Supreme Court hearing on Article 370 abrogation | Day 3

Bench has risen for the day. The court will resume hearing tomorrow

Senior advocate Gopal Subramanian will be arguing next. He apprises the bench that he will be completing his submissions by lunch tomorrow that is on August 9.

Sibal concludes his submissions by stating –

‘All I can say is that this is a historic moment, historic not for the present but for the future of India. And I hope this court is not silent.’

Sibal says – ‘We stand at a situation where though the Constitution is a political document, its provisions cannot be manipulated or maneuvered for political ends. That is not how you interpret a Constitution. It is a political document but you can misuse it politically.’

Sibal submits that a Union Territory can be carved out of two or more States coming together but two Union Territories cannot be created in a State. He adds that the text of the Constitution and the fundamentals of a constitutional democracy do not permit it.

Referring to Article 3 of the Constitution, Sibal submits that J&K cannot be split into Union Territories using this provision. He adds that converting a State into a Union Territory would be contrary to the principles of a representative form of government.

To this, CJI asks –’ Textually, is this not possible?’

Sibal responds in the negative.

Sibal refers to the Supreme Court’s judgment in Sampat Prakash v. State Of Jammu & Kashmir & Anr (1968) to show that the Constituent Assembly of J&K did not desire for Article 370 to be abrogated.

The judgment can be read here.

Chief Justice D.Y Chandrachud refers to the Supreme Court’s decision in Krishna Kumar Singh & Anr v. State Of Bihar and says that it has been held that irreversible changes cannot be brought about by the exercise of Ordinance making power.

The judgment can be read here.

He argues that in the context of J&K, the Union government used its prerogative power to erase the opinion of the people of J&K completely.

Sibal submits that the Governor’s decision to dissolve the State Assembly was not on the advice of the council of ministers. He says that the Governor is not an omnipotent authority but a constitutional delegate.

‘What the primary institution cannot do, the delegate cannot do’, Sibal adds.

J&K | Governor's decision to dissolve Assembly 'based on material available to him from multiple sources'

The Mehbooba Mufti-led PDP and the Sajjad Lone-led People's Conference have both staked claim to form govt.

Sibal says that there has been excessive use of power under Article 356 and that the doctrine of proportionality is relevant in this context.

Sibal says that time and again in this country powers under Article 356 (President’s Rule) have been misused. He states further that everything done under the exercise of powers under Article 356 in J&K is contrary to the basic principles of federalism, democracy, and the principle of constitutional morality.

Sibal submits that the interaction of the values of the constitution of federalism, separation of powers, and democracy has to be taken into account. He asks if the President’s Rule can be imposed to make permanent changes in the Constitution.

‘Can constitutional change happen without consultation with the people of J&K despite an express provision in that regard? Can a State be downgraded to a Union Territory by Union on its own whim without consultation with the people? Those are the constitutional parameters to be applied to this momentous change bought by the exercise of majoritarian power’, Sibal adds.

Drawing from the principles cited previously, Sibal contends that the power under Article 370(1)(d) does not extend to abrogating Article 370. Similarly, the power under Article 356 of the Constitution does not extend to making non-restorative permanent alterations to the State’s constitutional status.

‘The power under Article 3 does not extend to effacing a character of a State into a Union Territory’, Sibal submits.

Sibal says that any power vested by or under the Constitution is in essence a limited power and that it is limited at the point in time when it is exercised. He adds that the exercise of any such power under the Constitution is limited by core constitutional principles and values.

Sibal refers to Presidential Orders C.O. 272 and C.O. 273. He says that while interpreting these orders their structural and historical context ought to be given effect. In case there is textual ambiguity or the possibility of another interpretation, the Court should not be adrift in a sea of pragmatism, he adds.

‘An interpretation that is more consistent with our constitutional values, namely, representative democracy, federalism, and constitutional morality should be preferred. That will ensure the smooth and harmonious functioning of the Constitution, Sibal argues further.

Sibal refers to Home Minister Amit Shah’s speech on August 5, 2019, while moving a resolution in the Rajya Sabha seeking to introduce a Bill to revoke all provisions of Article 370, as approved by President Ram Nath Kovind.

Amit Shah moves resolution to revoke provisions of Article 370, bifurcate J&K

The Home Minister also introduced the Jammu and Kashmir Reservation (Second Amendment) Bill, 2019.

The Bench has reconvened. The hearing has resumed.

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

Justice Khanna enquires –’ Let’s put it simply. When Article 356 is in operation, how will you effectuate clause (4) to Article 370(1)?’

Sibal responds –’I will, please let me reach that stage.’

Referring to clause (d) of Article 370(1), Justice Khanna says that under the provisions, the President is allowed to make modifications. He enquires about the procedure to be followed for the same.

Responding to this, Sibal argues that it is an interpretation clause and is not a clause to amend the Constitution.

‘..By interpretation, you cannot amend 370. You cannot substitute Constituent Assembly. What you cannot do directly, you cannot do indirectly’, Sibal adds.

Referring to the interpretation of Article 356 of the Constitution, CJI Chandrachud states –

‘Under Article 356, you have no power to amend the Constitution. Article 370 is a provision exclusively in operation of J&K. So the power they exercised was the power under clause (d) of Article 370(1).’

Justice Khanna remarks that the powers under Clause (d) of Article 370 are wider.

Sibal points out that except for land laws and personal laws, most Indian laws are applicable in J&K. He says that the objective of the abrogation of Article 370 was to send a political message.

Solicitor General Tushar Mehta says that the Parliament does not discuss what goes on in courts..

Sibal says -

‘As it is now one of your esteemed colleagues has said that in fact, basic structure theory is also doubtful.’

Responding to this, CJI Chandrachud says – ‘Mr Sibal, when you refer to a colleague, you have to refer to a sitting colleague. Once we cease to be judges, they are opinions, not binding facts.’

Former CJI Ranjan Gogoi says basic structure of constitution debatable 

Former Chief Justice of India Ranjan Gogoi, a Rajya Sabha member, said the basic structure of the Constitution has a "debatable jurisprudential basis". His remarks sparked protests from four women members, with Congress's K.C. Venugopal asking if the government endorsed the views.

Sibal states that through an executive order, one cannot change any provisions of the Constitution.

‘Because you have the majority. This majoritarian culture cannot destroy the edifice of what our forefathers gave us..They cannot possibly justify it. Unless a new jurisprudence comes to light that they can do whatever they like as long as they have the majority, Sibal adds.

Sibal says that powers under Article 356 power cannot be exercised by the Executive in this manner.

‘You have no power as the Executive. The Executive is only dealing with administration, it cannot amend’, he adds.

Addressing Sibal, CJI Chandrachud says –

’Suppose for a moment, they had not amended Article 367, suppose we are operating purely within the fold of Article 356- once a proclamation takes place under Article 356, two things follow – One, the President gets all powers of the State. Two, the power of state legislature is subsumed in parliament. So once the proclamation under Article 356 was issued- all powers vested in the Executive of J&K were transferred to the Union government. All powers of the state legislature were vested in Parliament. Then if Article 370(3) is capable of the interpretation, just as a hypothesis, that the power of abrogate is with the President.’

Article 356 of the Constitution (Provisions in case of failure of constitutional machinery in State) can be read here.

CJI enquires that if the Union government had to abrogate Article 370 why was an amendment to Article 367 required at all.

In response, Sibal says that it was required because they changed the definition of the Constituent Assembly to the legislative assembly.

‘They say that in proviso (3) of 370, the expression Constituent Assembly shall read as Legislative Assembly. So they amended Article 370’, Sibal adds.

Referring to the 2019 Presidential Order, Sibal says –

‘So you create a constitutional myth and assume in the absence of a council of ministers that there is a council of ministers. Then you pass a presidential order that even in the absence of a council of ministers the governor is acting on its aid and advice.’

Sibal reiterates that such an executive exercise is a ‘mockery’ and therefore the way Article 370 was abrogated constitutes a political act and not a constitutional act.

Sibal contends that the inception of the Constitution (Application to Jammu and Kashmir) Order of 2019 is constitutionally flawed. Reading from the order, he says –

“...the Governor of J&K acting on the advice of the council of ministers...” How can that be? There is no council of ministers.’

Explained | President’s Order scraps its predecessor and amends Article 370

The August 5 notification has been issued under Article 370 of the Constitution.

Sibal says that there would have been no Constitution of J&K if Article 370 was to be abrogated.

‘Parliament incorporated the provisions of the Constituent Assembly. Why? There was no Constituent Assembly in place, only a national assembly. This must have happened in collaboration with J&K...Now it had to be on the recommendation of the Constituent Assembly, so it had to be a temporary provision. It was temporary because there was nothing in place, not because this provision had to go’, Sibal adds.

CJI Chandrachud says that once it is assumed that the Parliament can amend Article 370 then such an amendment of Article 370 would be subject to criticism on the ground of morality, but not on the basis of a lack of authority.

CJI asks Sibal if the power to amend Article 370 is completely lost once the J&K constituent assembly comes to an end. [The J&K Constituent Assembly was dissolved on 26 January 1957]

To this, SIbal responds – ‘Let me not even go that far. I’ll assume that there is some power available - it may be Article 368’.

Article 368 of the Constitution can be read here.

The CJI enquires if Article 370 provides for a modality through which Article 370 itself would come to an end.

To this Sibal says that such a modality cannot be to convert a legislative assembly into a Constituent Assembly.

‘We have to find a modality in the Constitution, not outside of it’, he adds.

CJI Chandrachud orally remarks – ‘...The difficulty is this- assuming that that was why it was placed in Part XXI as temporary- is that submission itself enough to convert Article 370 into an unamendable and untouchable provision? Or did that require something more- a parliamentary intervention to convert that into a permanent provision?’

CJI states further –’Two ways that we can deal with this- one, though placed in Part XXI, Article 370 was never intended to be temporary; two, though temporary, the reason it was placed in Part XXI was pending the decision of Constituent Assembly of J&K.’

[Note: Article 370 is in Part XXI of the Constitution, titled “Temporary, Transitional and Special Provisions”. Article 370 is titled “Temporary provisions with respect to the State of Jammu and Kashmir”.]

CJI Chandrachud enquires – ‘This begs one question - could Article 370 which was envisaged as a temporary provision be converted into a permanent provision merely by proceedings of the J&K Assembly? Or was there an act required by the Indian Constitution - either in the form of a constitutional amendment or so?’

Sibal contends that the proceedings of the Constituent Assembly are essential in determining whether Article 370 was intended to be a temporary measure.

Addressing Sibal, the CJI states – ‘So your argument would be that proceedings of Constituent Assembly would indicate a reaffirmation of the arrangement under Article 370 as a long-term arrangement?’

Sibal responds in the affirmative.

Sibal points out that this (abrogation) is a political decision and not a Constitutional decision.

To this the CJI states – ‘But then the question is whether the constitution does or does not entrust that authority.’

Sibal: ‘That is all I am asking.’ He adds that the abrogation was a political act and whether Article 370 is a temporary provision or not is not an issue.

Addressing Sibal, CJI Chandrachud says- ‘In a constitutional democracy, seeking the opinion of people has to be through established institutions. So long as democracy exists, any recourse of will of people has to be expressed by established constitution. So you cannot envisage a Brexit type referendum. That is a political decision which was taken by the then government. But within a constitution like ours, there is no question of a referendum.’

Sibal points out that the abrogation was a political decision and that the opinion of the J&K people should have been sought. He cites the example of Brexit where a referendum was held.

Sibal argues that a unilateral executive decision cannot change the terms of a relationship that is constitutionally embedded in Article 370.

Sibal argues that provisions of the Constitution cannot be decimated by an executive act.

‘You cannot change the Constitution as applicable to J&K by changing Article 3.. .you cannot change legislative assembly to a constituent assembly by an executive act’, he adds.

[Article 3 pertains to the formation of new states and alteration of the areas, boundaries or names of existing states]

Referring to Abdullah’s speech, Sibal points out that the people of J&K gave themselves their Constitution just as the people of India gave themselves the Indian Constitution. ‘Central to all this is the will of the people’, he adds.

CJI refers to Sheikh Abdullah’s speech and points out that how speech mentions that Pakistan is a feudal state and that our interest would not be protected in a feudal Pakistan as compared to India where land reforms were taking place.

‘The most powerful argument which can be advanced in her favour is that Pakistan is a Muslim State, and a big majority of our people being Muslim the State must accede to Pakistan. This claim of being a Muslim state is of course only a camouflage. It is a screen to dupe the common man, so that he may not see clearly that Pakistan is a feudal State in which a clique is trying by these methods to maintain itself in power.’ [excerpts from speech]

Sibal continues to read excerpts from Sheikh Abdullah’s speech.

‘When the raiders were fast approaching Srinagar, we could think of only one way to save the state from total annihilation-by asking for help from a friendly neighbour. The representative of the National Conference, therefore, flew to Delhi to seek help from the Government of India.’

‘While accepting that accession, the Government of India said that she wished that “as soon as law and order have been restored in the Kashmir and her soil cleared of the Invader, the question of the states accession should be settled by reference of the people’.

Our future is with India: Sheikh Abdullah’s first speech in the Constituent Assembly

The Constituent Assembly of Jammu and Kashmir met for the first time on October 1, 1951 in Srinagar. The Constituent Assembly’s business for the initial few days included election for the President of the House and formulations of the rules of business. During the course, many members, including Prime Minister Sheikh Mohammad Abdullah made brief […]

Sibal refers to Sheikh Abdullah’s speech outlining the purpose of the Constituent Assembly of Jammu and Kashmir (J&K). It was Abdullah’s first speech in the Constituent Assembly and was made on November 5, 1951.

A dubious Constitution

The Constitution of Jammu & Kashmir is not legally valid because it was enacted by an Assembly that had been installed through a coup by the Centre in violation of Article 370 and had lost its representative character, moral authority and political relevance.

Sibal proposes to submit additional supplementary written submissions. To this, Chief Justice of India (CJI) D.Y Chandrachud says that if this is permitted then other counsels will also seek permission to do the same.

‘With the additional submissions, rejoinders, it becomes impossible to draft a judgement’, the CJI adds.

Senior advocate Kapil Sibal commences his arguments for the day.

The bench has convened. The hearing has resumed.

The Constitution Bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant will resume​

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

The Supreme Court on August 2 raised the question whether the President’s power to declare inoperative Article 370 of the Constitution, ​which granted special status to Jammu and Kashmir​, will not continue to hold the field after the dissolution of the erstwhile State’s Constituent Assembly on January 26, 1957. Read more ​here​.

The Supreme Court on August 3 asked whether Article 370, which gave special status to Jammu and Kashmir, is being equated to the Basic Structure of the Constitution.

A ​Constitution Bench headed by Chief Justice of India D.Y. Chandrachud was reacting​ to senior advocate Kapil Sibal’s submission that there was no constitutional process available to abrogate Article 370, and the provision had attained a “permanent character” after 1957 when the Jammu and Kashmir Constituent Assembly dissolved, leaving the Article unchanged. Read more ​here​.

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Supreme Court hearing on Article 370 abrogation | Day 2

Supreme Court hearing on Article 370 abrogation | Day 2