The Supreme Court on Tuesday was told that the process followed for the abrogation of Article 370 was a fraud on the constitution by which a political decision was taken by the government to enforce an amendment under Article 367 to erase the Article that conferred special status to Jammu and Kashmir.
The apex court was also told that any silence on its part would have disastrous consequences for the democracy and the country.
“The way entire thing was gone was a fraud on the constitution. Taking recourse to the Executive powers – a politically motivated, political decision – to amend the constitution by amending Art 367 and then terminating a constitutional provision Art. 370,” senior advocate Kapil Sibal told 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.
Sibal, on the third day of his arguments, which he concluded today, told the bench, “The constitution is a political document and you cannot misuse, manipulate and manoeuvre it to achieve the political ends. That can’t be done. The constitution is a set of values.”
Pointing to the dangers of such misuse, manipulation and manoeuvre of the constitution for political ends, Sibal said, “Courts cannot be silent. Whenever courts have been silent, the consequences were disastrous.”
The senior advocate said the same instrumentality could be used in other states such as Madhya Pradesh and Bihar which could be transformed into Union Territory.
Taking the constitution bench through the provisions of the Indian constitution, constitution of J&K, speeches of late J&K chief Minister Sheikh Abdullah and late Deputy Chief Minister Mirza Mohammad Afzal Beg in the J&K constituent assembly, Sibal said the people of J&K are central to the decision impacting the State and it could not have been done without their concurrence.
Recalling the sequence of events leading to the abrogation of Article 370 and the bifurcation of J&K into two Union Territories, Sibal said that on June 19, 2018 BJP pulls out from the PDP-BJP coalition government led by Chief Minister Mehbooba Mufti’s government, June 20, Governor Satpal Malik puts assembly under suspended animation and on December 21 the assembly is dissolved.
He said thereafter the governor assumed the powers of assembly and same got merged in the parliament and the parliament while abrogating Article 370, also acted as J&K assembly giving its consent. He said by a government action they take away the provision, mandating consent of the people through their representative institutions for any change in the constitutional architect of the State.
Flagging the majoritarian approach of the government sans observance of the constitutional provisions, Sibal said this process could be replicated in any other state in the country and may be tomorrow Bihar and Madhya Pradesh could be transformed into Union Territories. He said that the entire country could be transformed into UTs with a Presidential form of government.
In response to a number of posers from the bench, he said that the integration of J&K was founded on the provisions of the Indian constitution, J&K constitution and Article 370 – which attained a permanent feature after the adoption of J&K constitution, governor could not have dissolved the State assembly without the aid and advise of the Council of Ministers and no change in J&K integration and relationship with India could have been altered without taking the consent of the people represented through their democratic institutions.
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 West Pakistan Refugees Action Committee Cell – 1947.
Hearing will continue on Wednesday (August 9) when former Solicitor General Gopal Subramanium will address the court relating to the bifurcation of erstwhile State of J&K into two UTs – Jammu & Kashmir and Ladakh. He told the bench that he will be broadly advancing arguments to cement what has been argued by Sibal. He has been given time to wrap up his arguments by 01.00 pm – the lunch break.