“Though the Constitution is a political document, its provisions cannot be manipulated for political ends,” argues Kapil Sibal of Day 3 of Article 370 hearings

On Day 3 of the hearings in a batch of petitions challenging the August 5, 2019 decision to put an end to the autonomy guaranteed to Jammu and Kashmir (J&K) under Article 370 of the Constitution, the five-judge Constitution Bench of the Supreme Court and the petitioner's counsel debated the legitimacy of the Presidential Orders which introduced non-restorative changes in the context of Article 370.

—

"Can you decimate the will of the people of Jammu and Kashmir (J&K) through an executive act?" asked senior advocate Kapil Sibal on Day 3 of the Supreme Court hearings on a batch of petitions challenging the manner in which the asymmetric autonomy of J&K was diluted.

On August 5,  2019, The Constitution (Application to Jammu and Kashmir) Order, 2019 (Presidential Order C.O. 272) was introduced.

Through the passage of Article 370(1)(d), the Presidential Order C.O. 272 allowed all provisions of the Indian Constitution, including its exceptions and modifications, to apply in relation to J&K.

Today, the Supreme Court continued hearing arguments on whether Article 370 has attained "permanent character".

What has happened so far?

So far, senior advocate Kapil Sibal, counsel for the lead petitioner, has sought to characterise the de-operationalisation of Article 370 as a "political act", as opposed to a "constitutionally-mandated act" before a five-judge Constitution Bench headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud.

Sibal's argument is that the constitutional machinery of India has been used to justify a purely political act, which is permitted neither under the fundamental principles of constitutionalism nor under the Indian Constitution itself.

The Bench also comprises Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant.

In the previous hearing on August 3, Sibal told the Bench that there is no "constitutional process" through which the special status of J&K can be taken away.

He had argued that it was taken away nevertheless through a political act of the governor of J&K, acting in tandem with the Union government.

As per his submission, once the Constituent Assembly of J&K had been dissolved in 1957, Article 370 was "frozen in time".

The submission was made in response to a query of the CJI on what, according to the petitioner, is the manner in which Article 370 could have been abrogated or modified.

Sibal's response caught the attention of Justice Kaul, who remarked that the Indian Constitution is a living document and there must be a mechanism through which changes can be inculcated with time.

Justice Kaul added that Sibal's argument suggests that Article 370 has to be equated with the basic structure principle of the Constitution.

The CJI added to Justice Kaul's argument and asked if Article 370 was in "a new category, over and above the basic structure of the Constitution" and thus beyond the amending powers of the Indian Parliament.

Sibal refused to engage with the questions, asking a new question instead: Which authority under what power can de-operationalise Article 370?

He repeated his earlier argument that once the Constituent Assembly of J&K had been dissolved, there was no authority left with the power to de-operationalise Article 370.

He added that Article 370 was a result of a "constitutional compact" entered into by the independent princely State of J&K and the dominion of India.

Any unilateral action by Union of India in respect of Article 370 may have serious consequences  

Referring to a speech by former Prime Minister of J&K Sheikh Abdullah, Sibal pointed out that although Article 370 is termed as a temporary provision, it does not mean that Article 370 is capable of "being abrogated, modified or replaced unilaterally".

In an August 11, 1952 speech before the Constituent Assembly of J&K, Abdullah had stated that the temporary nature of Article 370 is in the aspect of finalising the constitutional relationship between J&K and the Union of India, the power of which is specifically vested with the Constituent Assembly of J&K.

Sibal added that the speech pointed out that any decision relating to the modification or amendment of Article 370 or any other provision of the Constitution of India as applicable to J&K must be "subject to the decision of the sovereign body".

Abdullah had said, "The Constitution of India has confined the scope and jurisdiction of Union powers through the terms of the Instrument of Accession with a proviso that the provisions may be extended in such other matters as the President [of India] may by Order specify with the concurrence of the Constituent Assembly of J&K."

The Instrument of Accession limited the power of the dominion legislature (later exercised by the Parliament of India after the Constitution was adopted) to "defence, external affairs and communications".

Further, he had said: "[T]he Constituent of India clearly envisaged convening a Constituent Assembly for the State of J&K, which would be finally competent to determine the ultimate position of the State [of J&K] in respect of the sphere of accession which would be incorporated as in the shape of permanent provision of the Constitution [of India]".

"Any suggestions of altering [Article 370] arbitrarily, the basis of our relationship with India, would not only constitute a breach of the spirit and letter of the Constitution [of India] but might invite serious consequences for the harmonious association of our State with India".

"The formula evolved with the agreement of the two governments remains valid today as it was when the Constitution was framed," Abdullah had averred.

Previously, Sibal argued that the agreement entered into and signed by the two sovereigns remains the basis of why Article 370 cannot be completely done away with.

Executive acts through Presidential Orders illegal 

The Presidential Order C.O. 272, the Presidential Order (C.O. 273) declaration (C.O. 273), and the imposition of the Presidential Rule imposed on December 19, 2018, and further extended for six months with effect from July 3, 2019, was challenged by Sibal through certain principles of interpretation.

As per Presidential Order C.O. 273, as and from August 6, 2019, all clauses of Article 370 became inoperative.

Sibal argued that the court must consider three principles while interpreting the above mentioned executive Orders. First, the clear language of the text in its structural and historical context ought to be given effect.

Second, if there is a textual ambiguity in the text of the provisions through which executive acts have been passed, the interpretation which is closer to constitutional values, namely representative democracy federalism, and constitutional morality, must be preferred.

Moreover, the powers vested under the Indian Constitution are not unfettered. They are limited in the point of time when they are exercised. They are also limited by core constitutional principles and values.

Applying these principles to Article 370(1)(d), Sibal submitted that the power that can be exercised by the President of India does not extend to abrogation of Article 370.

Sibal also submitted that the power under Article 3 (formation of new states and alteration of areas, boundaries or names of existing states) of the Indian Constitution does not extend to effacing the character of a state into a Union territory.

Before this Presidential Order C.O. 272 was issued, a Statutory Resolution was moved in Rajya Sabha on August 5, 2019, through which The Jammu and Kashmir Reorganisation Bill, 2019 was introduced.

The Bill intended to bifurcate the State of J&K into two new Union territories, namely J&K and Ladakh, with the former retaining a legislative assembly, and was passed on August 9, 2019.

The President Order C.O. 272 which superseded Constitution (Application to Jammu and Kashmir) Order, 1954 (Presidential Order C.O. 48) inserted a proviso to Article 3 (formation of new states and alteration of areas, boundaries or names of existing states) of Indian Constitution.

The proviso stated that no Bill altering the name or boundary of the State of J&K shall be introduced in the Parliament without the consent of the State legislature.

Sibal in this context remarked: "The principles of a representative form of government do not allow the extinguishment of a state."

He added that two Union territories can be carved out from a state but the retrogression of a state is both against the text of the Indian Constitution and the principles of constitutional democracy.

Lastly, the power under Article 356 does not extend to making non-restorative permanent alterations to J&K's constitutional status, as per Sibal. He made this argument in the context of the governor's rule which was imposed in J&K on June 20, 2018. 

At the end of the governor's rule, Presidential rule was imposed during which Article 370 wasde-operationalised. 

The governor's rule was imposed after the Bharatiya Janata Party pulled out of coalition government with the Peoples Democratic Party.

In the previous hearing, Sibal pointed out that the governor did not entertain attempts to form a government and immediately dissolved the legislative assembly.

Today, Sibal submitted that the governor is not an "omnipotent" authority but a "constitutional delegate".

Sibal posed the question: If the President cannot dissolve the Parliament without the aid and advice of the Union cabinet, how can the governor exercise that authority?

Sibal concluded his submissions by stating: "Where is the voice of the people of J&K? Where is the voice of representative democracy? Five years have passed [since Article 370 was abrogated]"

"Though the Constitution is a political document, its provisions cannot be manipulated and manoeuvred for political ends," Sibal said.

Lastly, Kapil Sibal prayed that in such a historic moment when the court is finally hearing the matter, it can only be hoped that the court does not remain silent.

Senior advocate Gopal Subramanian will begin his arguments tomorrow.