The Supreme Court on Thursday was told that a procedure unknown to the constitution was followed for the abrogating Article 370 – which had after the adoption of J&K constitution become permanent – and changing the boundaries of the erstwhile state of Jammu and Kashmir without ascertaining the views of the state assembly – representing the will of the people.

Describing the procedure followed for the abrogation of Article 370 and changing the character of the state into two Union Territories as “mosaic of illegalities”, a five-judge constitution bench comprising Chief Justice D Y Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice B R Gavai and Justice Surya Kant was told that the “quintessential essence” of the Article 356 of the constitution is to restore democracy but in the case of J&K it was used to undo democracy and obliterate the State constitution taking recourse to questionable procedure.

It was not a smooth sailing for senior advocate Kapil Sibal on Thursday as there was a spate of questions from the bench particularly by the Chief Justice Chandrachud, Justice Kaul and Justice Sanjiv Khanna. The bench also wanted to know the difference between the reluctant princely States joining the Indian union and the J&K.

Advancing arguments on the second day of the hearing by the five-judge constitution bench, the senior advocate assailing the procedure that was followed said, “There must have been a great constitutional adviser who suggested this complicated course, which does not find way in the constitution which is a mosaic of illegalities fit to be junked.”

Telling the court that what was done by the Central government was a “political act” without any legal and constitutional sanction, Kapil Sibal said by taking recourse to Article 356, the office of governor got merged in the President and the J&K legislature in the parliament, then parliament after abrogating Article 370, gave consent to its own act though its incarnation as State legislature.

Describing it as a “partisan political” act, Sibal told the bench, “They (Central government) did what they wanted to do by circumventing the constitution. They could not have taken recourse to Article 368 of the constitution as it required the presence of two-third of the members (of parliament) present and voting. That is why they adopted this recourse. If you were to work under the constitution, then you have to follow what the constitution says. It is a partisan political measure that was carried out by the government.”

Referring to the provisions of J&K constitution that mandate the concurrence of the State legislature for doing many things including obliterating Article 370 and changing the character and the boundaries of the State, Sibal said, “Instead of clapping with one hand they were clapping with one.”

Taking the court through the chronology of the events starting with June 19, 2018 when BJP withdrew its support to Mahbooba Mufti led PDP government, very next day Governor Satpal Malik issued proclamation taking over the power and functions if the government, without even waiting for an alternate combination staking claim to power, Sibal said, “It was purely a political act, Central government in tandem with Governor acted politically.”

Referring to the provisions of the J&K constitution, Sibal said that except for Article 36, 38 and 92, the Governor was obliged to act on the aid and advice of the Council of Ministers (CoM). He said that Article 92 of the J&K constitution was unique as it vested in Governor power to dissolve the State assembly without the aid and advice of CoM.

Touching on another aspect, Sibal said that parliament acted as a constituent assembly, which it could not have, while abrogating Article 370 that makes J&K an integral part of India. He said that constituent assembly is a political prioress that decides on the political setup and how the country would be governed, whereas parliament acts within the constitution.

“If you in principle say that Parliament can convert itself into a constituent assembly which is political prices to decide what kind of structure of governance people need. I am concerned with our future. Indian constitution is an amalgamation of diverse colours that India is. The constituent power to amend the constitution is itself a political power. But it has to act within the framework of the constitution.” Sibal told the bench making distinction between the parliament and the constituent assembly and stating that in case of the abrogation of Article 370 and the bifurcation of State, its exercise of power was flawed.

Sibal once again insisted that though initially Article 370 was a temporary provision but after the adoption of J&K constitution it became a permanent feature – a position with which the bench differed.

Quizzing Sibal, the bench asked are you suggesting that Article 370 was a distinct category outside the provisions that forms part of the basic structure of the constitution which cannot be touched.

Justice Kaul said, “Whether Article 370 acquired a permanent feature is debatable. The question is whether, while abrogating Article 370, the procedure for doing so was followed or not.”

The constitution bench is hearing a batch of petitions challenging the scrapping of Article 370 of the constitution and bifurcating the state into two Union Territories.

On August 5, 2019, the Central government announced the revocation of the special status of Jammu and Kashmir granted under Article 370 and split the region into two Union territories.

Besides individual petitioner who have approached the top court on the abrogation of Article 370 and the bifurcation of the State reducing it to a Union Territory, other petitioners include Jammu and Kashmir Peoples Conference, Jammu and Kashmir High Court Bar Association, Peoples Union for Civil Liberties, and the We4st Pakistan Refugees Action Committee Cell – 1947.

Sibal will resume his arguments on August 8 – the next date when the constitution bench will assemble. The constitution bench will hold hearings on three days of week – Tuesday, Wednesday and Thursday. Monday and Friday will be devoted to fresh matters and other miscellaneous matters.