Kashmir, it may represent the embodiment of their political identity and future. The Supreme Court’s interpretation of Article 370 will have to harmonise these multiple voices, creating a symphony of constitutional understanding that resonates with legal propriety, political pragmatism, and societal sensibilities. As the Supreme Court delves into the constitutional intricacies of Article 370 in its day-to-day hearings, the silence in Kashmir is a poignant reminder of the high stakes involved. It underscores the immense responsibility vested in the Court, the final arbiter of the Constitution, to unravel this Gordian knot of constitutional interpretation in a manner that respects the rule of law, upholds the principles of justice, and acknowledges the unique socio-political context of Jammu and Kashmir. It is a silence that awaits the echo of the gavel.

In the end, the question of whether Article 370 can be considered part of the Basic Structure is a multi-faceted one, with complex constitutional, political, and societal factors at play. The Indian Supreme Court’s deliberations on thisThe confluence of constitutional jurisprudence and political quietude in Jammu and Kashmir, as the Supreme Court of India embarks on an in-depth, day-to-day hearing of the contentious Article 370, evokes a complex tapestry of socio-political dynamics, legal intricacies, and historical contexts that are as convoluted as they are profound.

– Author is a journalist and a political analyst based in Delhi and can be reached at listenadnan@gmail.com