Five-judge Constitution bench of the Supreme Court led by CJI DY Chandrachud commenced the hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution today……The hearing is underway……..
CJI DY Chandrachud: We will give prominent hearing to the first counsel and then hear others on the basis of newer grounds
Sr Adv Kapil Sibal to start today
CJI: Mr Sibal please wrap up by tomorrow lunch
Sibal: It may be difficult since historical context has to be heard… but I will try
CJI: Of course our conscience also has to be satisfied
Justice SK Kaul: let us not be mired in history only.. there are legal propositions also
Justice Kaul: Last time we had heard the case for four to five days and we have notes from that time. it was argued for about 90 percent
CJI: Let Mr Sibal open.. we will have a good idea by end of the day
CJI: Mr Sharma we are not calling this case with a petitioner name.. we are calling it In Re: Article 370
Sharma: I filed the first petition.. please let me argue at the end
Justice Kaul: yes yes you will be the last batsman.
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
Sr Adv Sibal : On September 7,1939, Jammu and Kashmir Constitution Act was promulgated
Continues reading list of dates
Sibal: In this hearing the court has to determine what constituent assembly stands for… it stands for enacting the territories of the future… what kind of state the people wants and keeping their aspirations in mind..
exercise of constituent assembly is a political exercise and once constitution comes into force.. all institutions are governed by the Constitution and those institutions are limited in the exercise their powers since they have to exercise it in accordance with constitution and parliament cannot convert itself into a constituent assembly.
Today Indian parliament cannot say by a resolution that they are constituent assembly since they are caged by the provisions of the constitution. Executive cannot act against the law.
If this proposition is accepted then it has enormous ramifications for the future of my country and that is the core issue to be decided in this case. Here parliament converted itself and declared legislature of J&K. Where does parliament get that power? Not under Article 354!
Sr Adv Kapil Sibal: On 26.10.1947 the Ruler of Jammu and Kashmir, Maharaja Hari Singh, made an offer of accession to India, asking for help from the Indian Dominion to meet a grave emergency, caused by “the mass infiltration of tribesmen drawn from the distant area of North-West Frontier coming regularly in motor trucks Mansehra-Muzzafarabad road and fully armed with up-to-date weapons [which] cannot possibly be done without the knowing of the Provincial Government of the North-West Frontier Province and the Government of Pakistan.”
Sr Adv Sibal: at that Sheikh Abdullah was in prison… he was against the despotic ruler.. and he was against him.. but he realised that unless he is on their side he cannot act on his cause…
[Junior to Sr Adv Sibal murmurs]
Sibal to his Junior: no I do not want to take any names else the other side will be … why Nehru etc.. I don’t want any politics in this case.. no fireworks in this solemn occasion
Sr Adv Kapil Sibal reads the original instrument of accession:
Sr Adv Kapil Sibal reads schedule to the instrument of accession:
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 Sibal: no revised instrument of accession was signed by the ruler of Jammu and Kashmir
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… [Courtesy: Bar & Bench] [Compiled: KNT]