Today, the Supreme Court resumed hearings in a series of petitions challenging the mitigation of Article 370 of the Constitution of India that stripped the state of Jammu and Kashmir (J&K) special status. The Constitutional Committee, which includes Chief Justice of India DY Chandrachud, Judges Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, heard arguments made by Senior Advocate Kapil Sibal, who is appearing as MP for the Mohammad Akbar Sole National Conference.
In today’s arguments, Senior Advocate Sibal contended that Article 356 could not be used to bring permanent alterations to the structure of the Indian constitution in its application to J&K. He submitted that the President’s rule was meant to restore democracy and not decimate it. He asked – “Is there a limit to the emergency power? Or is it unlimited? Can an emergency be declared to make permanent changes? Can constituent power be equated with ordinary power, effacing the source of their authority? Can constitutional change happen without consultation with the people of J&K, despite an express provision in that regard?”
According to the CJI, a Brexit-style referendum is not permitted under our Constitution.
Senior Advocate Kapil Sibal began his argument today by referring to the J&K Constituent Assembly speeches. Through these speeches, including those by Sheikh Abdullah, Mir Kasim and MA Beg, he sought to highlight the background and historical background of J&K’s engagement with India. He argued that the executive’s unilateral decision could not change the terms of the relationship enshrined in the Constitution under Section 370. He argued–
“An executive act of the Union of India cannot alter unilaterally provisions of the Constitution of India as applicable to the State of J&K, including getting rid of the special status given acceded to by the Government of India and the Parliament in enacting Article 370 of the Constitution.”
At this point, Justice Kaul asked if Sibal had said that repealing Section 370 was an executive action. Sibal replied in the affirmative and said that invoking section 356 and amending section 367 are both executive acts by presidential decree and that Parliament only intervenes when the amendments have been made by the executive. He argued-
“Parliament accorded approval to executive acts that unilaterally changed the constitution as it was applicable to J&K. Could the Union of India have done it?”
To this, the bench asked:
“Is it your case that the Parliament could have done it?”
Sibal replied in the negative and said,
“No! Not at all. That’s also what I’ll answer. Ultimately, this was a political decision taken in the context of the situation prevailing. Right? And the complete abrogation must also be a political decision. Your lordships must remember Brexit. What happened? There was no constitutional provision seeking a referendum. But when you want to sever a relationship, you must seek the opinion of the people. Because people are central to the decision.”
The CJI said–
“In a constitutional democracy, seeking the opinion of people has to be through established institutions. So long as democracy exists, any recourse of the will of the people has to be expressed by an established constitution. So you cannot envisage a Brexit-type referendum. That’s a political decision that was taken by the then government. But within a constitution like ours, there is no question of a referendum.”
Sibal reiterated that the repeal was a political decision, not a constitutional one. The CJI later said that the question was whether the constitution would give such power to repeal Section 370. Sibal replied –
“That’s all I’m asking. Can the Union of India in this manner terminate a relationship recognised in the Constitution of India?”
Can Article 370 grant permanent status without the express consent of the Indian Parliament?
The debate then turned to whether the J&K Constituent Assembly was giving any indication of the direction it wanted to head. Sibal argued that if the Constituent Assembly wanted to repeal 370, it would have happened. He added that between 1951 and 1957, the council could have ended the nature of Section 370 but chose not to do so. Thus, the proceedings of the Constituent Assembly proceedings point to a reaffirmation of the regime of Article 370.
In this regard, CJI asked–
“This begs one question: could Article 370, which was envisaged as a temporary provision, be converted into a permanent provision merely by the proceedings of the J&K assembly? Or was an act mandated by the Indian Constitution—in the form of a constitutional amendment – required?”
Sibal argues that since the Government of India has never expressed an opposing view throughout the process, it can be assumed that they agree. However, the CJI reiterated its position and questioned whether congressional intervention was necessary to turn an interim provision into a permanent one. Sibal responded by stating–
“Let’s assume it is amendable. How will it be amended? The constitution must provide a solution.”
What You Cannot Do Directly, You Cannot Do Indirectly
In his subsequent arguments, Sibal pointed out that the Constitutional Ordinance 2019 stipulates that “Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the present Council of Ministers of State, will interpret as a reference to the ‘Governor’ of Jammu and Kashmir.’ Here he pointed out that there was no council of ministers because the state was under the rule of the president and the council of this state was dissolved in due time. , the union created a ‘myth’ constitution’ and acknowledged that in the absence of a council of ministers, there was a council of ministers, he added-
“The power under 370(1)(d) does not extend to abrogating 370 by applying those three principles. The power under 356 doesn’t extend to making non-restorative permanent alterations to the State’s constitutional status.”
Can Article 356 Be Used To Bring Permanent Changes To the constitutional structure?
Senior Advocate Sibal then voiced apprehensions regarding the misuse of Article 356 and the constitutional implications of the changes introduced in relation to J&K. Speaking passionately before the court, Sibal questioned whether constitutional changes can be made without adequate consultation with the people of J&K, despite an explicit provision requiring such consultation. He asked–
Is there a limit to the emergency power? Or is it unlimited? Can an emergency be passed to make permanent changes? Can the constituent power be equated with ordinary power effacing the source of their authority? Can constitutional change happen without consultation with the people of J&K despite an express provision in that regard?”
He went on to argue that changes to India’s constitutional structure, as applied to J&K through the exercise of majority power, pushed the boundaries of democratic and federal principles. He points to the historical abuse of Section 356 and points out that the provision was never intended to be exploited in the way seen In J&K.
“Time and again in the history of this country 356 has been misused. That was never the intent. And now in changing the structure of this constitution, in its application to J&K, it has crossed all boundaries. Where are the steps for restoration of democracy? In fact, the steps are for the reversal- destruction of democracy. People are not taken into account, their views are not taken into account. You give yourself the power of state, legislature. Parliament becomes the spokesperson of the people of J&K. And if you express the wishes of the J&K through parliament when the constitution requires you to take views of the State. Everything done under 356 is contrary to the basic principles of both federalism and democracy and to the principle of constitutional morality. 356 is not meant for this purpose,” he said.
He then invoked the doctrine of proportionality, indicating that under normal circumstances the dissolution of a parliament would follow a carefully structured process that includes efforts to form government and the exercise of presidential power only as a last resort. He points out that the prolonged absence of representative democracy in J&K raises important constitutional and ethical issues. He submitted-
“When did you dissolve the assembly? 21st November 2018. And we are where? In August 2023. Was that meant to be under 356? So see what they did – they knew that the council of ministers would never advice the governor to dissolve. So he dissolved it on his own. Then the governor imposed 356, took over powers. Ultimately, you are a delegate. 356 delegates you the power of legislature. You’re not an omnipresent omnipotent authority to do what you like. You’re a delegate. What the primary institution cannot do, the delegate cannot do.”
In conclusion, Sibal said-
“We stand at a situation where though the constitution is a political document, its provisions cannot be manipulated or manoeuvred for political ends. That’s not how interpret a constitution. It is a political document but you can misuse it politically. What is a Constitution? It is a set of values. Values on the basis of which people will represent themselves and their voice will be heard. If you threw such executive acts, silenced the voices of people, what is left of democracy? All I can say it is that this is the historic moment, historic not for the present but for the future of India. And I hope this court is not silent.”
In his arguments, Sibal also stated that a State could never be reduced to a Union Territory.
