370 IN THE SC: Recap of this important legal case in the Apex court ..

These days interesting legal cases are going in the Supreme court of the country.

Foremost is the petition to void abrogation of article 370 by advocate Kapil Sibal,Dushyant Dave and others.

We are of the opinion that everyone must hear / read this proceedings and understand the game that has been going on in the country for decades.  Do read the arguments ofpetitioner lawyers ( against the abrogation of 370) and their bizzare arguments. They have such high images due to previous governments legacy and recourse to sam dam, dand, bhed niti that many judges get cowed down by them. A very senior and good friend of mine advocate BC Jain has told me decade back how Sibal was a hollow constitutional lawyer.

On August 5, 2019, the Centre decided to strip the erstwhile State of Jammu and Kashmir of special status and bifurcate it into two Union Territories. By abrogating Article 370, the Central Government revoked the special status of Jammu and Kashmir. Several petitions challenging the abrogation of the provisions of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, were referred to a Constitution Bench in 2019.

The Supreme Court, on Wednesday, began hearing petitions challenging the scrapping of Article 370 
that granted special status to the erstwhile state of Jammu and Kashmir. A five-judge Constitution 
Bench comprising Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, 
Sanjiv Khanna, BR Gavai and Surya Kant will hear the pleas on a day-to-day basis except Mondays 
and Fridays.

Bizarre argument of senior advocate Kapil Sibal 

On 23rd august 2023 ended the 9th day of the hearing from the petitioners and from tomorrow the court will hear consul of the government.

Kapil Sibal starting the pleading on DAY 1, 2 and 3  put his legal arguments as follows:-

Sibal: This is a pure political act. The governor and government were acting in tandem. They wanted to get rid of 370. Why would the governor on June 20, after withdrawal of support on June 19, suspend the assembly? Not allow any political affiliation, so a new government could be formed.

Sibal: There is no council of ministers, no government in place. But he sends a report that government of the state cannot be carried out. There are no negotiations, no communication.

CJI: Of course, this has the optics of the way it was done. But there was no challenge to anything that was done. What exactly was the frame of the challenge?

Sibal: The question is what is the power under 356. The quintessential object of 356 is to restore democracy. You take over because a government cannot run for a temporary period, for the restoration of democracy. You don’t use 356 for its decimation

CJI: But can a ratification be done under 356? In relation to that particular state legislature?

Sibal: Ratification is of the state, so there are two authorities – one parliament passing the law and then the state authority ratifying it. You can’t take over both. It’s like clapping with one hand. You can’t introduce a bill.

Justice Surya Kant: What was the procedure followed in passing the Constitution orders?

Sibal: It was through a presidential notification- after taking the consent- concurrence or consultation. That’s how it’s made applicable. And the views of the people were to be taken

Sibal: When all states were integrated into the Union, they didn’t need consent. So you lose the link between the centre and the state altogether. You absorb the powers of the state with yourself as the executive, as well as the parliament and the legislature. And you decide without reference to any other institution.

Sibal: The people who gave themselves this constitution are left out of the process. This is essentially a break down of the constitutional structure.

Was it a political act ? What a shameful argument of this man and why does the court tolerate him ?

he further says,

Sibal: I am not being political, but this is a worrisome part.

Sibal: I am making a fundamental point here which affects the future of our country. If you in principle say that a parliament can convert itself in a constituent assembly, then where do we go? Forget about this case. I’m far more worried about our future. It’s a political process in the context of aspirations of all those participating in the constituent assembly.

Sibal: So if you have provisions dealing with minorities, reservations, SC/ST etc- that’s a political process. That’s why our constitution is what it is today. Here it was an amalgamation of colours to be united as one- that is the tiranga

Abrogation of Article 370 was a political act to achieve political purpose, says Kapil Sibal

Our Comment: it is strange that a person how has used all the privileges of being a central minster and has represented the congress party for many years blames the government of being political in the court of law. How can the learned judges tolerate such double nature of a lawyer is not understandable.

Sibal: The Constituent Assembly had a choice till 1957 to recommend the abrogation of Article 370 and be a part of India without any conditions like the other States. They chose not to.

Sibal: Legislature cannot exercise powers to amend 370(3).

CJI: Article 147 of the J&K constitution seems to indicate that the provisions of the J&K constitution are to be treated as subordinate to the Indian Constitution. Which is why, no amendment in the relationship between application of Indian constitution to J&K is applicable.

Sibal: We are not amending the constitution of India. We are amending the constitution order applicable to the state of J&K which makes 370 applicable. And that can’t even be moved in the house.

Sibal: This was a political act to achieve a political purpose

Sibal: There is a clear distinction between the exercise of constituent power and the exercise of legislative power. Parliament, while enacting a law, functions within the contours of the Constitution. Constituent Assembly has no Constitution in place

Sibal: A constituent assembly can do what it likes till such time a Constitution is made.  At no point in time in law, can a legislative assembly be converted into a constituent assembly. It’s not bound by anyone.

Article 370 hearing updates: Kapil Sibal reads from Constitution of J&K

CJI: What happens when the Maharaja is replaced by an elected government in J&K?

Sibal: Then the elected government on aid and advice of council of ministers and it’s part of the Constitution of J&K.

Sibal reads from the Constitution of J&K

Sibal: So when this abrogation happened in 2018 there was no council of ministers.

Senior advocate Kapil Sibal then read exceptions given to the governor of Jammu and Kashmir.

He can go to any extent to prove his arguments…I can show you Article 370 is permanent: Senior advocate Kabil Sibal

Sibal: Article 370 can’t be touched. All other things can be.

Justice Khanna: (c) doesn’t say Article 370 cannot be touched! In fact, it makes it very clear that it can be touched.

Sibal: 370(1)(c) or Article 3, can’t! A marginal note cannot say that it is temporary so I read this in this fashion. That can’t be done.

Sibal: You are now to apply provisions of the Constitution of India. And they are all incorporated in the order. So 356 comes there, Part III, Preamble, DPSPs- come there but that’s all with concurrence.

Sibal: It’s the question of substantive understanding of what 370 is.

Justice Khanna: The exception made here is that the entire Constitution is adopted, subject to the modifications made.

Sibal: Yes, other than Article 1 and 3. We can interpret in whatever manner we can.

Sibal: I can show how Article 370 is permanent.

And he does not stop there with his lies and rhetorics..

CJI: What clause (d) says that if the President is making a modification, exception- then you require a consultation or concurrence in terms of second proviso. What happens if the President is not making any exception or modification at all? Does that require concurrence or consultation?

Sibal: The law is not yet being made. So they are correlating the making of law to the items of lists. The clause says is that qua the lists in the IoA, the parliament may make a law but in consultation.

Sibal: Let me show you the 1950 order.

Our comment: Where was Sibal when Emergency was declared ? Radical change without consulting the people of J&K, argues Kapil Sibal

Senior Advocate Kapil Sibal on Tuesday argued how can there be a radical constitutional change without consulting the people of Jammu and Kashmir? “Can a state be converted into a union territory on its own without consulting the people? These are constitutional measures but such constitutional changes cannot be made with the power of majority,” he said during the hearing.

What does this mean ? Sibal makes arguments to suit his own case..that is not fair and the court must take a strict view of all his arguments and expunge them..

During the hearing a batch of petitions challenging the abrogation of Article 370, Kapil Sibal argued that the constitution cannot be “manipulated or manouvered” for political ends. “The constitution is a political document but you can misuse it politically,” he said.

End of Day 3 hearing ..(https://www.indiatoday.in/law-today/story/article-370-abrogation-special-status-jammu-kashmir-hearing-day-3-live-supreme-court-sibal-cji-chandrachud-justices-sanjay-kishan-kaul-sanjiv-khanna-br-gavai-surya-kant-2417826-2023-08-08).

Day 4:

On the fourth day of the Indian Supreme Court’s hearing in the batch of petitions challenging the dilution of Article 370 of the Constitution of IndiaSenior advocate Gopal Subramanium on August 9 apprised a Constitution Bench headed by Chief Justice of India D.Y. Chandrachud that the Jammu and Kashmir (J&) Constituent Assembly did not intend for Article 370 to be abrogated and that it had envisioned for the Constitution of India to apply to J&K with modifications and exceptions. Reference was made to Section 147 of the J&K Constitution which bars any amendment that seeks to make changes in the provisions of the Constitution of India as applicable to J&K.

During the hearing, CJI Chandrachud also enquired if the Presidential Order [CO 272] could have amended Article 370(3) of the Constitution with the help of an interpretative provision –Article 367.

Responding to this query, Mr. Subramanium submitted that the exercise of powers under Article 356 cannot clothe one with legal authority under Article 370.

Senior advocate Zaffar Shah, appearing on behalf of the Bar Association of J&K, is set to advance submissions tomorrow that is on August 9.

Earlier, senior advocate Kapil Sibal had contended that a unilateral executive decision cannot change the terms of a relationship that is constitutionally embedded in Article 370. Chief Justice D.Y. Chandrachud had also pointed out earlier that as a constitutional democracy, India seeks its public opinions through established institutions like the Parliament and not through Brexit-type referendums.

The court on August 3 asked whether Article 370, which gave special status to Jammu and Kashmir, is being equated to the Basic Structure of the Constitution.

Day 5

Noting that integration of Jammu and Kashmir with India was “absolute and complete”, the Supreme Court on Thursday said the Constitution of Jammu and Kashmir can’t be read as a document that retained some element of sovereignty in the state.

“Once Article 1 of the Constitution says that India shall be a Union of States — and that includes the state of Jammu & Kashmir — transfer of sovereignty was complete. We cannot read the post Article 370 Constitution (of Jammu and Kashmir) as somehow a document which retains some element of sovereignty in Jammu & Kashmir,” said Chief Justice of India DY Chandrachud – who headed a five-judge Bench hearing petitions challenging the validity of nullification of Article 370. Emphasising that “distribution of legislative powers does not impact the sovereignty of India,” the Bench said restraint on Parliament’s powers to make laws on subjects in the State List also applied to states other than Jammu and Kashmir.

“One thing is very clear – that there was no conditional integration of Jammu and Kashmir with India. The integration was absolute and complete in every way. So the only question which remained in a limited sense was if Parliament could exercise the powers,” said the Bench which also included Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant. Referring to the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1972, which amended Article 248 which deals with residuary powers of legislation, the CJI said, “In 1972, Article 248 was amended in relation to its application to J&K. Article 248 was substituted. Now, it says Parliament has exclusive powers to make any laws on prevention of activities towards disrupting sovereignty of India. So, no vestige of sovereignty was retained post Instrument of Accession.”

The CJI’s comments came after senior counsel Zaffar Shah contended on behalf of the Jammu and Kashmir Bar Association that Jammu & Kashmir had constitutional autonomy which came from the Instrument of Accession and Article 370. “If you want to completely integrate, then a merger agreement has to be executed,” Shah said.

“The President and the Union (of India) can make laws for any state in the country without their view but not for Jammu and Kashmir,” he submitted. On the fifth day of arguments, Shah submitted, “The genesis of the Constitution of Jammu and Kashmir is in the Instrument of Accession and the order of proclamation. The first part of Article 370 talks of application of laws in List 1, list 2, list 3… It mentions ‘consult’,” Shah said, adding, “’Consult’ does not mean ‘agree’… you may disagree also.”

However, the CJI said, “Restraint on power to enact legislation is implicit in the scheme of the Constitution because we don’t have a unitary State. But does that retract from sovereignty? No. It’s just a fetter on the powers of Parliament.”

“Take the case of an Indian state apart from J&K. There are restraints on power of parliament to make laws for any states for subjects in State lists, the CJI said, adding, “There are provisions in the Constitution which apply with concurrence of states also.” During the hearing, Justice SK Kaul said, “To say that Article 370 is such that it can never be amended is a dangerous thing to say. The state assembly could have also said let all provisions of the Constitution apply to J&K using Article 370. Except that Article 370 remains a skeleton, everything else applies…Whatever was there in Article 370 has been removed using the machinery of Article 370 itself.”

Responding to Justice Kaul’s observation, Shah said, “I (J&K) still have constitutional autonomy, maybe a little. Maybe, it’s a skeleton as Justice Kaul said…But somebody felt that the skeleton was disturbing him. Therefore, he got it off.”

Day 6

Senior advocate Rajeev Dhavan on August 16 apprised the Supreme Court that the internal sovereignty of Jammu and Kashmir was not revoked with the signing of the Instrument of Accession in 1947. Mr. Dhavan cautioned that the President does not exercise ‘carte blanche’ powers during the operation of the President’s Rule under Article 356 of the Constitution and that restrictions must be imposed to curb its misuse.

During the proceedings, Mr. Dhavan also outlined various provisions of the Constitution that are special provisions to take into account the ‘different realities’ of various states. It was underscored that Article 370 of the Constitution is one such provision and is also a part of the basic structure of the Constitution as a substitute for a merger agreement.

Notably, senior advocate Dushyant Dave submitted before the Constitution Bench that Article 370 of the Constitution is a ‘temporary provision’ not due to the efflux of time but because it has served its object and purpose and therefore cannot be amended anymore.

The Supreme Court said on August 10 that the surrender of Jammu and Kashmir’s sovereignty to India was “absolutely complete” with the accession of the former princely state in October 1947, and it was “really difficult” to say that Article 370 of the Constitution, which accorded special status to the erstwhile State, was permanent in nature.

Observing that once Article 1 of the Constitution says India shall be a Union of States, including Jammu and Kashmir, the transfer of sovereignty was complete in all respects, a five-judge constitution Bench headed by Chief Justice D.Y. Chandrachud said.

Schedule 1 of the Indian Constitution contains the list of States and Union Territories and their extent and territorial jurisdiction, and Jammu and Kashmir figures there in the list. The Bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, observed it cannot be said that some elements of sovereignty in Jammu and Kashmir were retained post Article 370.

Day  7

Senior advocate Dushyant Dave on Thursday argued in the Supreme Court that

the abrogation of Article 370 is a colourable exercise of powers since the BJP

government in its 2019 manifesto had proposed the repeal of Article 370.

Mr. Dave also argued that Article 370 had ‘achieved its life’ and could therefore not be abrogated after the dissolution of the Constituent Assembly in 1957. Countering such a contention, Chief Justice of India D.Y Chandrachud said that the argument that the power to abrogate Article 370 ended with the Constituent Assembly’s dissolution is belied by constitutional practice since several constitutional orders were issued after 1957.

During the proceedings, the Chief Justice also asked if the court was being invited to judicially review the wisdom underlying the decision to abrogate Article 370 while underscoring that judicial review must be confined to a constitutional violation only.

Senior advocate Shekhar Naphade apprised the Supreme Court that the abrogation has led to adverse consequences – for instance, J&K does not have proportionate representation in the Lok Sabha which amounts to a violation of Article 14 of the Constitution.

Also Read | OPINION | Understanding Article 370

The Supreme Court said on August 10 that the surrender of Jammu and Kashmir’s sovereignty to India was “absolutely complete” with the accession of the former princely state in October 1947, and it was “really difficult” to say that Article 370 of the Constitution, which accorded special status to the erstwhile State, was permanent in nature.

Observing that once Article 1 of the Constitution says India shall be a Union of States, including Jammu and Kashmir, the transfer of sovereignty was complete in all respects, a five-judge constitution Bench headed by Chief Justice D.Y. Chandrachud said.

Schedule 1 of the Indian Constitution contains the list of States and Union Territories and their extent and territorial jurisdiction, and Jammu and Kashmir figures there in the list. The Bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, observed it cannot be said that some elements of sovereignty in Jammu and Kashmir were retained post Article 370.

Day 8

The Supreme Court on Tuesday said that the argument that the application of the Constitution of India to Jammu and Kashmir (J&K) would remain frozen after the dissolution of the J&K Constituent Assembly in 1957 cannot be accepted.

The petitioners apprised a five-judge Constitution Bench that the abrogation of Article 370 which pertains to a historically religious minority is a regressive step and that constitutional promise made to the people of J&K in the wake of the horrific partition violence must be upheld.

Senior advocate P.C Sen also pointed out that there is no material on record to show why the imposition of the President’s Rule under Article 356 was necessary in J&K right before the abrogation.

In its last hearing on August 17, the top court appeared unenthusiastic to accept an “invitation” to judicially review the “wisdom” behind the Union government’s decision to abrogate Article 370, which had given a special status to Jammu and Kashmir.

Also Read | Explained | What is the debate around Article 370?

Day 9

Solicitor General Tushar Mehta on Wednesday apprised the Supreme Court that the Union Government has no intention to interfere with the special provisions applicable to North Eastern states or other parts of India.

Pursuant to such an assurance, the Constitution Bench headed by Chief Justice of India DY Chandrachud disposed of an interlocutory application (IA) filed by an Arunachal Pradesh politician. Mr. Mehta made this statement following the apprehensions raised by advocate Manish Tewari about the implications of the abrogation on the prospects of States in the northeast.

The petitioners have concluded their arguments. The Bench is set to hear submissions on behalf of the Union government from Thursday.

The Supreme Court on August 22 termed as “unacceptable” the submission that Article 370 of the Constitution ceased to operate once the term of the constituent assembly of Jammu and Kashmir ended in 1957 after drafting the State’s Constitution.

The remark by a five-judge Bench headed by Chief Justice D.Y. Chandrachud came when senior advocate Dinesh Dwivedi, appearing for intervenor Prem Shankar Jha, argued that nothing of Article 370, which accorded special status to the erstwhile State, survived once the Constitution of J&K was enacted on January 26, 1957, and the term of the State’s constituent Assembly ended.

Conclusion

This ends the 9th day of hearing. From 10 day the governement side Soliticor General Tushar Mehta will start the arguments for the defence. There has to be more  awareness in what all goes inside our legal hall of fame and we are of the opinion that every citizen must get connected to the cases and proceedings. The Sangh must have some dedicated Pracharak as experts in this area and can have some good consultants to guide. Lot of things happen without them , and many others having any inclinations as to what all is going on in the power corrdoors of the country.

WE will keep updated on this as well as other cases in days to come with special efforts to raise the awareness level.

Note: Readers can follow supreme court cases live on https://youtube.com/watch?v=ZzHvWRXYdn4&si=Yrek-CgTmWLjANqV

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