New Delhi: On the third day of Article 370 hearing, advocate Kapil Sibal presented compelling arguments challenging the legality of abrogation of Article 370, a provision that granted special autonomy to the erstwhile state of Jammu and Kashmir. The hearing witnessed a robust exchange between Sibal and the Chief Justice of India (CJI) along with other justices.
Sibal questioned the legality and constitutional validity of the government's decision to revoke Article 370. He emphasized that any alteration to the Constitution must follow established democratic processes and institutions, rather than being undertaken as an executive act.
Chief Justice of India (CJI) questioned senior advocate Kapil Sibal about the possibility of the President exercising powers to abrogate Article 370. Sibal appeared perplexed by the query but a few minutes later, he mentioned such an action would require the recommendation of a constituent assembly.
Sibal stressed that the modality cannot convert a legislative assembly into a Constituent Assembly.
The discussion again delved into the “temporary”nature of Article 370; judges kept asking Sibal to answer why cannot president exercise his powers to amend 370, leading to discussions about constitutional amendments and the powers of the President and Parliament.
Sibal further asserted that the Govt misused Article 367 and changed the definitions of Constituent Assembly with Legislative Assembly.
Here is the detailed Hearing:
Senior Advocate Kapil Sibal: Please see page 70 of the supplementary submissions
Sibal refers to Sheikh Abdullah's speech outlining the purpose of the Constituent Assembly of J&K. The speech was made on November 5, 1951.
Sibal reading Abdullah's speech: "While accepting that accession, the GOI 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."
Sibal: This is how the question of plebiscite came.
Sibal: He then points out how the provision is temporary.
CJI: He says that Pakistan is a feudal state and our interest would not be protected in a feudal Pakistan as compared to an India where land reforms were taking place.
CJI: He specifically speaks about the importance of the affiliation with India and accession with India. First he speaks about Indian Constitution. Then he refers to land reforms which took place.
CJI: See how Sheikh Abdullah puts it. This claim of being a Muslim state by Pakistan is only a camouflage to hide the fact that in essence it is a feudal state.
Sibal: Can you delete provisions of the Constitution by an executive act? Can you decimate the Constitution of India by an executive act? You cannot change constitution as applicable to J&K by changing Article 3. You cannot change legislative assembly to a constituent assembly by an executive act.
Sibal: You cannot change legislative assembly to a constituent assembly by an executive act.
Sibal reads Mir Kasim's statement of Nov 10, 1952.
Sibal: This is exactly what I've been submitting. A unilateral executive decision cannot change the terms of a relationship which is constitutionally embedded in Art 370.
Sibal: An executive act of the Union of India cannot alter unilaterally provisions of the Constitution of India as applicable to the State of J&K. including getting rid of the special status given acceded to by the GOI and the parliament in enacting 370 of the Constitution.
Justice Kaul: You say this is an executive act?
Sibal: 356 is executive. 367 definition is executive. Parliament came to the picture when changes had already been done through executive acts. We're challenging that
Sibal: Parliament accorded approval to executive acts which unilaterally changed the constitution as it was applicable to J&K. Could the UOI have done it?
SC: Is it your case that the parliament could have done it?
Sibal: No! Not at all. That also I'll answer. Ultimately, this was a political decision taken in the context of the situation prevailing. Right? And the complete abrogation must also be a political decision.
Justice BR Gavai: Are you saying parliament can do it?
Sibal: When you want to severe a relationship which has been entered into, you must seek the opinion of the people. See what happened in Brexit. A referendum was held.
CJI: 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.
CJI: The temporary nature of the Article 370 remained because the view of the constituent assembly was not yet taken on board. But can this article after the constituent assembly become unamendable?
CJI: You say power is lost when the J&K constituent assembly came to an end?
Justice Khanna: Article 368 gives the power to amend the constitution. We have to see if Article 370(3) gives the right to amend it.
CJI: If we accept that Article 368 is used for amending all articles then Article 370 will also be covered. Then the argument that there is no power to amend can (only) be a moral argument but not a legal one.
Sibal: This is a political act and not a constitutional act. You wanted to do something and you have done it. I do not think this has happened in any constitutional democracy. Boris Johnson had asked the Queen to prorogue the house. It was done. The UK Supreme court unanimously held that you cannot use executive power to bypass the parliament. You give powers to Governor which he does not have. You invoke all powers under article 356. What kind of exercise of law is that? Then what powers does the president have to pass such an order?
CJI: If they had to abrogate Article 370, why was amendment to Article 367 required at all?
Sibal: That is because they changed definitions of Constituent Assembly to legislative assembly.
CJI: Suppose we are working under Article 356 and proclamation is there. The president assumes to herself all powers of the State and the powers of legislative assembly is entrusted to the parliament. Then if Article 370(3) is capable of being interpreted that President can abrogate.. Then parliament can take a call.. why amend 367 at all?
Sibal: Executive is only administration and they cannot amend the Constitution.
CJI: The government exercised the power under Article 370(1)(d) and not under Article 356.. to amend the Constitution.
Sibal: It requires the concurrence of Jammu and Kashmir government. This government is the council of ministers.
CJI: But clause d shows that article 370 itself postulates abrogation. Is it not?
Senior Advocate Sibal: Then I have nothing to say. I must have gone wrong in my readings or arguments. Interpretation clause cannot be amended. It is an interpretation clause milord.
Sibal: Please see the language of the provisions of Article 370 and it must be seen in the historical context and there cannot be ambiguity read into it when there is none. Second if there is textual ambiguity the court should not be adrift in the sea of pragmatism.
The power under Article 3 does not extend in effacing the character of a state into the union territory. Can a state be made into a union territory by the union on its own whims and fancy without consulting the people who would be affected. Let me come to Article 356. We will come to the SR Bommai judgment.
Sibal: People are not taken into account. The views are not taken into account. Parliament becomes spokesperson for the people of Jammu and Kashmir ? The Constitution requires you to take the views of the state. Everything done under Article 356 is against federal and Constitutional democracy and constitutional morality. Where are the steps to restore democracy.. only steps to destroy it.
Sibal: On November 21, 2018, the Governor had no power to dissolve the assembly. He knew the council of ministers would not allow and thus he did it on his own. He is not an omnipotent authority but has delegated power.
CJI: If you see the Krishna Kumar Singh judgment of seven judges we have held you cannot bring irreversible changes though the mode of an ordinance.
Sibal: Yes we have relied on it. Constitution makers attached great importance to the decisions taken by the Constituent assembly. Please see how a Constitution bench of this court had interpreted Article 370.
Sibal: As long as the President issues order after consultation and concurrence till then it is fine but not beyond that.
Sibal: I will read the Jammu and Kashmir Reorganisation Act a little and then others can take it ahead.
Sibal reads the J&K Reorganisation Act.
Sibal: Let us read the word state as Union territory. If you use UT in place of State, the legislation makes no sense.
CJI: Means separation of territory from any state?
Sibal: Yes my argument. How can you create a UT under this. You can carve a UT but it does not allow extinguishment of a state. If you can do it to one you can do it to others and make it presidential form of govt everywhere.
CJI: Textually you cannot do it?
Sibal: No, you cannot do it.. you have created two UTs from a State. Where is that power. There are multiple categories of what they have done which does not fall under any category.. how is that possible?
Sibal: 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? Though constitution is a political document.. but you cannot maneuver or manipulate its provisions for political end. It is time for this court to intervene. 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.
Kapil Sibal concludes his arguments.
Senior Advocate Gopal Subramanium commences.
Subramanium: I will start with the Decision of the constituent assembly of Jammu and Kashmir itself.
CJI: Okay you start tomorrow morning Mr. Subramanium.
(Inputs By Live Law, Bar & Bench)