Supreme Court hearing on Article 370 abrogation | Day 1

CJI DY Chandrachud: We can conclude this tomorrow.

Sibal: Deeply obliged.

The bench rises for the day. Hearing to resume tomorrow at 10:30am.

‘You want to abrogate 370, abrogate it. You want to integrate in India completely, say it. But that’s a political act. That political act cannot be exercised by Parliament, a legislative body’, Sibal says. He adds that a legislative body is controlled by the Constitution and its ambit is restricted to it.

‘You can change the boundary of a state, you can bifurcate boundaries of a large state to make smaller states. But never in the history of this country has a State been converted into a Union Territory’, Sibal says. He also points out that in May 2019 parliamentary elections had taken place in J&K and the abrogation took place just three months after that.

‘So you can hold parliamentary elections but you will not hold state elections?’, Sibal adds.

Sibal contends that the Parliament exercised the will of the people of J&K when they abrogated Article 370. He adds that they took upon themselves the constitutional responsibility of presuming that they are now the legislature; the Constituent Assembly and will accordingly exercise the will of the people of J&K.

Castigating such an approach, Sibal asks, ‘Is that possible constitutionally? Is that envisaged in 370? Is it not an exercise of political power?’

Sibal says that nobody can deny that the people of J&K are an integral part of India. But there exists a special relationship– a unique relationship as reflected in Article 370 itself.

‘You can’t jettison that except by following a process ordained by law’, Sibal says.

Sibal argues that the intent of the government of the day was not to perceive Article 370 as a ‘temporary provision’ that is it will exist until it is abrogated. He says that such abrogation of the provision could only be done through a ‘political act’ and not a constitutional procedure.

‘Such a political act cannot be determined by the Parliament of India. It’s not in the remit of the Parliament to take a political decision to abrogate 370’, he adds.

Sibal refers to the statement of Sheikh Abdullah from the Constituent Assembly Debates which reads as follows –

‘It is one of our commitments to the people and the Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the state for framing its Constitution.’

Sibal argues that a commitment to this effect was made. ‘We, in hindsight, in 2023 can’t interpret a provision except on its terms. We are here to interpret the Constitution. We are not here to legitimise a process which is inconsistent with the express terms of the Constitution’, he adds.

Sibal argues that the residuary power (i.e. matters that fall neither in the category of matters in the IOA which have been ceded by the Maharaja to the Domini’s power nor matters which fall in the Concurrent or the State List) always lay with the State legislature of J&K and that this was the basis on which the accession took place.

Sibal refers to Article 370 of the Constitution.

He highlights that under the provision the Parliament can make laws with respect to the State of Jammu and Kashmir only ‘in consultation’ with the Government of the State.

The Bench has reconvened. The hearing has resumed.

The Bench rises for lunch. The hearing will commence at 2pm.

Sibal submits that Article 356 of the Constitution under which the President’s rule is imposed in a State is supposed to be a temporary position and is not intended to decimate democracy.

‘What is the purpose of Article 356- to restore democracy. Is the intention behind 356 to decimate democracy?’, Sibal asks.

CJI Chandrachud orally remarks that the acceptance of the sovereignty of the dominion of India was complete for all intent and purposes. He adds that the J&K Constituent Assembly reserved some rights over certain legislative subjects only.

‘So the accession was complete..consistent with that, they said that in clause (3), the President would have the right to abrogate 370’, the CJI adds.

Responding to this Sibal enumerates that the Constituent Assembly has been specifically mentioned in clause 3 of Article 370 which shows that there was an intent for the Constituent Assembly to play a role in the abrogation of Article 370.

‘You have to see the historical perspective in which they signed the IOA. No one disputes they’re integrated in India but subject to a constitutional provision’, Sibal says.

Justice SK Kaul asks addressing Sibal, ‘If an elected assembly wants to abrogate Article 370 then also it is not possible?’. Sibal responds in the negative.

To this, the CJI says that such an argument only stands if it is accepted that Article 370 becomes permanent after the Constituent Assembly ceases to exist.

‘If the hypothesis is not accepted then the only way is to assert that a pre-independence agreement has to be enforced.. Can a Parliament of the State to which it has agreed to merge into have limited powers in the State?’, the CJI asks.

Addressing Sibal, Justice SK Kaul asks, ‘So you are saying that after 1957, Article 370 could not be abrogated?’.

CJI Chandrachud asks if even after the completion of the tenure of the Constituent Assembly, clause 3 of Article 370 will continue to operate.

Clause 3 of Article 370 reads as follows- ‘Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification’.

CJI Chandrachud enquires from Sibal what happens to Article 370 after the lapse of the Constituent Assembly which was supposed to be in force only from 1950 to 1957.

‘No constituent assembly can have an indefinite life.. so what happens to the proviso..’?, the CJI asks.

Sibal argues that there was this understanding between the Union government and the State that there will be a Constituent Assembly that will determine the future course of action as to whether Article 370 should be abrogated or not.

‘So you had to have the recommendation of the Constituent Assembly before you could efface 370. That is what the Constitution makers themselves thought in 1950...How could it change?’, Sibal says.

Sibal elaborates that with time the subjects that the Union of India could legislate upon with respect to J&K were broadened by subsequent adaptation orders. He points out that this was however always done by consulting the State of J&K.

He submits that this collaborative ‘unique constitutional structure’ was suddenly invalidated by the Governor and the Parliament without any consultation with the State of J&K.

Sibal says that the government of the day had accepted the relationship with the J&K government lies on a separate footing and that provisions of the Constitution of India unless made applicable through a Presidential Order and specifically agreed to by the J&K Government will not apply to the State.

He adds that the residuary power vests with the State and that is how Article 370 came into existence.

‘It was a collaborative relationship. There was a constant dialogue going on, which is why most of the laws remained applicable. In a sense, they were incorporated separately in the Constitution of India in application to J&K’, Sibal says.

Sibal apprises the Bench that no revised IOA was signed by the ruler of J&K. He refers to The Constitution (Application to Jammu and Kashmir) Order, 1950, which came into force on 26 January 1950.

He says that matters in the First Schedule to this Order were declared to correspond to matters ceded to the Union of India through the IOA and consequently the power of the Parliament to make laws for J&K was limited to such matters.

Sibal refers to the Maharaja’s Proclamation on March 5, 1948, appointing a Popular Interim Government

CJI Chandrachud enquires whether the subjects specified in the Instrument of Accession (IOA) correspond to the specific entries in the Government of India Act. Sibal responds that he will find out which part of the Act covers such entries.

Sibal reads from the original Instrument of Accession.

1947: Maharaja Hari Singh signs Instrument of Accession

The prelude to it was an intricate maze.

Sibal reads Maharaja Hari Singh’s letter to Lord Mountbatten in the wake of Pakistan’s invasion of J&K in 1947.

He submits that Hari Singh did not have a choice considering the dire circumstances and that he never wanted to accede.

Sibal argues that the Indian Parliament cannot pass a resolution and say that they are the Constituent Assembly since they are caged by the provisions of the existing Constitution.

He adds that if such a proposition is accepted then it has enormous ramifications for the future of the country and that is the core issue to be decided in this case. He further submits that the Parliament cannot convert itself and declare itself to be the legislature of J&K and that Article 354 of the Constitution does not authorise such an exercise of power.

The Union Home Minister Amit Shah introduced two statutory resolutions in the Rajya Sabha on August 1, 2019. The first was to recommend that the President Ram Nath Kovind issue a notification rendering Article 370 inoperative. The second was to accept the Jammu and Kashmir Reorganisation Bill.

Watch here

The President’s notification of the Constitution (Application to Jammu and Kashmir) Order of 2019 of August 5 amends Article 370 of the Indian Constitution and scraps its 65-year-old predecessor, The Constitution (Application to Jammu and Kashmir) Order of May 14, 1954.

Read the full story here

Sibal submits that the court has to determine what exactly a ‘Constituent Assembly’ stands for. He argues that a constituent assembly stands for enacting a Constitution for keeping in mind the aspirations of the people. He highlights that the functioning of a Constituent Assembly is a political exercise especially since a Constitution is itself a political document.

Sibal contends that the argument that the Constitution of India was always applicable to Jammu and Kashmir emanates from the fact that over time there were several orders issued which were incorporated into J&K’s Constitution and thus most of the powers were in tandem with the Constitution of India.

He adds, ‘All laws were applicable. Therefore, there was no reason to take it away’.

Sibal argues that in this matter the interaction between 4 legislatures needs to be examined – 1. Constitution of India; 2. Constitution of India as applicable in J&K; 3. Constitution of J&K; 4. Article 370.

Sibal submits that the petitioners stand before the court on the premise that the integration of Jammu &Kashmir into India is ‘unquestionable, was unquestionable, and always will remain unquestionable’.

CJI Chandrachud says that the live-transcript of the proceedings will be made available by the end of the day as previously done for the hearing concerning the Maharashtra political crisis.

Outlining the issues involved in this case, Sibal argues that the court has to decide whether the Governor of a State could have kept the Assembly under suspension before the imposition of Article 356 of the Constitution [President’s Rule].

Senior advocate Kapil Sibal submits that this is a historic moment as it has taken 5 years for the apex court to hear this case and that for 5 years there has been no representative government in Jammu & Kashmir (J&K).

He adds that it is also historic as the court will examine history to determine whether the procedure adopted by the Parliament was consistent with what democracy stands for and whether the will of the people of Jammu and Kashmir can be silenced.

CJI Chandrachud says that the cause title of the case will not include any petitioner’s name as is generally the practice. Instead, it will read as ‘In Re : Article 370 petitions’.

CJI Chandrachud enquires about the time allocated to each arguing counsel. Senior Advocate Kapil Sibal says that he will commence arguments for the petitioners.

The Bench has convened. The hearing has now begun.

The Constitution Bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant will commence hearing arguments from 10:30 am today.

The hearing will be made available live on the Supreme Court’s YouTube page.

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