Historic beginning ! ... Supreme Court hearing starts on abrogation of Article 370 ::: President has power to scrap Art : SC

Post-1957, President retains power to scrap Article 370: Supreme Court

A virtual snub to Kapil Sibal 

Senior counsel Kapil Sibal tried to argue that by abrogating Article 370 and carving a full-fledged State into two union territories, Parliament took upon itself the responsibility of the State legislature.

The Supreme Court on Wednesday, Aug 2, raised the question whether the President’s power to declare inoperative Article 370 of the Constitution, which granted special status to Jammu and Kashmir, will not continue to hold the field after the dissolution of the erstwhile State’s Constituent Assembly on January 26, 1957.

Clause (3) of Article 370 gave the President power to notify the Article “inoperative” or modify it. But a proviso had made it “necessary” that such a move would have to be recommended by the Jammu and Kashmir (J&K) Constituent Assembly.

“A Constituent Assembly is not a permanent body like the Parliament and the Supreme Court. No Constituent Assembly can have an indefinite life... The J&K Constituent Assembly was constituted for a specific purpose — to draft the Constitution of J&K. It became functus officio once the J&K Constitution was framed… 

"This proviso making the Constituent Assembly’s ‘recommendation’ necessary before abrogation has no application. If the proviso ceased to operate, surely the substantive part of Clause 3 in Article 370 will remain,” - 

Chief Justice D.Y. Chandrachud heading a Constitution Bench, observed orally on the first day of hearing on abrogation of Article 370.

Senior counsel Kapil Sibal appearing for Mohd Akbar Lone stated, “Are you saying the President has blanket powers?” 

“Can the will of the people of J&K be caged or silenced in this fashion? There has been no representative democracy in J&K in the past five years… In the guise of restoring democracy, we have decimated democracy." 

"The State of J&K historically represented a unique relationship unlike princely states which integrated into the Union. Can that unique relationship between two sovereigns be jettisoned like this?” Sibal asked the court.

"You cannot suddenly jettison the people of J&K when two sovereigns had committed themselves to a process which was grafted into the Constitution under Article 370. Otherwise, what is the difference between J&K and the annexation of Hyderabad or Junagarh. 

Then it becomes an act of paramountcy,” Sibal submitted.

By abrogating Article 370 and carving a full-fledged State into union territories, Sibal said, the “Parliament took upon itself the responsibility of the State legislature”.   

Justice B.R. Gavai asked Mr. Sibal why Article 370 was mentioned in the Constitution only as a “temporary” provision. 

“So, you are saying that though Article 370 was created as a temporary provision, it became permanently engrafted into the Constitution after 1957 with the dissolution of the Constituent Assembly,” Justice S.K. Kaul asked Sibal.

Sibal deplored that the withdrawal of the special status for the state was a move away from representative democracy. 

Never in the history of the country, a state could be converted into a union territory, he said.

Sibal made submission while opposing the Modi government decision o Aug 5, 2019.

"..I stand here on the premise that the integration of Jammu & Kashmir into India is unquestionable, was unquestionable, and always will remain unquestionable. That is a given. Despite that, whole structure was changed."

The Constitution Bench comprises CJI D Y Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice B R Gavai, and Justice Surya Kant.

Sibal tells the bench : --

"This is a historic moment in many ways. First, your lordships will analyse why history was crossed out. Whether procedure established by parliament was consistent with what democracy stands for. Whether the will of people of J&K can be silenced?"  

"It is also historic because it took your lordships 5 years to start hearing this case and for 5 years there has been no representative govt in J&K. " 

Sibal, also a Rajya Sabha member and a former Union Minister says: "It will also be historic because your lordships will have to interpret Article 356 of the Constitution- an Article which seeks to restore democracy and how democracy has been decimated."

"J&K historically represented a very unique relationship unlike princely states- whether that historic relationship can be jettisoned in this manner?"

"In this matter, there will be 4 legislatures- 1. Constitution of India; 2. Constitution of India as applicable in J&K; 3. Constitution of J&K; 4. Article 370. The interaction between these is something your lordships will have to look at." -- says Sibal 

Meanwhile, sources say the Bench will devote all Tuesdays, Wednesdays and Thursdays to this high profile case.  

CJI Chandrachud says: "We are looking at Article 370.. look at clauses 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.

Clause b(ii) 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." 

Sibal also says, : 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 government. Why did they write constituent assembly in Article 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.