4:09 pm, 03 Aug 2023
Matter ends for today. Hearing to continue on August 8 (Tuesday next week).
4:08 pm, 03 Aug 2023
Sibal takes the court through the proclamation of 2018.
Sibal: Now I will take you through the 11 am order passed (on abrogation).
CJI DY Chandrachud: We will resume hearing on Tuesday.
Sibal: 11 am order at 11 am again.
Bench smiles.
3:43 pm, 03 Aug 2023
Justice Kaul: They carved out a Union Territory (UT) from a State and made a State into a UT.
Sibal: Yes they did.
CJI: Yes the boundaries were changed. And for J&K consent is needed and for other States only views of the State needed to introduce the bill.
3:29 pm, 03 Aug 2023
Sibal: Under what power was the State Constitution suspended? Its a mosaic of illegalities.. which is perfect to be junked.
CJI DY Chandrachud: There is no challenge to anything of this sort.
Sibal: There is a challenge to Article 356 proclamation of emergency
CJI: Show us the frame of challenge in the petitions as well.
Sibal: We have to see what is the power under Article 356. You cannot amend the provisions of the constitution under Article 356.
CJI: Suppose a particular state legislature exercises power under Article 356, can a ratification be done?
Sibal: There is no question of ratification because it is the state legislature.
3:12 pm, 03 Aug 2023
Sibal: The Governor did not want to wait for a single day... Immediately on the next day ... he dissolved the Assembly... PDP faxed the Governor that they have the support of the National Conference Party and would form the government.. but the Governor says, he was in Jammu and the fax was sent to Srinagar.. so he goes ahead and dissolves the Legislative Assembly ...
CJI: Without aid and advice?
Sibal: No, nothing.. This was a pure political act.. Governor and government were acting in tandem to toss out Article 370 ...
CJI: - Which is the power of dissolution under J&K Constitution?
Sibal: Yes, Article 53 ...
3:04 pm, 03 Aug 2023
CJI: But what is prescient is Dr. Ambedkar postulates that a future Constituent Assembly may be the future Parliament.. but it may be partisan..
Sibal: That is my precise argument
2:53 pm, 03 Aug 2023
Justice Gavai: What about Article 363A ...?
Sibal: The rulers completely assimilated into the union or they were taken over
Justice Gavai: You are saying, unless the will of all people of J&K was taken into consideration, the abrogation could not have happened? If other States could be taken by 363A, then why not ...?
Sibal: J&K was different.. How do you change a constitutional structure..? By political act.. but that is not the issue before you...
Justice Kaul: Everything is a political process, Mr. Sibal ... All that has to be seen is that whether it is a constitutional process or not ...
2:47 pm, 03 Aug 2023
Sibal: Residuary power is always with the State.. but I get what is being said that status quo cannot be changed once Constituent Assembly comes to an end.. Of course, it can be when there is a constitutional process
CJI: But then does it become like the basic structure..
Sibal: This is a constitutional compact between two heads.
CJI: But the flipside is that one sovereign act can be undone by the succeeding sovereign.
Sibal: That is not the issue here.
2:42 pm, 03 Aug 2023
CJI: How would you put in place the constitutional machinery? It cannot be that because there is no constituent assembly, you cannot at all deliberate upon a proposal for abrogation or modification of Article 370.
Sibal: If a constitutional process is there to do away with Article 370 then it can be done. But if there is no constitutional process then it has to be a political act. Clause 3 of 370 cannot be done away with.
Justice Khanna: With Article 371.
Sibal: No it cannot be done.
2:42 pm, 03 Aug 2023
CJI: What happens when there is no Constituent Assembly ... Post-1957 India ... ? Before elections were held, by adult suffrage they composed the Constituent Assembly. Your argument is that what is to be done by Constituent Assembly cannot be done by Legislative Aassembly. What happens when there's no Constituent Assembly? Do you create a fresh one?
Sibal: There is a historical context to this. The Parliament included a provision for J&K. It is not an isolated act. The Maharaja was consulted.
2:35 pm, 03 Aug 2023
Sibal: The flexibility was at the instance of the Constituent Assembly and not the Parliament. This was not given to the Legislature because Article 147 of J&K Constitution says there cannot be any such flexibility at all.
CJI: When was the first reference to the Constituent assembly in the documents prior to the Constitution of India? I read it in the proclamation of the Maharaja.
Sibal: It was contemplated by the constitution makers that there shall be a Constituent Assembly and that is why it came into existence in 1951.
2:35 pm, 03 Aug 2023
Justice Sanjiv Khanna: There is a slight difference between article 370 and what is stated here. Article 370 has an element of flexibility. Let us not go into how it was done etc., hether with consultation or acceptance.
When we read clause 3, at the time when Constitution of India was adopted, there was no Constitution of J&K and there was no Constituent Assembly for J&K. But they knew ConstituentAassembly will come. Why cannot we accept that argument that Constituent Assembly of J&K for the purpose of the proviso could also be interpreted to include the Legislative Assembly?
Keeping in mind that Parliament could have amended Article 370 also and if the objective was not to close or not to put Article 370 in a straight.
Sibal: I was reading Kesavananda Bharati judgment on the point of marginal note and how it plays a small role in the constructive interpretation of the Constitution of India and Article 368.
Legislative assembly cannot be converted into constituent assembly because intent of legislature can be partisan but that cannot be with the constituent assembly.
Justice Kaul: Was the constituent assembly of J&K elected?
2:19 pm, 03 Aug 2023
Hearing resumes.
1:07 pm, 03 Aug 2023
CJI: Please take us through the process followed for the abrogation... We will resume at 2 pm.
12:47 pm, 03 Aug 2023
CJI: But to completely divorce the power of amendment from the political power of amending is also not proper.. the constituent power of the Parliament to amend the constitution is a political power...
Sibal: Of course, that is my point ...
CJI: Yes, you are saying when it is amending it is not converting itself into a constituent assembly.. because constituent assembly is untrammelled and is working on a clean slate. Okay..
12:46 pm, 03 Aug 2023
Sibal: Milord, the basic argument is, the Parliament works within the four corners of the Constitution. But the Constituent Assembly works in the absence of the Constitution and is not bound by anything ... They can do what they want.
So, the Parliament cannot convert itself into the Constituent Assembly. If this is allowed then one day the Constituent Assembly will breach the basic structure. I am not worried about this case.. What about the future of the country then, if this is allowed? This is the genesis of the politics of the day which defines what kind of Constitution we want...
12:40 pm, 03 Aug 2023
Sibal: This was a political act to achieve some political objective de hors the provisions of the Constitution. Parliament cannot convert itself into a Constituent Assembly.
12:39 pm, 03 Aug 2023
Justice Kaul: Does it not mean that - the implication is that the Constitution of India is being made applicable to the State ... then you cannot amend something which is already made applicable.. you are saying this ...
Sibal: My argument is that the Constituent Assembly has exercised its choice and now under what provision of the Constitution can you change that? ... Under Article 356? How can this be done... ?
12:38 pm, 03 Aug 2023
Sibal: Constituent Assembly, when drafting it, decided that status cannot be changed and the Legislature cannot change ... That is the element of permanency.
CJI: Your submission is, Legislature has no power to change the status of Article 370?
Sibal: Yes.
12:37 pm, 03 Aug 2023
Sibal: Article 147 of the Jammu and Kashmir Constitution Act makes it clear that no Legislature can move a bill to amend Article 370 and it was temporary only because the Constituent Assembly was there ... There can be no amendment to Article 370 ... Legislature has no such powers ...
Justice Kaul: Can the Constitution of Jammu and Kashmir give a permanency to Article 370 of the constitution of India? Under 370(3), Legislature has no power to amend the Article
Sibal: That is why Legislative Assembly was converted into a Constituent Assembly and Parliament converted itself into a Constituent Assembly. This is unheard of!
12:35 pm, 03 Aug 2023
Sibal: When the governor dissolved the Assembly in November 2018, there was no consultation with the Council of Ministers, with exceptions being Sections 36, 38, and 92. Article 92 is the proclamation of emergency ... and how parts or whole of the Constitution be suspended.. this was because Jammu and Kashmir had a unique status.
12:34 pm, 03 Aug 2023
Sibal: Governor can dissolve the legislative assembly only on the aid and advice of the Council of Ministers.. but nothing of that (sort) happened when the assembly was dissolved in November 2018.
11:47 am, 03 Aug 2023
Justice Kaul: You are saying that Article 370 has become a permanent feature of the Constitution.. Suppose it is not permanent (sic) then how it can be abrogated and if the process followed was correct. These are the only two issues.
CJI: Mr. Sibal, you are correct in one point that the constitutional practice has been to selectively apply the constitution to Jammu and Kashmir and not the whole thing. Of course, we will hear the AG on this too.
11:45 am, 03 Aug 2023
Sibal: Any provision in the concurrent list if being made applicable to J&K would require concurrence and consultation with the state.
Justice Khanna: Before the entire constitution being made applicable. Article 356 was excluded.
CJI: See part 2.. see clause 2 of the 1954 order.
Senior Advocate Gopal Subramanium: Part 3 was included in full.
Sibal: Please see part 18.
Justice Khanna: The very fact that some articles have been excluded..
CJI: What about those parts which are not specified as parts?
11:17 am, 03 Aug 2023
CJI: There are two possible construction of clause (d). One is that (d) refers to if President is making an exception and modification, and if it is (b) (1) subject then it requires consultation... and if it is beyond (b) (1) subject, then you need concurrence.
Other interpretation is if you make any provision applicable to Jammu and Kashmir, apart from exception or modification. Then also it needs consultation and concurrence. Now we have to see which is the correct approach. Constitutional practice supports one view.
11:16 am, 03 Aug 2023
CJI: If it is a limiting clause then power of parliament to legislate is traceable elsewhere.
Justice SK Kaul: It is a double limitation. What has it limited to? To matters in the union and concurrent list. The second part is which is in consultation with the State government and then it is for that part of union and concurrent list which forms part of the instrument of accession for those the Parliament can legislate.
Sibal: It is only contours on which the parliament will enact the law. When it comes to (b) (2), the contours again.. it only delineates the contours.
11:15 am, 03 Aug 2023
Sibal: Clause (b) (1) refers to specification of matters which are covered by instrument of accession regarding which parliament can make laws. Now first proviso to clause (d) will not cover that.
See, first proviso says no such matters referred to in the instrument will not be there unless there is consultation with the State. So where President is making an exception or modification, then he has the power.. but first proviso says if President is making an adaptation or modification, to what is there in instrument of accession, then you need consultation (with the State).
I was wondering what clause (d) says is if the President is making exception or modification to the application of the Constitution to Jammu and Kashmir, you need a consultation or concurrence. But what happens if he is not making consultation or concurrence at all? What happens then? Then do you require it in terms of clause (d)?
11:05 am, 03 Aug 2023
Sibal: It was a solemn promise made that you will not change the boundaries. This was with concurrence milords.
Chief Justice of India (CJI) DY Chandrachud: What is the distinction between consultation with the state between sub-clause (i) of clause b and that in first proviso of clause d? There has to be some meaning why there are two provisions for the same thing
Sibal: Clause b(1) is about making law. That is different.
10:57 am, 03 Aug 2023
Sibal reads the The Constitution (Application to Jammu and Kashmir) Order, 1954.
10:52 am, 03 Aug 2023
Sibal: There is a nuanced interpretation of Article 370. There were substantive provisions of the Constitution of India which were made applicable to Jammu and Kashmir (J&K) like the directive principles of state policy, fundamental rights. It has nothing to do with the lists.
10:52 am, 03 Aug 2023
Hearing commences.
10:50 am, 03 Aug 2023
Senior Advocate Kapil Sibal appearing for Mohammad Akbar Lone of the National Conference political party to resume submissions
10:14 am, 03 Aug 2023
A Constitution bench of the Supreme Court of India is hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution which conferred special status on the erstwhile State of Jammu and Kashmir.
A Bench of Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant is hearing the matter.
Yesterday, the top court began hearing in the matter with a question to the petitioners about whether the Constitution makers and Article itself envisaged the provision as a permanent or temporary one.
The Court sought to know whether the Article was envisaged as a permanent provision merely because the Constituent Assembly of Jammu and Kashmir (J&K), which was empowered to recommend the deletion of the provision, ceased to exist in 1957.
The CJI was referring to the proviso to clause 3 of Article 370 as per which the recommendation of the Constituent Assembly of Jammu and Kashmir is necessary before Article 370 can be declared to be inoperative by the President of India.
Over 20 petitions are pending before the Supreme Court challenging the Central government's 2019 decision to abrogate Article 370 of the Constitution, which resulted in the revocation of Jammu and Kashmir's special status. The erstwhile State was subsequently bifurcated into two Union Territories.
When the matters were listed in March 2020, a five-judge Constitution Bench of the Supreme Court had decided not to refer the batch of petitions to a seven-judge Constitution Bench, despite some petitioners seeking a reference.
On July 11 this year, two petitioners, Shah Faesal and Shehla Rashid sought permission to withdraw their pleas and the request was allowed by the Court.
Live updates from the hearing today.
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