We cannot reduce this case to an emotive, majoritarian interpretation of the Constitution of India. All residents in Jammu and Kashmir are citizens of India, the petitioners' advocate argued.
NEW DELHI — The Union government and other respondents in the Article 370 case completed their arguments before a Constitution Bench of the Supreme Court here on Monday, the 15th day of the hearing.
With this, the petitioner has commenced the rejoinder arguments before the bench comprising Chief Justice D.Y. Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant.
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, LiveLaw.in reported on Tuesday.
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 the 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 the basis of which accession had to take place were 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.
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 after the integration was over, there were certain ‘silences’ left in Article 370.
Sibal contended that “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 had never arisen before.
Intervening in the issue, the CJI said: “The sequitur of your submission on the 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?”
He 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.
The next limb of Sibal arguments 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 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.”
The correct procedure, Sibal contended, would have been that “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. The democratic process can’t be stultified.”