Dramatic start to both sessions of Day 15 as lead petitioner Mohd. Akbar Lone asked to prove his allegiance to India

Mohd. Akbar Lone is the second petitioner In Re Article 370 to get in trouble within the last two weeks. Petitioner-in-person Zahoor Ahmad Bhat was suspended two days after his appearance in the Supreme Court. His suspension has now been revoked.

THERE was high drama at the beginning of both the morning and post-lunch sessions of Day 15 of In Re Article 370 hearings.

A five-judge Constitution Bench is hearing a batch of petitions challenging the de-operationalisation of Article 370 and bifurcation and retrogression of statehood of Jammu and Kashmir (J&K).

The Bench is headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud and also comprising Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant.

Through the Constitution (Application to Jammu and Kashmir) Order, 2019 (Presidential Order C.O. 272) on August 5, 2019, the special status of J&K under Article 370 of the Indian Constitution was abrogated and the state of J&K was divided into two Union territories— J&K and Ladakh.

Today, as soon as the Bench assembled, Bimal Roy Jad, counsel for a Kashmiri Pandit organisation ‘Roots in Kashmir’, informed the court that he had filed an affidavit against Mohd. Akbar Lone for chanting ‘Pakistan zindabad’ slogans in 2018.

Mohd. Akbar Lone is the lead petitioner In Re Article 370 and senior advocate Kapil Sibal is arguing his petition.

Lone is a National Conference leader and a member of Parliament (MP) from the Baramulla constituency in Kashmir.

In the past, he has served as the speaker of the J&K legislative assembly, and is remembered in Kashmir for his rambunctious time in the chair.

He was also the minister of higher education of the state in the Omar Abdullah-led government.

In February 2018, after an attack on the Sunjuwan camp in Jammu, a heated debate ensued in the J&K legislative assembly during which some Bharatiya Janata Party (BJP) members of legislative assembly (MLAs) raised “Pakistan murdabad” slogans.

Lone responded with “Pakistan zindabad” slogans.

Alleging that BJP MLAs had made communally coloured remarks in the assembly, Lone offered this explanation: “Whether I am a Kashmiri, Indian or Pakistani, I am a Muslim first. My sentiments got hurt and I raised the slogans of ‘Pakistan zindabad.”

Morning debate

Today, as advocate Raina briefed the court about his affidavit, saying Lone had not expressed any remorse for his remarks, the CJI responded: “We also read the newspapers. A lot of what is put in the affidavits is preceded by reports in newspapers.”

The Solicitor General of India, Tushar Mehta, joined the conversation and said, “The lead petitioner in the lead petition saying ‘Pakistan zindabad’ on the floor of the House has its own seriousness.”

Your Lordships must look into it to understand who is pressing for the continuation of Article 370,” Mehta averred.

He should file an affidavit saying I owe allegiance to the Constitution of India, because I am before the highest court of the country,” Mehta continued.

He must [also] say I strongly oppose terrorism and secessionism in J&K sponsored by Pakistan,” Mehta said further.

Raina added that Lone had also said that “accession [of J&K with India] is not complete and so many other [similar] things.”

The CJI responded with: “We got your point”.

When the CJI wanted to know Lone’s petition number, Mehta informed the Bench that Lone was the lead petitioner.

But for Your Lordship’s decision to name it In re Article 370, his name would have appeared first, because after Shah Faesal withdrew his petition, Lone became the lead petitioner,” Mehta said.

He is not an ordinary man, My Lord, he is a member of Parliament,” Mehta continued.

Senior advocate V. Giri, another counsel for the respondents, began his submissions thus: “Somebody comes to the highest court of the law, seeking relief and challenging Presidential Orders. If he has made these statements, he should apologise to Your Lordships. He should file an affidavit.”

The CJI replied, “We will speak with his counsel on the matter.”

Mehta rejoined the conversation and said, “If despite it being brought to the notice of the court, the court does nothing, it might encourage others. The efforts of the nation to bring in normalcy [in J&K], which are substantially successful, might be affected.”

Post-lunch debate

Immediately after lunch, Sibal was to begin submissions in reply to the respondents.

At the outset, he stated that the case had been argued at several levels, some of which had nothing to do with the Constitutional questions involved.

He asserted, “Nobody on this side questions the sovereignty of India. J&K is an integral part of India.”

At this, Justice Kaul said, “They say your first petitioner is not in sync with what you are saying.” By they he meant the respondents.

Sibal informed the court that he was not aware of what the petitioner had said and under what circumstances. He also asked the court to ask Lone to file an affidavit if they so desire.

I have nothing to do with it,” he remarked with a Gallic shrug.

His major concern was the precious time of the petitioners’ replies was being wasted in the these arguments which had nothing to do with the case.

But the Bench and the respondents kept pressing the issue.

The CJI asked if Sibal could confirm whether Lone believed in the sovereignty and integrity of India.

Sibal replied, “Of course he does. He is a member of the Parliament and a citizen of India. How can there be any question about his belief in the Indian Constitution?”

If he has said something to that effect, I deprecate it at my level,” Sibal continued.

Mehta chimed in that it was not enough for Sibal to deprecate Lone’s statement, Lone must file an affidavit clearing his stand.

Sibal reiterated his stand that the court could ask Lone to file the affidavit and repeated his earlier stand that he had nothing to do with the issue.

Mehta responded, “It is your client, so you must ask him to clear his stand of terrorism and secessionism.”

At this point, the CJI said, “When he [Lone] invoked the jurisdiction of the court under Article 32 of the Indian Constitution, he necessarily has to abide by the Constitution.”

Sibal repeated that Lone was an MP and a citizen.

But the CJI was insistent, “We want it from him that J&K is an integral part of India and he holds allegiance to the Constitution of India.”

Justice Khanna also reiterated the CJI’s averment.

At this point, Sibal requested the Bench once more to not get into political questions because “it would unnecessarily only lead to media coverage“.

He extolled the Bench not to go in that direction, and requested everyone to stick to the “purely Constitutional questions“.

He said when Lone “allegedly” made the ‘Pakistan zindabad’ comment, there was a speaker of the BJP and that Lone he was being hounded by BJP MLAs in the assembly who “were asking him to say things and chant slogans which others ask people in the streets of this country.”

He also informed the court that the arguments in the assembly of that day are not part of the record.

In fact, the speaker had expunged everyone’s remarks from that arguments, including his own.

The CJI and Mehta kept insisting that Sibal ask Lone to file an affidavit confirming his loyalty to India.

When Sibal complained that more than half an hour of the petitioners’ time had been wasted, Mehta asserted that it was a very serious issue and Lone must apologise to the court.

“It is not a serious issue because you just want me to say something I should not say in a court,” Sibal responded.

At this point, Attorney General of India R. Venkataramani got up and said if Lone was seeking fundamental rights, he must abide by the Constitution.

Everyone has fundamental rights in this country, including those who on the streets you vilify. You should apologise for  them.”

He said with a final flourish, “Let me argue the case. I have made a commitment that an affidavit will be filed.”

Not an unusual fate

Lone is the second petitioner to get in trouble within a period of two weeks.

On August 24, Zahoor Ahmad Bhat, an advocate who teaches political science in a government higher secondary school in Srinagar, appeared as a petitioner-in-person on Day 9 of the hearings.

In his short six-minute submission, Bhat told the court that: “I teach Indian politics to the students in Jammu and Kashmir, and it is very embarrassing and very difficult for me. 

People like me, since 2019, when we teach this beautiful Constitution and the beauty of democracy, the students ask: ‘Are we really in a democracy since post 19th August 2019?’.

Two days later, he found himself suspended from his service, for violation of ‘leave rules’ and ‘employment conduct’.

The Leaflet found that he had followed the proper leave procedure, a fact borne out by a letter from the principal of the school at which he taught.

On Day 11, Sibal had informed the Bench of Bhat’s fate and the court had asked the Union government’s counsel to look into the matter.

His suspension was revoked yesterday.

Another petitioner, Indian Administrative Service officer Shah Faesal, withdrew his petition earlier this year.

He tweeted around that time: “370, for many Kashmiris like me, is a thing of the past. Jhelum and Ganga have merged in the great Indian Ocean for good. There is no going back. There is only marching forward.”

On Day 10 of the hearings, Mehta had told the court, “Whatever be the decision of this court regarding Article 370, one thing is clear, the issue of integration has been clarified once and for all. J&K is an integral part of India and the court has left no doubt about it.”

He was referring to the comments made by more than one judge on the Bench over the previous days of the hearings, while the petitioners were arguing, to the effect that the accession of J&K is complete and there is no doubt that J&K is a part of India.

The Leaflet