New Delhi: The bifurcation of the erstwhile state of Jammu and Kashmir into two Union Territories (UT) was contrary to all “principles of representatives form of government and fundamentals of constitutional democracy,” the Supreme Court was told Tuesday.
Senior advocate Kapil Sibal, arguing for one of the petitioners — Jammu and Kashmir National Conference (JKNC) leader Mohammad Lone — who have challenged the abrogation of Article 370 and subsequent division of the state into two UTs in the apex court, said there is no power under the Constitution that allows the Centre to extinguish a state.
He made his submissions before a constitution bench led by Chief Justice of India (CJI) D.Y. Chandrachud. During the hearing, CJI Chandrachud also praised J&K’s first elected Prime Minister, Sheikh Mohammad Abdullah, for his foresightedness. The CJI intervened when Sibal left out some portions of Abdullah’s speech in the constituent assembly, while giving a historical background to Article 370.
“Sheikh Mohammad Abdullah had a vision in 1951 which the world is talking about today,” he remarked. Calling him a visionary, the CJI pointed out how Abdullah had called out Pakistan’s claim of being a Muslim state, saying it is only a “camouflage”.
“….it’s a screen to dupe the common man so that he cannot see clearly that Pakistan is a feudal state in which a clique is trying by these methods to maintain itself in power,” the speech had said, the CJI added.
Praising Sheikh Abdullah, CJI asked Sibal to look at his foresight. “He had a vision in 1951 when he was speaking about economic interests which the world is talking about today,” said the CJI, highlighting the part of the speech in which Abdullah had made his choice to remain a part of India very clear.
While arguing against the abrogation of Article 370, Sibal gave the example of Brexit, where a referendum was held to decide on UK’s exit from the European Union. “[If] you want to sever a relationship which has been entered into, you must seek the opinion of the people,” said Sibal.
CJI Chandrachud, however, differed with Sibal’s view and said in a constitutional democracy such as India, public opinion has to be sought through established institutions. “Any recourse to public will has to be through that. You cannot envisage a situation like BREXIT. In a constitutional democracy, there cannot be anything like a referendum,” the CJI said.
Sibal, who concluded his arguments Tuesday, also said, “A state can include a UT or a UT can be carved out of a state. By what stretch of imagination you move away from a representative form of government.”
He further assailed the move to have two UTs by saying that neither does the text of the Constitution allow the government to do that nor do the fundamentals of constitutional democracy permit it.
The Constitution, Sibal added, is a set of values on the basis of which people represent themselves so that their voices can be heard. Therefore, when there is a clash of arms, the law and the court is never silent. “And, whenever the court has been silent, the consequences have been disastrous,” Sibal said.
Constitutional power does not extend to effacing a state into a UT, he argued, saying “The court is dealing with momentous change brought about by an exercise of majoritarian executive power”.
Earlier, Sibal attacked the central government for invoking Article 356, which is done to impose Presidential Rule, in the case of J&K. He said it cannot be used to make permanent and irreversible constitutional changes.
President Rule under Article 356 was imposed in J&K on 19 December, 2018, months before the abrogation of Article 370 happened in August 2019. The same day, 5 August 2019, the state was bifurcated into the two UTs of J&K and Ladakh.
Before making this move, the Bharatiya Janata Party (BJP) had withdrawn its support from the Jammu and Kashmir Peoples Democratic Party (PDP)-BJP coalition, leading the state to fall under the Governor’s rule. After the end of six months of Governor’s rule, J&K was brought under the President’s Rule in December 2018 and it was further extended for another six months on 3 July, 2019.
The Constitution Bench will continue to hear the case Wednesday.
Also read: ‘Won’t shut out anyone’: SC to hear pleas challenging Article 370 abrogation from 2 August
‘All limits crossed’
Sibal wondered if the power envisaged in Article 356 is unlimited and can be used to make permanent constitutional changes, as was done in the case of J&K.
“In changing the structure of this Constitution, as applicable to J&K, all limits have been crossed,” Sibal said, recounting the sequence of events. He said the governor dissolved the assembly without the aid and advice of the council of ministers, since there was none, which is not legal.
“A governor is not an omnipresent or omnipotent authority to do what you like,” the senior counsel said.
In normal circumstances dissolution would never have happened, Sibal explained. According to him, first the assembly would have been suspended then attempts would have been made to form the government. When you realise nothing is possible then you dissolve the assembly, he said.
All steps leading to the abrogation and creation of two UTs were contrary to democracy. “You arrogate to yourself the power of the state and legislature. Parliament becomes the spokesperson for people of J&K,” Sibal told the court, contending, “Incremental steps are to be taken under Article 356.
The “downgrading of a state to a UT” has silenced the “voice of representative democracy” said Sibal, and five years have passed since it was done. Adding a word of caution, the senior counsel said, “This way the whole of India can be converted.”
Sibal asserted that in the case of J&K, it was imperative to take consent. “[The] Constitution is a political document, but its provisions cannot be manoeuvred or manipulated for police use,” Sibal said, hoping the top court would not remain silent towards the executive acts that have “silenced the voice of people”.
(Edited by Poulomi Banerjee)
Also read: Abrogation of Article 370 ‘death of democracy as it was done without consent of state’: Digvijaya