Srinagar/New Delhi: As the interveners concluded their arguments, Adv Sibal commenced rejoinder arguments, countering key points made by the counsel supporting the abrogation of Article 370 during the 15-day long hearing.
Sibal expressed concern over counsel’s arguments on emotions suggested by the counsel a day ago and stressed that the case should not be approached from an emotive, majoritarian interpretation of the Indian Constitution.
He challenged the notion of plenary powers of the Indian Parliament, emphasizing that Article 370 limited Parliament's ability to make laws in the region.
Sibal explained how J&K was unique and the special status was granted for both domestic and international reasons. He provided historical insights into the accession of princely states like Junagadh, Hyderabad, and Kashmir, illustrating the distinct circumstances surrounding each case.
He also asserted that the dissolution of J&K assembly was incorrect, the governor should have restored the legislative assembly, and the government of India could have exercised power under Article 356.
“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 constitution of India, Sibal told the bench.
"You must respect our sentiments" creates a divisive chasm that should be avoided.
“All residents in J&K are citizens of India. If historically there is an article which gives them certain rights, they're entitled to defend that as a matter of law.”
He quoted the historical context of accession, mentioning that Jammu and Kashmir had no geographical links with India, and the basis for its accession was contiguity and population, to be decided by the ruler.
Sibal: We are concerned with interpretation of 370...if you look at history of India, J&K had no links with India geographically and the two principles on basis of which accession had to take place was contiguity and population. And the decision had to be taken by ruler.
Sibal: Jammu and Kashmir had a constitution of 1939 which had an administrative structure like any other democratic structure except that the Prajasabha was dominated by dogras. All nominees in Prajasabha were dogras.
Sibal: Sheikh Abdullah was dead against the ruler and was imprisoned. There was a popular movement in Kashmir against Hari Singh.
Sibal: Pandit Nehru also had a distaste against rulers. That's why when invaders came, he first said release Sheik Abdullah...
Sibal: Constitution of J&K, like no other princely state in India was drafted after 1950.
Sibal: The Indian Independence Act was passed on July 18 1947. Originally, Independence was to be granted on May 1948 but the date was preponed to August 15 1947. So after the independence act, you had 12+17 days to complete process of signing all IoAs
Sibal: Sardar Patel said that we'll only have with us communication, defence, external affairs. You're autonomous for the rest. That was the understanding.
Sibal: The whole process of 17 days was an entirely an asymmetric process. The idea was to get them to sign the IoA.
Sibal: Some had to merge into larger administrative units- so many princes did not have to merge because they were merged in larger units.
Sibal: Ultimately, who stood out? Hyderabad, Junagadh, Travancore, and Kashmir.
Sibal said that Jammu and Kashmir's special status was granted for domestic and international reasons, making it unique compared to other princely states, countering counsel’s claim that J&K wasn’t unique.
Sibal: J&K was 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.
Sibal: Now Junagadh acceded to Pakistan. Somnath temple was in Junagadh, very dear to all of us. So, India wanted to invade, take over Junagadh. Mountbatten said you can't do that. This is foreign territory for you. So infiltrators was sent. They took over.
Sibal: There was no resistance. Then negotiations took place and Pakistan agreed to a plebiscite, knowing full well that such a referendum would happen in Kashmir also.
Sibal: The same thing Hyderabad. The ruler was Muslim, people wanted to join India. But he didn't want to join Pakistan. He wanted to be independent.
Sibal: The invasion took place and we got Hyderabad. Ultimately, we were left with Kashmir
Sibal: In this historical context, we must view that what happened in J&K was only to ensure that J&K becomes an integral part of India.
Sibal: Let me show some myths portrayed here. 1. Parliament has plenary powers under constitution. It's actually the contrary. The power of parliament to make laws is limited by 370.
Sibal: It is a limitation on parliament to make laws. It stares you in the face and you're talking about plenary power. Where's the plenary power?
Sibal: 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: Can anyone even think about this? That constituent assembly, drafting the constitution of J&K, saying that they're an integral part of India- will say that the day we're not in place, abrogate it because there's a plenary power superior in 370, which is not even there in 370.
Sibal: Your lordships aren't here to tell them what the way out of this is. The way out is a political process, or some other process. That's for them to see.
Sibal: First the recommendation will come, then you'll pass the order. You can't reverse the order.
CJI: Except for the provision for permanent residents - section 6, which finds its mirror image in Art 35A, every other provision was a mirror image of the Indian Constitution.
CJI: What is that an indicator of? Whatever is happening there is really the incorporation of what is happening in the union of India.
Sibal: I can only say that either we interpret 370(3) in its text and context or find something that is not there.
CJI: 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.
CJI: But that's not there in the proviso.
Sibal: It is
Sibal: So far, the proviso has never been interpreted in the fashion that they're seeking to interpret
Justice Khanna: That occassion never arose.
CJI: The sequitur of your submission on proviso to clause (3) 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: A political process must have a political solution.
CJI: So according to you, there is no solution to Kashmir within the constitution. Ultimately that's the argument - that the solution has to be political.
Sibal: They have substituted constituent assembly to legislative assembly. Then they have imposed 356 and parliament has become legislative assembly and given consent to itself.
Sibal: The process under 356 is that you keep the assembly in a suspended animation, if you find that there is no possibility, after imposing 356, you dissolve and hold elections.
CJI: According to you the dissolution of the assembly on 25th Nov is wrong because there was no aid and advice
Sibal: Apart from that, where was the occassion for 356 at all because he was running the administration? There cannot be a constitutional failure.
CJI: Suppose the dissolution is incorrect, the consequence would be that at the end of 6 months, legislative assembly had to be restored? Council of ministers has to be formed
CJI: So taking your argument to its logical conclusion that the dissolution was wrong and governor had to restore the legislative assembly, in which case, can the GOI not have exercised power under 356?
Sibal: Correct, so then he would have had to make a recommendation that they're not functioning in accordance with provisions of the constitution - because the governor was ruling for 6 months.
Sibal: You never dissolve the assembly immediately because then you have to hold elections. The democratic process can't be stultified.