SRINAGAR: Asserting that Jammu and Kashmir’s integration in India is, was and will remain “unquestionable”, senior lawyer Kapil Sibal started his arguments before the 5-judge bench that will hear the bunch of petitions challenging the reading down of Article 370. The bench includes Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant with Chief Justice of India (CJI) DY Chandrachud leading it.
There were more than 20 petitions challenging the parliament’s resolution of August 5, 2019, that abrogated the Article 370 of the Constitution and sliced the erstwhile state into two federally governed Union Territories. The Court allowed two petitioners – Shah Faesal and Shehla Rashid, to withdraw their pleas on July 11, 2023. The bench will hear the case on a daily basis on Tuesdays, Wednesdays and Thursdays. The court will hear 18 lawyers and they have been assigned the time slots. Kapil Sibal, who represents the petitioner, Mohammad Akbar Lone, started the arguments and is expected to conclude on Thursday.
When the CJI asked Sibal to conclude his arguments by Thursday lunchtime, he said he will try but it might be difficult “since the historical context has to be heard”. To this, Justice SK Kaul commented: “Let us not be mired in history only. There are legal propositions also.” Justice Koul observed when the case was heard last time for four-five days, “it was argued for about 90 per cent”.
Offering the history of the Jammu and Kashmir’s accession with the Union of India, Sibal argued that Article 370 was not a ‘temporary provision’ because it had become permanent after the dissolution of Jammu and Kashmir’s Constituent Assembly. Its temporary provision as mentioned in Part XXI of the Constitution was based on the presumption that the Constituent Assembly will decide the future course but it dissolved without making any recommendation.
The 75-member Jammu and Kashmir Constituent Assembly came into being on October 31, 1951, and after 56 sittings in more than five years, adopted the Jammu and Kashmir Constitution on November 17, 1956, declaring, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India”. It ceased to exist on January 26, 1957. “From 1950 to 1957, only the constituent assembly could decide,” Sibal asserted.
Addressing the bench, Sibal raised lot many issues including the conversion of the state into two UTs, the denial of elections, issues of democracy and why Article 370 cannot be abrogated. Offering the evolution of the two constitutions, Sibal detailed how Article 370 cannot be abrogated – not even by the elected assembly. He insisted that constitution-making is a political exercise and not a law-making one.
“No one disputed that J&K is a part of India. There was this understanding between the Government of India and the State of J&K that there will be a constituent assembly which will decide what happens to Article 370 and that is why it was called a temporary provision,” Sibal argued. “Before Article 370 could be effaced, the concurrence of the constituent assembly was needed.”
“Look at Europe and making of nation states in Europe. There was large empires like Austria and Hungaria. It was break up of the empire, which led to the formation of the nation state. In India the process was opposite. There was disparity and there was 562 princely states and there were states with British crown and all had to be amalgamated. J&K was an exception,” Sibal argued. “You cannot jettison the people of J&K and decide and then what is the difference between this and the act of crown or annexation of Junagadh or Hyderabad. If you have agreed to a process which two sovereign authorities have accepted then must follow it or else it is the use of paramount power.”
Besides, his argument was that parliament cannot assume the role of a constituent assembly or representative of an area that is ruled by the central government directly. Sibal said the invoking of Article 356 (President’s Rule) is for restoring democracy and not to decimate democracy.
Sibal asserted that Jammu and Kashmir after accession in October 1947 retained residuary powers and avoided signing any revised instrument of accession. He said that various laws were extended to the state only on the recommendations of the Jammu and Kashmir assembly to the president of India because consistent dialogue between the political leadership had created a “unique structure”, which was federal in nature.
During the arguments, the bench asked various questions on the nature of various provisions to Sibal. Queries were about clauses B, C and D of Article 370. Clause B pertains to the power of parliament to make laws for the state, on matters governed under union and concurrent list. Clause C refers to substantive Article 1 of the Constitution of India and clause D refers to other provisions of the constitution which may be applicable under the orders of the President. Sibal’s arguments will continue on Thursday.
In Jammu and Kashmir’s political class, the day was hectic. While Omar Abdullah personally moved to attend the proceedings in the Supreme Court, Dr Farooq Abdullah was in Delhi and met the President. Mehbooba Mufti talked to the media briefly with a focus on the hearings. “We are here on behalf of the people of J&K with the hope that we can prove that what happened on August 5, 2019, was unconstitutional and illegal,” Omar said moments before the hearing started.
“We tried explaining to the CJI and his associate judge, our perspective of what happened on 5th August 2019 and what we are expecting from the SC. The CJI and his associate judge also raised several questions…This is all about the Constitution. About the country’s and J&K’s constitution.,” Omar Abdullah was quoted as having told reporters in Delhi after the day one of the arguments concluded. “Whatever happened on 5th August 2019 was against the constitution of the country and J&K. We hope that the SC sees this from our perspective…We are talking about the Constitution & not its politics…This is a big issue for J&K…”
In Srinagar, Mehbooba briefly met the media persons. “Entire world is watching Supreme Court proceedings in Article 370. Jammu and Kashmir, despite being a Muslim-majority state, rejected the two-nation theory based on religion and joined hands with India. We were granted assurances under the Constitution. These guarantees were not given by China, Pakistan or any neighbouring country,” Mufti told reporters. “The Supreme Court will have to see how the institutions in the country have been subverted and the apex court remains the only institution that can save the Constitution. BJP is not only playing with the Constitution based on its brute majority in Parliament but ignoring everything including the SC rulings. They brought an ordinance after the SC ruling on Delhi which is unconstitutional.”
Reports appearing in the media suggest that 18 counsels will be presenting arguments on behalf of various petitioners. Kapil Sibal and Gopal Subramanium have been given 10 hours each, Shekhar Naphade and Zafar Shah have got eight hours each, Dushyant Dave and Chander Uday Singh were given four hours each, Dinesh Dwivedi, Prashanto Chandra Sen, and Gopal Sankaranarayanan have got three hours and Sanjay Parikh and Rajeev Dhavan may take about two hours each. The remaining three hours of the 60-hour argumentation will be used by Menaka Guruswamy and Nitya Ramakrishnan.