The Supreme Court today started hearing the batch of petitions challenging abrogation of Jammu Kashmir’s special status–Article 370.
Read this thread by Bar and Bench: Sr Adv Kapil Sibal begins: This is a historical moment in many ways. This court will be analysing why history was tossed out on August 6, 2019 and whether procedure adopted by parliament was consistent with what democracy stands for.. whether will of J&K people can be silenced.. it is historic because it has taken 5 years for this court to hear this case and for 5 years there has been no representative government there.. this article which sought to restore democracy… it has been decimated and can that be done.
Sr Adv Sibal appearing for Akbar Lone: whether governor of a state would have on June 28, 2018 decide to keep the assembly under suspension without even trying to find out a govt could be formed.. whether in 2018 dissolution of assembly could have taken place on June 21, 2018 before using Article 356… These issues were never raised or decided and that is why this is a historic hearing.
CJI: Like the Maharashtra case… the live transcript will be there for this case… it will be available by the end of the day.
Sr Adv Sibal : We wish to make a statement. We stand here on the premise that integration of Jammu and Kashmir with India was and will always remain UNQUESTIONABLE.
Sr Adv Sibal : There were orders passed every now and then applying the Constitution of India to Jammu and Kashmir. All laws were applicable apart from Article 370. There was no reason to take away this right.
(Sr Adv Sibal begins reading the list of dates commencing from March 9, 1846.)
Did the subjects correspond to some of the specific entries in the Govt of India Act? : CJI
Sibal: it was applicable to the ones residing in the state, who came from Pakistan..
CJI: subjects whom instrument of accession covers must cover subjects in the govt of India act.. like defence etc?
Sibal: I will find out which part of Govt of India Act covers it.
(Sr Adv Sibal reads The Maharaja’s Proclamation on 5 March 1948
Appointing a Popular Interim Government.)
(Sr Adv Kapil Sibal continues reading the list of dates: Now when the Constitution of India was adopted. Please read this it is of significance.. it was in Republic Day.)
Justice Sanjiv Khanna: This was by an administrative order.. also the schedule to the Instrument of Accession was far more restrictive
Sr Adv Sibal: yes under Article 370.
Sibal: govt of the day accepted the fact that our relation with J&K Govt was on a separate footing and that residuary power will rest in the state and repugnancy does not arise and that is how Article 370 came into being and it continued.
CJI: What happened to currency.. it is governed by entry 36 of list 1
Sibal: currency was Indian.. in 1954 there was another adaptation order
CJI: Were the subjects broadened by subsequent adaptation orders
Sibal: yes milord.. state said that they are integrated into India and constitution of J&K says they are integral part of India.
Sibal: suddenly in parliament it was said that it was being done at 11’o clock and decided to do it one fine morning without consultation and tossed it out.
Sibal: no one disputed that J&K is a part of India..there was this understanding between govt of india and the state that there will be a constituent assembly who will decide what happens to article 370 and that is why it is called a temporary provision… it was temporary because..
Sibal: before Article 370 could be effaced.. the concurrence of constituent assembly was needed
CJI: but after the end of 7 years.. when constituent assembly lapses then what happens
Sibal: from 1950 to 1957 only the constituent assembly could decide
CJI: No constituent assembly can have an indefinite life.. so what happens to the proviso..
Sibal: yes it cannot exist after constitution comes into force
CJI: notwithstanding the fact that proviso ceases to operate by virtue of the fact that constituent assembly lapsed.. the part 3 continues to operate..is it not?
Sibal: if Article 370 has to be abrogated you had to get concurrence of the constituent assembly… it has served term till constitution was there
CJI: So you say that the article which is transitionary becomes permanent after 1957.
Justice SK Kaul: you are saying Article 370 could not be abrogated after 1957..
Justice Sanjiv Khanna: one is interpretation is clause 3 of article 370.. you are saying proviso cannot be resorted to after 1957 and thus clause 3 is redundant.
Sibal: see the constituent assembly debates it will become clearer.
CJI: So clause 3 becomes a constitutional article after 7 years… how can this be? clause 3 continues to operative… clause 3 contains a non obstante clause which overrides clause 1 as well.. article 370 (3) has the non obstante clause
Sibal: a structure was envisaged by the constitution in 1950 but why was constituent assembly mentioned when it was not in place.. they could have said Jammu and Kashmir govt… why did they write constituent assembly in 370(3)
CJI: Acceptance of sovereignty of dominion of india was complete… it was not for limited purpose and acceptance was complete and some rights were reserved over some legislative subjects.. so acceptance of sovereignty was complete.
Sibal: you have to see the case with a historical perspective..
CJI: so once the period stipulated in clause 3 came to an end.. the power under clause 3 itself came to an end.. that is the argument..
Sibal: constituent assembly has worked itself out and that is why it is a temporary provision
Justice Khanna: if one looks at article 370(1)(b)..and then in clause 2.. it deals with the situation when govt or elected assembly is not in existence so proviso to clause 3 will only be applicable till elected assembly is in place.. that appears to be the broad outline of this.
Justice Surya Kant: If clause 3 goes then article 370 could never be abrogated…
Justice SK Kaul: temporary nature of article 370 is correlated to the term of the constituent assembly and it becomes permanent after the constituent assembly ceases to exist.
Sibal: that is why I said formation of constituent assembly is a political exercise.. it is not a law making exercise.. 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.. you cannot jettison the people of jammu and kashmir 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.
Sibal: aspirations and desire of people whatever it may be has to be respected
Justice Kaul: if an elected assembly wants to abrogate article 370 then also it is not possible?
CJI: but that is only on the basis that 370 becomes permanent after constituent assembly ceases to exist..but if the hypothesis is not accepted then only way is to assert that a pre independence agreement has to be enforced. now can parliament of the state to which it has agreed to merge into have limited powers in the state..
Sibal: it was unconditional milord.. this power was used under article 356 and how can this article be used..
Justice Kaul: if an elected assembly wants to do it which represents the will of people even they cannot.. that is what you are saying..
Justice Khanna: To say that proviso to clause 3 of Article 370 will cease to operate after the constituent assembly ceases to exist..
CJI: we are looking at Article 370.. look at clause B, C and D.. Clause B refers to power of parliament to make laws for the state… those matters governed under union and concurrent list and referred to instrument of accession those have to be specified by the president in consultation with the states. Bii refers to such other matters in said list where state concurrence is needed.. now in clause C.. it 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.. clause D refers to other provisions,.look at proviso to clause D…
CJI: The whole area of concurrence and consultation is confined to matters in union and concurrent list.. presidential power is untrammelled to define which subjects are applicable to the Jammu and Kashmir..
Sibal: President only orders.
CJI: Clause D refers to order by president making subjects applicable to the state of jammu and kashmir.