Breaking the silence after 4 years, a 5- Judge Bench of the Supreme Court has finally commenced its day-to-day hearings on Article 370 petitions. The arguments between Kapil Sibal and CJI Chandrachud make it feel like a complete courtroom drama.
This batch of petitions challenged the abrogation of Article 370 and the division of the State of Jammu and Kashmir into two Union territories through an Act of Parliament.
Let’s delve into the complete details of the case, including the day- to day hearings. So, stay tuned!
Case Title: In Re: Article 370 of the Constitution
Representing Advocates:
-
Senior Advocate Kapil Sibal & Senior Advocate Dushyant Dave, Adv. Gopal Subramaniam appearing for Petitioners- Former speaker of the J&K legislative assembly Mohd. Akbar Lone
-
Attorney General of India R. Venkataraman & Solicitor General of India Tushar Mehta, appearing for the Union Government
SC Bench: Chief Justice of India (CJI) D.Y. Chandrachud, Justices S.K. Kaul, Sanjeev Khanna, B.R. Gavai and Surya Kant
Case Renamed
The case has been renamed " In Re: Article 370 of the Constitution” (suggested by Senior Advocate Gopal Sankaranarayanan) to avoid giving primacy to any of the petitioners, as 20 petitions were filed. The Bench agreed to delete the names of two petitioners, Shah Faesal and Shehla Rashid, as they withdrew their petitions.
Day 12
Highlights of Day 12 hearing-
On Day 12 of the hearing , Solicitor General Tushar Mehta concluded his arguments in favor of Article 370 abrogation.
-
He addresses concerns of a constitutional promise and presents the President's power to modify Article 367.
-
He clarifies the role of the Constituent Assembly and highlights the subordinate nature of J&K's Constitution.
-
Major highlight of the day was Mehta’s contention of Article 370's temporary nature and justification regarding its abrogation.
-
Chief Justice D.Y. Chandrachud questions the use of Article 367 in altering the meaning of "constituent assembly" to "legislative assembly," comparing it to past cases.
-
Recommendation is not just an opinion, it is a positive decision: CJI Chandrachud
Day 11
Highlights of Day 11 hearing-
-
Justice B. R. Gavai questioned the close timing between Bhat's court appearance and his suspension.
-
Solicitor General Tushar Mehta argued that the Preamble of the Indian Constitution was made applicable to J&K without the terms 'socialist' and 'secular'.
-
He claims the reorganization of J&K into Union territories was constitutional and not a downgrade. Mehta highlights discrepancies in rights awarded under Article 370 and contends that the move rectified the government's previous mistakes.
-
The court assured that the Union Government wouldn't interfere with special provisions applicable to other parts of India or North Eastern states.
Day 10
Highlights of Day 10 hearing-
- The Supreme Court continued its hearing on the abrogation of Article 370 on Day 10 where Attorney General R. Venkataramani addressed the suspension of a lecturer who had pleaded against the Article 370 abrogation.
- Solicitor General Tushar Mehta presented arguments, highlighting the application of the Preamble to Jammu and Kashmir.
- Chief Justice D.Y. Chandrachud questioned the justification of means used to abrogate Article 370 which is the major highlight of the day.
- The government assured that other special provisions across India wouldn't be interfered with and the court discussed the stripping of Jammu and Kashmir's special status and its division into Union Territories.
- Questions arose about the maximum three-year tenure of President's Rule in Jammu and Kashmir.
- The Solicitor General referred to Home Minister Amit Shah's statement on full statehood for J&K and Ladakh to remain Union Territory
Day 9
Highlights of Day 9 hearing-
-
Integration is not solely about central control of power but about the unity of the people. Once Kashmir acceded, its people became Indians- Senior Advocate Nitya Ramakrishnan:
-
Sr. Advocate Guruswamy addressed the question of whether a statement by an assembly member can represent the will of the people.
-
SG Tushar Mehta clarified that special provisions for North East are different from temporary provisions like Article 370.
-
Advocate Warisha Farasat said Article 368 does not allow the repeal of the Constitution.
-
CJI DY Chandrachud: Article 370 was a convenient expedient to make J&K a complete and integral part of India.
With this, the 18 counsels on the petitioner's side concluded their arguments against the abrogation after 9 days and over 40 hours of hearings.
Senior Advocate Harish Salve's Arguments for the Central Government to Commence on Day 10.
Day 8
Highlights of Day 8 Hearing-
-
The Constitution Bench continued its hearing on 22nd August 2023 and discussed challenges to the abrogation of Article 370 of the Constitution.
-
The Bench questioned the issuance of constitutional orders allowing Indian Constitution provisions in Jammu and Kashmir post-1957.
-
Senior Advocate Dushyant Dave argued Article 370 had achieved its purpose and survived for potential future use.
-
Senior Advocate Shekhar Naphade discussed the recognition of the Jammu and Kashmir Constitution by the Indian Constitution and concerns about the Reorganization Act.
-
Senior Advocate C.U. Singh began arguments on the implications of converting a state into a Union Territory.
-
Chief Justice Chandrachud requested petitioners to conclude arguments, preparing to address other aspects of the case.
Day 7
Highlights of Day 7 Hearing
-
On Day 7 of the hearing, Dave referred to the "In Re: Berubari Union" landmark judgment and linked it to Article 370, suggesting that Article 370 reflects similar principles.
-
He mentioned being extensively briefed by Mr. Prashant Bhushan, who is assisting him in the case.
-
Dave argued that Article 370 was a result of honoring the conditions set by the Maharaja of Jammu and Kashmir and should not be breached.
-
He contended that Article 370(1) survives for potential future use, particularly for applying new constitutional amendments to Jammu and Kashmir.
-
Chief Justice Chandrachud questioned Dave's assertion that Article 370 has served its purpose, pointing to the continued applicability of constitutional orders after 1957.
-
He argued that Article 370 cannot be repealed using its own provisions, and the deletion of certain parts of it has no impact on the statute.
-
Senior Advocate Dinesh Dwivedi is set to continue arguments for intervenors on Tuesday, August 22.
-
CJI Chandrachud in his concluding remarks said that the bench would review written submissions over the weekend and will wrap the petitioner's attachment argument on Tuesday, indicating an end to the petitioner's side of arguments.
Day 6
Highlights of Day 6 Hearing
-
Day 6 of the hearing commenced with the debate surrounding the signing of the instrument of accession in 1947.
-
Dushyant Dave contended that Article 370 is temporary not due to the passage of time, but because it has served its purpose and cannot be amended further.
-
He argued that Article 370 has fulfilled its objective and should not be considered a permanent provision.
-
The Chief Justice highlighted that the surrender of Jammu and Kashmir's sovereignty to India was "absolutely complete" upon its accession in 1947.
-
CJI expressed scepticism about the claim that Article 370 was permanently in nature, given the comprehensive integration of Jammu and Kashmir into India.
-
The Chief Justice questioned the extent of the President's powers under Article 356 (President's Rule) of the Constitution and discussed the potential for misuse of these powers.
-
Dhavan addressed the limitations on powers under Article 356, particularly with regards to invoking Article 3 (Formation of new States and alteration of boundaries) during President's Rule. He contended that these limitations must be adhered to.
Day 5
Highlights of Day 5 Hearing
-
The Supreme Court, during the fifth day of hearing on petitions challenging the nullification of Article 370, highlighted that the integration of Jammu and Kashmir (J&K) with India was "absolute and complete."
-
The Bench clarified that once Article 1 of the Constitution establishes India as a "Union of States," including J&K, the transfer of sovereignty to India was unequivocal. The Bench rejected any notion that the post-Article 370 Constitution retained J&K's sovereignty.
-
The distribution of legislative powers, the Bench stated, does not impact India's sovereignty. The restriction on Parliament's authority to legislate on State List subjects is common to all states, including J&K.
-
Dhavan emphasized that reducing a State to a Union Territory is an unprecedented event in India's history.
-
The CJI questioned the existence of conditional surrender of sovereignty and highlighted that sovereignty was fully vested in India.
-
The proceedings on August 10, 2023, delved into the constitutional autonomy of Jammu and Kashmir, the implications of Article 370, and the historic promises made to its people.
-
Hence, the arguments revolved around whether the abrogation of Article 370 was justified within the constitutional context and the impact of this decision on the state's sovereignty and autonomy. The discussions raised important questions about the balance between state autonomy and the Union's authority.
Day 4
Highlights of Day 4 Hearing
-
On the 4th day of hearing, Senior Advocate Gopal Subramanium informed the Constitution Bench, headed by Chief Justice D.Y. Chandrachud, that the Jammu and Kashmir Constituent Assembly intended for Article 370 not to be abrogated.
-
He emphasized their vision of applying the Indian Constitution to J&K with modifications and exceptions. Section 147 of J&K Constitution: Reference was made to Section 147 of the J&K Constitution, which prohibits amendments to provisions of the Indian Constitution as applicable to J&K. This highlighted the constitutional safeguards set by the J&K Constituent Assembly.
-
Chief Justice Chandrachud inquired about the potential use of interpretative provision Article 367 to amend Article 370(3) through the Presidential Order [CO 272]. Subramanium responded that powers under Article 356 cannot bestow legal authority under Article 370.
-
As discussed earlier in this blog, Kapil Sibal argued against unilateral executive decisions altering a constitutionally embedded relationship in Article 370. Chief Justice Chandrachud pointed out India's reliance on established institutions, like Parliament, for public opinion, as opposed to referendums like Brexit.
-
Senior Advocate Gopal Subramanium's arguments on Day 4 focused on the intricate relationship between the Constitutions of Jammu and Kashmir and India, particularly through Article 370.
Day 3
Highlights of Day 3 Hearing-
-
On the third day of the ongoing Supreme Court hearing on the challenge to the abrogation of Article 370. The five-judge Constitution Bench, led by Chief Justice D.Y. Chandrachud, delved into the heart of the matter with Senior Advocate Kapil Sibal presenting a series of compelling arguments.
-
Unilateral Executive Decision vs. Constitutional Relationship
Senior Advocate Kapil Sibal contended that a unilateral executive decision cannot alter the terms of a relationship constitutionally rooted in Article 370.
-
He emphasized that the abrogation was a political decision and that the opinion of the people of Jammu and Kashmir should have been sought. Sibal drew parallels to the Brexit referendum and stressed the importance of seeking public opinions through established institutions like Parliament.
-
The CJI, however, disagreed and responded by stating, "In a constitutional democracy, seeking the people's opinion 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."
-
Sibal pointed out that the abrogation was a political act rather than a constitutional one. He questioned the validity of converting a legislative assembly into a Constituent Assembly through an executive act, arguing that provisions of the Constitution cannot be altered in such a manner.
-
He highlighted the necessity of interpreting the proceedings of the Constituent Assembly to determine whether Article 370 was intended to be a temporary measure.
-
The Bench discussed whether Article 370 could be converted into a permanent provision solely through proceedings of the J&K Assembly or whether a parliamentary intervention was necessary.
-
The debate centred on whether the power to amend Article 370 was retained even after the dissolution of the J&K Constituent Assembly. The Bench also questioned the validity of altering the Constitution through an executive order and the significance of distinguishing between political and constitutional decisions.
Day 2
Highlights of Day 2 Hearing-
-
The Supreme Court & the lead petitioner’s Counsel, Kapil Sibal, continued to debate whether Article 370 of the Indian Constitution had attained a permanent status. In addition to what was discussed on Day 1 of the hearings, it is yet to be found out whether the Constitution of J&K gave permanency to Article 370 of the Indian Constitution.
-
While senior advocate Kapil Sibal contended that Article 370 could never be abrogated, the Bench questioned whether Article 370 could be considered a “basic structure of the Indian Constitution”.
-
The CJI specifically stated, “a new category over and above the basic structure”, to which Sibal refused to deal with such a question or statement, mentioning to the Bench that his only submission in this regard is a procedure which has been laid down within Article 370, and it does not comprise any mechanism for its abrogation.
-
Kapil Sibal reminded the court of all the events in J & K before the autonomy of J&K under Article 370 was abrogated on August 5, 2019.
-
Sibal deliberated on how the Bharatiya Janata Party withdrew from the governing alliance with the Peoples Democratic Party (PDP) & how the governor said he had not received any fax where National Conference and PDP had expressed their desire to form a new government (to form a majority in the assembly) but “dissolved the assembly in a hurry,” i.e., No majority was proven.
-
Stating such events, Sibal claimed that the August 5 Presidential Order was a “political” and not a “constitutional” act.
-
Later, Justice Kaul reinstated that all constitutional acts also have a political dimension.
Day 1
The hearings are a unique legal showdown. Let’s check these out.
Highlights of Day 1 Hearing-
-
The Apex Court commenced hearing a batch of petitions challenging the abrogation of Article 370 of the Indian Constitution. And Senior advocate Kapil Sibal, representing one of the petitioners, termed the hearing “historic”.
-
In a courtroom clash, the Supreme Court and petitioner's counsel took opposing stances on the applicability of Article 370(3) post. That is, whether clause(3) of Article 370 of India remains applicable after the Constituent Assembly of J&K ceased to exist in 1957.
-
Since the Supreme Court and the petitioner could not agree on whether Article 370 has assumed a permanent character, the court will have to determine whether the Instrument of Accession and its conditions remains enforceable irrespective of the legislative powers exercised by the Indian government.
Hearings will keep on updating!
Conclusion
The abrogation of Article 370 marked a significant turning point in the history of Jammu, Kashmir, and India. If Article 370 is also made immune to the constitutional amendment, it can be done by marking it as a “basic structure” or by creating a new category. So, it will be interesting to watch how the court interprets the documents and Article 370 itself. 🤞🏻