SRINAGAR: On the third day of the hearing in cases related to Article 370, the Court 1 witnessed intense arguments from senior advocate Kapil Sibal, representing the petitioner, MP, Mohammad Akbar Lone. The proceedings encompassed discussions on various legal intricacies, including the interpretation of Article 370, its amendability, and the relationship between Article 370 and Article 368, which empowers the amendment of the Constitution.
After a four year delay, the cases are being heard by a Constitution bench of the Supreme Court of India comprising Chief Justice DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. The court is scrutinising over 20 petitions challenging the abrogation of Article 370, which conferred special status on the erstwhile State of Jammu and Kashmir.
Sibal, on the third and the last day of his arguments, brought up a recent statement made by former Chief Justice of India Ranjan Gogoi in the Rajya Sabha, casting doubts on the validity of the basic structure doctrine. Gogoi’s statement stirred a brief exchange between Sibal and Chief Justice Chandrachud, who clarified that the opinions of retired judges are not binding on the court. (Interestingly, Sibal like Gogo is also member of the Rajya Sabha.)
Gogoi, it may be recalled here, expressed his reservations with the basic structure doctrine in the Rajya Sabha on Monday while supporting the passage of the Government of NCT of Delhi (Amendment) Bill, 2023, which seeks to dilute the powers of the elected government of Delhi over services. In his maiden speech Gogoi said that the basic structure doctrine has a “doubtful jurisprudence”.
Sibal’s arguments also focused on the constitutional validity of altering the status of a state to a Union Territory without consulting the people affected. He argued that the government’s actions, both in relation to Article 370 and the recent Delhi Services Bill, are indicative of a trend towards centralisation of power and disregard for the principles of federalism and parliamentary democracy.
Sibal argued that such constitutional issues are not tackled by an executive order without a reference to the people. “Where is the representative voice of Jammu and Kashmir? Have we heard them in last four years? You do away with consent by an executive act. You do not take their views. Where do we stand?” he argued. “See what happened in Brexit, a referendum was held,” Sibal offered the instance of the UK’s decision of leaving the European Union (EU), later in his arguments to illustrate the delicate balance between executive power and parliamentary oversight. Chief Justice responded in a constitutional democracy, seeking opinion of the people has to be through established institutions. “Any recourse to public will has to be through that. You cannot envisage a situation like Brexit. In a constitutional democracy, there cannot be anything like a referendum.”
Today, the hearing touched upon the historical context of Article 370, with Sibal referencing a speech by Sheikh Mohammad Abdullah, the first elected Prime Minister of Jammu and Kashmir, in which he highlighted the importance of remaining part of India due to its economic potential and principles of secularism.
Chief Justice DY Chandrachud praised the foresightedness of the Sheikh’s speech when he intervened after Sibal left part of the speech unread. “Interestingly, see how Sheikh Abdullah puts it. He says the most powerful argument which can be advanced in her (Pakistan) favour is that Pakistan is a Muslim state and a big majority of our people being Muslim, the state must accede to Pakistan,” Chief Justice observed as he read from Sheikh’s speech. “This claim of being a Muslim state is only a camouflage- it’s a screen to dupe the common man so that he cannot see clearly that Pakistan is a feudal state in which a clique is trying by these methods to maintain itself in power.”
The Chief Justice observed: “He (Sheikh Abdullah) had a vision in 1951 when he was speaking about economic interests, which the world is talking about today.”
However, the debate further revolved around whether Article 370 was intended to be permanent or temporary, particularly in the context of the dissolution of the Constituent Assembly of Jammu and Kashmir in 1957. The bench explored the implications of Article 370(3) and its relationship with Article 368 in terms of amending the Constitution.
As the hearing concluded for the day, the attention remains fixed on the courtroom, as these deliberations have the potential to reshape India’s constitutional landscape. The arguments put forth during these hearings reflect the complex interplay between legal interpretations, political decisions, and their impact on the country’s governance structure.
This was flagged by Sibal in his concluding remarks: “. If the voice of people is silenced by such executive acts then what is the future. This is a historic case, not for the present one only but also for the future. I hope the court stands up for it.”
The Supreme Court will continue hearing the case for two days this week. It is the turn of another senior advocate, Gopal Subramanium to make his arguments. He also has been allocated 10 hours for the arguments.
In the hearings, so far, there were only two main questions that the bench asked. Was Article 370 intended to be a permanent or temporary provision? What are the ways and means of undoing it if the people of Jammu and Kashmir also want it?
Interestingly, National Conference President Dr Farooq Abdullah, alongside several prominent leaders from the Jammu and Kashmir region, made an appearance at the Supreme Court during the proceedings. Following the conclusion of the day’s hearing, Dr Abdullah expressed his contentment with Kapil Sibal’s “robust defense” of Article 370.
Dr Abdullah emphasised his unwavering confidence in the Supreme Court’s ability to uphold justice and restore the rightful rights of the people of Jammu and Kashmir as well as Ladakh.
In Srinagar, in the meanwhile, the Jammu and Kashmir National Conference Spokesperson Imran Nabi Dar welcomed the Chief Justice of India’s praise for Sher-e-Kashmir’s foresight and vision during the ongoing hearing of Article 370 abrogation.
Welcoming his remarks, Dar said, “BJP and its affiliated parties have been taught a historic lesson today. The honourable CJI’s praise for Sheikh Sahib’s foresightedness is a slap on the face of those who have been incessantly working to discredit him. It’s a blow to those who have been working on the project to erase Sheikh Abdullah from J&K. Any clear-eyed assessment would reveal how towering Sheikh Sahib was, and how universal his ideas were. It’s high time for ruling BJP to shun its slavish sycophancy, prejudice bigotry and cease its mission “erasure”.”
Dar asked the government to shun its acrimony against Sheikh Sahib and restore names of gallantry medals and other insignias which were named after him.
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