Supreme Court Hears Challenge to Abrogation of Article 370 | Day 3

Transcript:

Hello and welcome to SCO Daily. Senior Advocate Kapil Sibal completed his arguments against the abrogation of Article 370 today. He ended his arguments with a passionate monologue and said “Where is the voice of the people of J&K? Where is the voice of representative democracy? 5 years have passed! Even when there is a clash of arms, the law, and the Court is never silent. When the Court has been silent, consequences have been disastrous. If through such executive acts, the voice of the people is silenced, what is left of democracy?” In the same way he began arguments on August 3rd, he said “This is a historic moment, not for the present, but for the future of India. I hope that this Court is not silent.”

In today’s episode, we breakdown his final arguments on Day 3 of the hearings in the challenge to the abrogation of Art. 370. Sibal argued that a constitutional relationship between India and Jammu and Kashmir was enshrined under Article 370 and could not be changed by any means after the dissolution of J&K’s constituent assembly in 1957. However, the Union dissipated this relationship through two Presidential Orders in 2019. This was an executive action. In contrast, Kashmir’s accession to India and the inclusion of Article 370 into the constitution were both political actions. Therefore, Article 370 could only be abrogated through a political decision, which reflected the will of the people of Kashmir. Not through an executive order. 

Even today, after 3 days of arguments on Article 370 being a permanent feature of the Constitution, the Bench seemed quite unconvinced. Chief Justice D.Y. Chandrachud asked whether the J&K Constituent Assembly’s decision to not remove Article 370 was enough to make it a permanent feature of the Constitution. After all, it was the Constitution of India—wasn’t some action of the Indian Parliament necessary to make it permanent for our Constitution? A visibly frustrated Sibal responded that nothing in India was ever done since 1957 (the year the J&K Constituent Assembly dissolved) in contradiction to Article 370. This sufficiently showed India’s agreement to make 370 a permanent feature of the Constitution.

Sibal then attacked the two presidential orders used to abrogate Article 370. The First one, Co 272, he said created a constitutional myth. This Presidential Order said that the Governor would act “on the advice of his council of ministers”. Sibal pointed out that at this stage, there were no Council of Ministers in the State as it was under President’s rule and the Assembly was suspended. 

Next, he referred to the replacement of the words ‘Constituent Assembly’ with ‘Legislative Assembly’, which effectively allowed Parliament to recommend abrogation of Article 370 without any recommendation from the people of J&K. He argued that the President had no power to do this, and therefore this was an exercise of executive power rather than a 

Constitutionally recognised political one. He argued that Article 367, which was amended in this presidential order, was an interpretation clause, not a substitution clause. This meant that it couldn’t just substitute the meaning of ‘Constituent Assembly’ and replace it with ‘Legislative Assembly’. 

Upon looking at Article 367 closer, the Bench wondered—why did the Presidential Orders touch upon Article 367 at all? At this time J&K was under president’s rule, and the Legislative Assembly had already been equated to Parliament. Parliament could have abrogated Article 370 on its own. Sibal responded that for the Union’s plans to play out, the Constituent Assembly had to be changed to the Legislative Assembly. The Union knew that it did not have the power to amend Article 370 only the ‘constituent assembly did’, as per Article 370(3). Without this, Sibal argued, Parliament could never have been able to exercise the power to abrogate J&K special status. 

In the second half of the day, Sibal took the Court through various Judgments that supported his arguments about the contours of Article 367, the limits of the parliament’s powers, and the intent of the Constitution framers to make Article 370 permanent. He briefly touched upon the arguments against the bifurcation of J&K in the last 10 minutes of his arguments. Relying on Article 3 of the Constitution, he argued that a State cannot be downgraded to a Union Territory by executive action.

Sibal posed some crucial questions before the Court as it decided this case: Is there is a limit to executive power? Can executive power be used to make permanent changes to the Constitution? Can Constituent powers be equated with parliamentary powers? 

Senior Advocate Gopal Subramanium will continue arguments for the petitioners tomorrow,  9th August 2023. 

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