Article 370 | Petitioners Never Challenged India's Sovereignty; Can't Adopt Emotive, Majoritarian Interpretation Of Constitution : Sibal To Supreme Court [Day 15]

The arguments of the Union government and the other respondents in the Article 370 matter came to an end yesterday, on the fifteenth day of the Article 370 hearings before a Constitution Bench comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. This also marked the commencement of the rejoinder arguments by the petitioner.  

Must View Jammu And Kashmir Accession In Historical Context

At the outset, Senior Advocate Kapil Sibal contended that most of the arguments raised by the respondents were "unsolicited" and "without reference" to the arguments made by the petitioners. He clarified that no-one from the petitioners' side challenged the sovereignty of India. Continuing his course of submissions, he said–

"I was somewhat pained when one counsel argued that we respect the sentiments of people of Jammu and Kashmir but you must also respect our sentiments. We cannot reduce this case to an emotive, majoritarian interpretation of constitution of India. All residents in Jammu and Kashmir 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. To say that you must respect our sentiments as if they're somebody else itself is creating a kind of chasm it shouldn't be creating."

Sibal then took the bench through the history of accession of Jammu and Kashmir with India to interpret Article 370 in its historical context. He stated that Jammu and Kashmir, unlike other princely states, 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 said decision had to be taken by ruler. Thus, in the historical context, one must note that what happened in Jammu and Kashmir was only to ensure that Jammu and Kashmir became an integral part of India.

Can Article 370 be placed above basic structure?

The senior advocate then asserted that the argument made by the respondents that the Parliament had plenary powers under the Constitution in its application to Jammu and Kashmir was incorrect as the power of Parliament to make laws with respect to Jammu and Kashmir was limited by Article 370. Thus, there was no such plenary power with the Parliament and it was for the council of ministers to decide what laws would apply to Jammu and Kashmir and not the Parliament. He stated that the same was to ensure that there was slow integration of Jammu and Kashmir to India through a process that was easy and allowed the two executives to communicate with each other. Sibal asserted that as per Article 370(3), the first step was for there to be a recommendation from the constituent assembly and it was after that the President could pass any order. "You can't reverse the order," he added.

At this juncture, the CJI remarked that the Indian Constitution did not clarify what was to be done after the Jammu and Kashmir Constitution came into force and there was no express provision in that regard. Thus, he stated that in the context of there being no express provision for the process to be followed post the integration was over, there were certain 'silences' left in Article 370. To this, Sibal remarked–

"The Constitution has to be interpreted...we don't have to look at what the silences in the constitution are."

CJI then said–

"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. But that's not there in the proviso."

Sibal responded that so far, the proviso had never been interpreted in the fashion that the Union was seeking to interpret. Justice Khanna was quick to retort by noting that such an occasion never arose before. CJI remarked–

"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...So there is in our constitution a provision which lies above the basic structure?"

CJI pointed out that according to Article 368 as applicable to Jammu and Kashmir, the amending power of the Parliament cannot be applied with respect to Article 370. This was because the Constitution (Application to Jammu and Kashmir) Order of 1954 inserted a proviso to Article 368 stating "Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370". As a result, Article 370 was beyond the amending power of the Parliament. So, if 370(3) cannot be used to abrogate the Article without the recommendation of the J&K Constituent Assembly, which ceased to exist after 1957, it would mean that 370 cannot be touched at all. 

Elaborating further, the CJI added–

"So you are saying power to amend the Article lies in the Article itself and so we are dealing with a provision which perhaps lies even higher than the basic structure doctrine."

Sibal responded in the negative and asserted that this was not the petitioners argument at all. He stated that the petitioners were not there to provide a solution and the entire act was a political act and a political process which must also have a political solution. CJI, seemingly disapproving the argument, said–

"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. But all solutions have to be within the framework of the constitution."

To this, Sibal reiterated that it was neither the court's duty nor the petitioners to find an appropriate solution for the Union. He stated that the Court was not sitting in an advisory jurisdiction as to how to abrogate Article 370. The present proceedings are only to decide the validity of the actions already taken by the Union and not to advise the Union.

Incorrect Usage Of Article 356

The next limb of arguments of Senior Advocate Sibal focused on how the exercise of Article 356 was illegal. He stated that the Union had first substituted the constituent assembly with the legislative assembly and had then have imposed the President's Rule under Article 356 by which it made the parliament the legislative assembly to give consent to itself. Disapproving the same, he said–

"The process under Article 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."

Sibal then contended that the correct procedure would have been the following–

"He (Governor) 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. You never dissolve the assembly immediately because then you have to hold elections. Democratic process can't be stultified."

Also from the hearing - Supreme Court Asks Article 370 Case Petitioner To File Affidavit Accepting India's Sovereignty & Affirming Allegiance To Indian Constitution[Day 15]

Article 370 | Argument That Resurrection Of Article 370 Would Violate Basic Structure Too 'Far Fetched': Supreme Court [Day 15]

Article 370 | Argument That Resurrection Of Article 370 Would Violate Basic Structure Too 'Far Fetched': Supreme Court [Day 15]