Supreme Court hearing on Article 370 abrogation | Day 15

In response, Sibal says– ‘Correct, so then he would have had to make a recommendation that they are not functioning in accordance with provisions of the Constitution - because the governor was ruling for 6 months. You never dissolve the assembly immediately because then you have to hold elections. The democratic process cannot be stultified.’

Addressing Sibal, CJI Chandrachud asks– ‘Suppose the dissolution (of J&K Assembly) is incorrect, the consequence would be that at the end of 6 months, the legislative assembly had to be restored? Council of ministers has to be formed. So taking your argument to its logical conclusion that the dissolution was wrong and the governor had to restore the legislative assembly, in which case, can the Government of India not have exercised power under Article 356?’

Sibal says– ‘The process under Article 356 [President’s Rule] is that you keep the assembly in suspended animation if you find that there is no possibility, after imposing Article 356, you dissolve and hold elections. ‘

Sibal says that a political process must have a political solution.

To this, CJI Chandrachud says– ‘ So according to you, there is no solution to Kashmir within the Constitution. Ultimately that is the argument - that the solution has to be political.’

Summarising the crux of Sibal’s argument, CJI Chandrachud says–

‘The sequitur of your submission on the proviso to clause (3) of Article 370 is that once the constituent assembly has formulated the constitution of J&K, the proviso ceases to have an existence. In which case, 370 assumes a permanent character.’

Sibal responds by saying– ‘I can only say that either we interpret Article 370(3) in its text and context or find something that is not there.’

To this, CJI Chandrachud says– ‘To accept your argument, we will have to read a further condition in the proviso that the recommendation of the Constituent Assembly has to be in the same terms as the action proposed to be taken by the President. But that is not there in the proviso.’

Sibal adds that to date the proviso has not been interpreted in the fashion that the respondents are seeking to interpret.

Addressing Sibal, CJI Chandrachud says– ‘Except for the provision for permanent residents - section 6, which finds its mirror image in Article 35A, every other provision was a mirror image of the Indian Constitution. What is that an indicator of? That whatever is happening there is really the incorporation of what is happening in the Union of India.’

Sibal submits– ‘Let me show some myths portrayed here– Parliament has plenary powers under the Constitution. It is actually the contrary. The power of the Parliament to make laws is limited by Article 370. It is a limitation on Parliament to make laws. It stares you in the face and you are talking about plenary power. Where is the plenary power? It is the council of ministers that will decide, not the Parliament. It was to ensure that there was slow integration of J&K to India through a process that was easy, through a process that allows executives to communicate with each other.’

Sibal argues that J&K had no links with India geographically and that the two principles on the basis of which accession had to take place were contiguity and population.

‘J&K was the only state in India where a special dispensation was made- for reasons which were domestic, for reasons which were international. So the argument that there should be uniformity is bereft of historical context’, he adds.

Sibal begins his rejoinder submissions.

He says– ‘ I was somewhat pained when one counsel argued that we respect the sentiments of people of J&K but you must also respect our sentiments. We cannot produce this case to an emotive, majoritarian interpretation of the constitution of India. All residents in J&K are citizens of India. If historically there is an article which gives them certain rights, they are entitled to defend that as a matter of law. To say that you must respect our sentiments as if they are somebody else itself is creating a kind of chasm it shouldn’t be creating.’

Sibal says– ‘You cannot be a member of Lok sabha without abiding by the Constitution of India. There is an oath he has taken. There is an affidavit filed there.’

To this, CJI Chandrachud asks Sibal to instruct Mr. Lone to file an affidavit by tomorrow.

We will hear you for Mr. Lone as well. There is no difficulty. He has come to our court, we are duty bound to hear his submissions. All that we want to say here is that everyone we have here, because we have had people from across the political spectrum in J&K, it is welcome. But all of them have come in one spirit - which is that they abide by the integrity of India.

Sibal points out that there is also another petitioner- Justice Masoodi and that he can argue and represent him. He requests the court to not derail pure legal submissions.

CJI Chandrachud says– ‘We proceed on the basis that he is willing to file an affidavit before our court that he owes allegiance like any other citizen of India and that J&K is an integral part of India. ‘

SG Tushar Mehta adds that the affidavit must specify that Mr. Lone does not support terrorism and secessionism.

Justice Khanna says– ‘When you argue, you accept the sovereignty of the people of India. You accept that J&K is an integral part. When your client says something outside this court... probably then he is also accepting there was an issue to be dealt with.’

Sibal responds by saying – ‘What has happened, it will only lead to media coverage. Let us not go that route. We are arguing a pure constitutional issue. There was a speaker of the BJP who was present there when this allegedly happened. There are some people who asked him to say something he didn’t say. It is not part of the record, it is withdrawn, it’s deleted. BJP speaker was there. He was asked to say something which people ask other people to say on the streets of this country. Why do we need to go into this?’

CJI Chandrachud says– ‘Let us reflect on it...Mr Sibal, when he invokes the jurisdiction of our Court under Article 32 of the Constitution, he necessarily abides by the Constitution.’

Sibal says– ‘Ask him to file an affidavit, I have nothing to do with it.’

Solicitor General Tushar Mehta says– : ‘It is your client.....It is one thing for Mr Sibal to deprecate it. A litigant before your lordships has said...’

Sibal says in response– ‘I am not concerned with that. If he has said it, in what circumstances, is it recorded, you ask him for an affidavit. I am not standing for him or what he said, if he said it.’

To this, CJI Chandrachud asks– ‘Mr Sibal, do we take it that Mr. Lone unconditionally accepts the sovereignty of India and that J&K is an integral part of India?’

Sibal says– ‘He is a member of Parliament today. He has sworn to the Constitution of India. He is a citizen of India. How can he say otherwise? And if anyone has said it, at my level, I deprecate it.’

Justice SK Kaul points out National Conference party leader Mohammad Akbar Lone’s pro-Pakistan slogans in the Jammu and Kashmir Assembly in 2018

Addressing Sibal, Justice Kaul says– ‘They say that your first petitioner (Mohammad Akbar Lone) has said something which is not in sync...’

Article 370 case: SC asks Lone to file affidavit pledging allegiance to Constitution

Govt, J&K admin & respondents inform SC: NC leader Lone raised "Pakistan Zindabad" slogans in J&K Assembly & supported secessionist forces. SG Mehta demands Lone file affidavit pledging allegiance to Indian Constitution & urges SC to act to prevent others from doing same.

Senior advocate Kapil Sibal says– ‘At the outset, I wish to state that this case has been argued at several lengths and most of them unsolicited, without reference to the arguments made by us. I don’t think anyone on this side has challenged the sovereignty of India. ‘

Agarwal points out that the Maharaja of J&K had already recognised the supremacy of the Indian constitution and accordingly Article 1 of the Constitution was enforced.

‘The Maharaja who was not a sovereign could not have passed a better title than what he had. If he was not a sovereign, the constituent assembly could never have been a sovereign constituent assembly– could never have established a sovereign constitution’, he adds.

Advocate Kanu Agarwal submits– ‘Federal diversity in the Indian Constitution exists on a two-dimensional plane. At the center would be the classical understanding of a state. To the right of it would be states with limited special features like Gujarat or Maharashtra. Thereafter would be states under the fifth or sixth schedule. To the right end of it was the erstwhile Article 370. What petitioners forget is that there is a scale to the left of it as well. The scale to the left is the union territories with the legislature, the Union Territory of GNCT of Delhi, and perhaps pure union territories. Therefore, federal diversity is undoubted. Diversity is a constitutional fact but not all facts can be elevated to the basic structure.’

Kumar contends that the impugned Constitution Orders are reflective of transformative constitutionalism. He says that they ensure that the Constitution of India with all its plenary scope applies to J&K and make provisions for the realisation of rights.

‘The challenge of the petitioners is a contradiction in terms because this is a case where the application of the Constitution of India is sought to be challenged’, he adds.

Addressing the contentions of the petitioners, Kumar submits–

‘What they are saying now is that asymmetric federalism is being recognised. Now please stretch this and say that multi-symmetric federalism of Article 370 should also be taken to be a basic feature or facet of federalism....Today what they want to do is- equate Article 370, which is temporary, with Article 371 which is special provisions. That is why I say it is a derivate argument they want to make.’

Kumar says that his clients have suffered because of Section 6 of the J&K Constitution and Article 35A of the Indian Constitution as applicable to J&K.

‘I have given the case of how around 8700 people left that place during partition. Today, after the promulgation of impugned COs, at least 23,000 people have received domicile certificates’, he adds.

Article 35A took away fundamental rights while giving special rights to permanent residents of J&K, says CJI

Chief Justice of India D.Y. Chandrachud said Article 35A, which empowered the Jammu and Kashmir Legislature to define “permanent residents” of the State and provide them special privileges, denied fundamental rights to others. The Chief Justice noted that Article 35A had even granted immunity from judicial review to the special privileges.

Kumar says– ‘The rights perspective is the decisive factor in determining the tenability of the challenge mounted by the petitioner. The rights perspective will trump all allegations of procedural infirmities.’

Jethmalani argues – ‘All that the amendment to Article 367 did was to recognise an implicit provision. It was not only synonymous but also its successor. CO 272 did not make a substantive change. It made a clarificatory change which was already implicit.’

In response, Jethamalani says– ‘This was deleted because, after the dissolution of the Constituent Assembly, the constituent power in J&K was now the legislative assembly. The power of amendment under Article 368 is in virtue of constituent power.’

CJI Chandrachud remarks– ‘ The only difference is that the legislature which exercises the power of amendment is not a constituent assembly, it is exercising a constituent power.’.

CJI Chandrachud says– ‘ The fact still remains that after the Constitution of J&K was framed on Jan 26, 1957...Article 367(4)(d) was again amended to delete clause (d). So that equivalence between constituent and legislative assembly ceases the moment the Constitution of J&K is framed.’

Jethmalani submits that the Constitution Orders issued from 1948 onwards indicate that the Constituent Assembly and Legislative Assembly insofar as they apply to the Constitution of India are synonymous.

Jethamalani says – ‘ All documents from 1948 to 1950- all constitutional documents indicate that a constituent assembly for the purpose of framing a constitution was necessary. Which is why Article 370(3) referred to the Constituent Assembly. This does not mean that once the Constituent Assembly completed its task- which was the task of framing the constitution, Article 370(3) would have no meaning and it would be otiose.’

Jethmalani argues that Section 147(c) of the J&K Constitution is an acknowledgment by the State of J&K that they cannot touch the Constitution of India as applicable to the state of J&K.

In response, Jethmalani says– ‘Article 370(3) is indicative of the fact that ultimate legal sovereignty, in the sense that you can get away with the tunnel altogether, that ultimate legal sovereignty rests with the Union of India.’

CJI Chandrachud asks- ‘So you accept that sovereignty has two connotations- one, external that vests with Union, and internal sovereignty which is then distributed between Union and State?’

Jethmalani argues - ‘ Have a look at our Preamble. The word ‘sovereign’ is key here. In contrast, see the J&K Constitution Preamble. The preamble makes no mention of sovereignty. It defines the existing relationship of the Union and the state. It is an acknowledgment of the union’s sovereignty over the state. The permanent residents of J&K are citizens of India. Though Mr. Lone may sometimes behave like it is not so.’

Jethmalani says- ‘My clients are restricting themselves to the challenge to Article 370(3) and the proviso as also to the amendment to Article 367.

He adds– ‘..As far as political sovereignty is concerned, it rests with the Union, qua the state. A simple look at the Preamble would show that. The preamble of the two- the Union and the State of J&K would reveal that.’

Senior Advocate Mahesh Jethmalani is appearing for intervenors – the members of the Gujjar Bakarwal community in J&K.

He says that they are members of a Scheduled Tribe (ST) and constitute 73.25% of the total ST population of J&K.

ASG Nataraj submits- ‘ It is a unique, extraordinary power conferred on the President to abrogate or change- which has the flavour of constituent power, executive power, and legislative power. That is a plenary power conferred on the President. Such an extraordinary power should not be read with any limitations and it must be given the fullest meaning.’

Agreeing with the contention of ASG Nataraj, Justice Sanjiv Khanna says- ‘Mr Nataraj, what you are probably trying to highlight is that the argument that the federal structure gets affected because of abrogation of Article 370 should not be accepted for the reason that the federal structure is protected by Article 368.’

CJI Chandrachud says- ‘ But equally, the adaptation to the Constitution ensured that even in the matter of amendment, the President still has to go through the route of Article 370(1).’

In response, ASG Nataraj says – ‘Reading these two articles together in a different language will make either of them redundant.’

ASG Nataraj compares Article 368 and Article 370 by saying -

‘Kindly have a look at Article 368 in juxtaposition to Article 370...Article 368 recognises federalism in the matter of amendment to the Constitution. The collective consent theory is introduced under Article 368 for the purpose of amending the Constitution. When it comes to Article 370, the language is just a ‘recommendation’’.

Outlining his submissions, ASG KM Nataraj says that Article 370 is the only provision in the Constitution that has a self-destruction mechanism and that the continued application of Article 370 is opposed to the basic structure of the Constitution. He adds that the doctrine of federalism has no application so far as the process under Article 370 is concerned.

Opposing such a submission, CJI Chandrachud says- ‘This might be a little too far fetched because then that would be to postulate that original Article 370 was violative of basic structure...You cannot invite us to hold in your favour on an unstateable proposition.’

Giri says that with the abrogation of Article 370, all provisions of the Indian Constitution became applicable to J&K and J&K consequently became a State at complete par with all other states.

He adds- ‘If Article 370 is resurrected, that would also be violative of the basic structure of the Constitution.’

Giri says that Article 370 carved out an area that is not in sync with the general federal features of the Constitution for the rest of the country and the Union.

‘This sets out the relationship between the Union and J&K at a plane....I am not saying higher or lower, I am saying at a plane different from the constantly interworking relationship between the Union and all other states’, he adds.

Giri says that Dr Ambedkar justified the slanting of power in lawmaking towards the Centre during the constituent assembly debates

CJI Chandrachud says - ‘We got your point. We will put it to Mr. Counsel during the rejoinder’.

Solicitor General Tushar Mehta says- ‘He (Lone) should file an affidavit that I owe allegiance to the constitution of India. Because I am before the highest court of the country. And he must say that I strongly oppose terrorism and secessionism in J&K. He must come on record. He is the petitioner in the lead petition. But for your lordships decision that the title should be Re Article 370, the case would be his name...after Shah Faesal’s withdrawal, he is the next... he is not an ordinary man. He is a member of Parliament!’

He also apprises the court that if nothing is done then it might encourage others and that the efforts of the nation to bring in normalcy which is substantially successful might be affected.

A counsel brings to the notice of the Bench that the petitioner and National Conference leader Mohammad Akbar Lone shouted ‘Pakistan Zindabad’ in the J&K Assembly in 2018 and supported secessionist forces. He says that he had filed an additional affidavit in this regard.

BJP Speaker, NC MLA's remarks stir controversy in J&K Assembly

The Bench has convened. The hearing has begun.

The Constitution Bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant will continue to hear arguments advanced by the Union government today. The Respondents are expected to complete arguments today.

The Centre on Thursday conveyed to the Supreme Court its inability to commit to an exact time period within which the Union Territory of Jammu and Kashmir would be restored to full Statehood. The Union government, however, said Jammu and Kashmir was ready to hold elections “any time now”.

Read more here.