Arguments of Sr. Adv. Kapil Sibal in Art. 370 case before Constitution Bench- Part-III
CHIEF JUSTICE DY CHANDRACHUD: But, Mr. Sibal, we have to freeze submissions at some point, because it creates such a problem for us when we have to start putting things together for the judgment.
KAPIL SIBAL: I understand that, My Lord. What happened in our conversations and the dialogue the other day, My Lords, I just wanted to clarify some issues. That's why. OtherwiseMy Lords I...
JUSTICE SANJAY KISHAN KAUL: Sibal, the problem has been, in the last ConstitutionBench also I found, thousands of pages were dumped almost on the last second day.It becomes impossible to formulate our.... We have to formulate a judgment. If we don't know where a person is starting, where a person is going, how will it....
KAPIL SIBAL: No, I'm not saying no, My Lords. The problem is, sometimes when the formulations happen at the beginning of a hearing, as the hearing proceeds My Lords, there are nuances that need to be addressed. That's all My Lords, not for any other reason. I appreciate what My Lord is saying. I'm sorry for that. ....and the supplementary submissionsMy Lord, if Your Lordships be kind enough to turn to that? I invite My Lord's attention to page70. I've sent it.
RESPONDENT'S COUNSEL: Send again.
KAPIL SIBAL: I'm sorry. Lordship has it?
CHIEF JUSTICE DY CHANDRACHUD: ... Mr. Sibal?
KAPIL SIBAL: My Lords, it is combined with the earlier submissions.
CHIEF JUSTICE DY CHANDRACHUD: So these are now the updated submissions?
KAPIL SIBAL: That's right.
CHIEF JUSTICE DY CHANDRACHUD: So, we don't look at the earlier submissions?
KAPIL SIBAL: There is no other. It's a running page now, My Lords.
CHIEF JUSTICE DY CHANDRACHUD: Our concern is this, if we allow these submissions, each one of the other counsels, on your side and on the other side, will do this, give us. So, at the end of it, we will have about or additional submissions. And I can just tell you, we were just discussing, and this is not a secret. When it comes to writing a judgment....for instance, we are in the midst of now seeing, which way to... what to decide in the same sex marriage equality, which was argued. With the additional submissions, submissions in rejoinder, surrejoinder, when you actually sit down to open a matter for judgment, it becomes just impossible to... for so many to...
KAPIL SIBAL: No doubt about it.
JUSTICE SANJAY KISHAN KAUL: Mr. Sibal, we had clearly put it down, that we will not accept submissions beyond a particular date. It will be violation of Article if we permit you to do it and not permit the others to do it.
KAPIL SIBAL: Alright My Lords. I'll make oral submissions on that.
JUSTICE SANJAY KISHAN KAUL: See we've marked those submissions. See, the problem is we've also marked those submissions which were made earlier.
KAPIL SIBAL: I appreciate.
JUSTICE SANJAY KISHAN KAUL: Now consolidation. Let us go by that submission,which was earlier made.
KAPIL SIBAL: Your Lordships....
CHIEF JUSTICE DY CHANDRACHUD: But most of them would be an elaboration of what you have argued you can tell us orally
JUSTICE SANJAY KISHAN KAUL: We have been taking notes where we have put questions. We have come up with some answers. We have also been taking notes.
KAPIL SIBAL: Let me, My Lords not waste Your Lordship's time on it. I'm telling Your Lordships, what has happened? Number one, My Lords, there are some speeches made in the J&K Constituent Assembly, which were not part of the original. So I wanted to just cite those My Lords. That's part of it.
CHIEF JUSTICE DY CHANDRACHUD: No. But even those now have to be part of the document compilation just frozen, with so much of research by lawyers I am sure nobody would have missed those.
KAPIL SIBAL: It is there, it is there My Lords. It's there. It's in the document.
CHIEF JUSTICE DY CHANDRACHUD: But then refer to it in the documents. No difficulty.
JUSTICE SANJAY KISHAN KAUL: Sibal what we got is frozen as when we began the hearing.
KAPIL SIBAL: Very well.
CHIEF JUSTICE DY CHANDRACHUD: Documents you can show us certainly. No difficulty.
KAPIL SIBAL: Doesn't matter. I'll show the document.
JUSTICE SANJAY KISHAN KAUL: Whatever they are.
CHIEF JUSTICE DY CHANDRACHUD: Whatever documents on the record refer to that.
JUSTICE SANJAY KISHAN KAUL: We have no problem.
1CHIEF JUSTICE DY CHANDRACHUD: We will see those. Somebody would have filed them.
KAPIL SIBAL: Yes, yes. We filed them My Lords. Volume My Lords. Volume 7. PDF page102. VolumeMy Lords. PDF page 101. This is Sheikh Abdullah's speech, My Lords, which is a part of the document. I just wanted to...
CHIEF JUSTICE DY CHANDRACHUD: Volume 7, page 136. That's Volume 7, page 1.
KAPIL SIBAL: Volume 7, yes. But the relevant part of Sheikh Abdullah's speech is at page101. PDF 101.
JUSTICE SANJAY KISHAN KAUL: 101?
KAPIL SIBAL: Yes. In the submissions, I have just put those paragraphs so that it doesn't waste time. But anyways, My Lords, I'll refer to that. It's not in addition to anything.
JUSTICE SANJIV KHANNA: That's 1460?
KAPIL SIBAL: 1460. That's absolutely right.
CHIEF JUSTICE DY CHANDRACHUD: What is the date of the speech of Sheikh Abdullah?
KAPIL SIBAL: I'll just give that to Your Lordship.
CHIEF JUSTICE DY CHANDRACHUD: This is in the Constituent Assembly. The J&K Constituent Assembly.
KAPIL SIBAL: Yes. 5th November 1951. I'm not adding anything new My Lords. I just...because I didn't want Your Lordships' time to be wasted. So I only pointed those paragraphs.There's nothing new in these submissions. That's all. If I....
CHIEF JUSTICE DY CHANDRACHUD: The agony of this change.... The agony of this change....
KAPIL SIBAL: Yes. 'The agony of this changeover became all the more intense as a result of the position in which the Indian States were left under the Indian Independence Act of the British Parliament. The paramountcy of British Crown against which the Princes had been learning lapsed' - leaning, it should be -'lapsed, and it was made clear that it would not be transferred to either of the succeeding dominions. There were three alternative courses open to them. They could accede to either of the two dominions or remain independent. This gave the Prince himself the option to decide the fate of their States. Following the announcement of Mountbatten planned on June 3, some of the Indian States acceded to Pakistan, and some to India by means of Instruments of Accession executed through their princes. There were also some who entered into standstill agreements with either or both pending finalization of their decisions. The betrayal of the interests of the state’s people had been expected following the rejections of the memorandum of the National Conference and we in Kashmir, decided to place the issue before the people themselves. This is how our well-known 'Quit Kashmir Agitation'began. The National Conference once led the people through a great struggle and once again the ruler tried to curb it this time with unprecedented severity. But when the whole people isone, and the move...and they move...and the move it is not possible to repress them, and they do not stop until they rest freedom and justice for themselves from the unwilling hands of those above them. The crucial date of India and Pakistan independence, therefore, came whenI and my colleagues were still behind prison bars. The whole subcontinent was in a state ofhigh tension and disturbance. If at that time the head of the state of Jammu & Kashmir had even the slightest sense of realism or a proper awareness of the danger lurking in the situation,he would have immediately taken the people into confidence. By associating theirrepresentatives with administration, I am sure many of the compilations that… complicationsit should be… that arose later, could have been avoided. Instead of that, the Maharajagovernment entered into a 'standstill agreement', with Pakistan, and this was accepted withoutquestion by that dominion. Now the next is important, 'a similar arrangement was suggestedto India also, but it is noteworthy that the Government of India insisted that it could notconsider any agreement entered into by the Government of the State valid, until it hadapproval of the people's representatives. While the leaders consistently refused to recognizethe vital issue of accession without first securing the approval of its people, the Muslim Leaguein Pakistan government supported the claims of the rulers to speak for their state. The late Mr.Jinnah took the position that after lapse of paramountcy, the Princes were completelyindependent and then they could themselves determine what relations they should have withthe two dominions. Throughout the strugglethat the people of Kashmir waged, against autocracy, we should never forget, that the MuslimLeague leadership had completely dissociated itself from them, and that during the upsurgein 1946, their local party organs had assisted the administration to suppress the movement. At this crucial time, when Pakistan was under the cover of secrecy, perfecting its own plans,and the dawn of the Muslim League, official organ in Karachi was appearing to the Maharaja,to a court to accede to Pakistan on the grounds, that he would have great freedom there inIndia. It was at this stage, taking advantage of the isolation of the Kashmiris from the rest ofthe world, that Pakistan imposed an economic blockade upon us, with a view to starving us tosubmission. Attempts were made even to excite communal hatred, to disrupt our peaceful civiclife. Even in the face of such provocations, the National Conference, I'm proud to say, took anobjective and democratic stand. Instead, immediately, on my release from imprisonment, Iclarified the issue of a mass meeting in Srinagar. The first and fundamental issue before uswas the establishment of a 'popular government'. Our objective might be summarized,'freedom first', then alone could free people decide the future associations through accession.I also made it clear that the National Conference would consider this issue without prejudiceto political friends.' So leave that around My Lords. Then, My Lords kindly come to theparagraph, 'The overwhelming pressure of this invasion, brought about a total collapse of thearmed forces of the State, as well as its administrative machinery, leaving the completelydefenceless people at the mercy of invaders. It was not an ordinary type of invasion, in asmuch, as no canons or warfare were observed. The tribes, tribesmen who attacked the state inthousands, killed, burnt, looted, and destroyed whatever came in their way. And this savagery... And in this savagery, no section of the people could escape. Even the nuns and nurses of the Catholic missions were killed or brutally maltreated. Asthese raiders advanced towards Srinagar, the last vestige of authority, which lay in the personof the Maharaja, suddenly disappeared from the capital. This created a strange vacuum, andwould have certainly led the occupation of the whole state by Pakistan troops and tribesmen,if at this supreme hour of crisis, the entire people of Kashmir had not risen, like the solidbarrier against the aggressor. They halted this on-rush, but could not stop it entirely, as thedefendants had not enough experienced training." This is the background on the basis of whichthe accession took place. Then My Lords kindly come to this paragraph. "When the raiders...1463... were last approaching Srinagar, we could think of only one way to save the state fromtotal annihilation, by asking for help from a friendly neighbour. The representative of theNational Conference therefore, flew to Delhi to seek help from the Government of India, butthe absence of any constitutionality between our State of India, made it impossible for her torender us any effective assistance in meeting the aggressor. As I said earlier, India had refusedto sign a standstill agreement with the state from the ground from the ground that he couldnot accept it... accept such an agreement until it had the approval of the people. But now, sincethe people's represented themselves sought an alliance, Government of India showedreadiness to accept it legally. The Instrument of Accession had to be signed by the ruler of the state; this the Maharaja did. While accepting that accession, the Government of India said, that she wished that as soon as law and order has been restored in Kashmir and our soil cleared of invader, the question of the state’s succession should be settled by deference of the people.Actuated by sincere desire to avoid bloodshed and further conflicts, the Government of Indiaapproached the Security Council in 1948 with a plan against Pakistan. The request was simple.The contention of India was, that Pakistan was responsible for the invasion of Kashmir, andwas continuing to help the raiders who had been employed as mercenaries. And it was furthersaid, that legally bound as India was, to clear the Jammu and Kashmir state of raiders, mightbe constrained to pursue the invaders to their basis in Pakistan, which might lead to still biggerconflagration. India therefore, wanted the Security Council to dispose of the case as quickly aspossible in the interest of justice”. That's how the question of plebiscite, My Lords, came beforethe Security Council. Then My Lords, paragraph… this is the essential background which youmust fully take into account. Now I shall indicate some of the considerations, which should bekept in view. When you, the honourable members of the August Assembly, shoulder the graveresponsibility of giving a considered opinion on this issue of accession, which is ex, not onlythe present generation of our people, but generations yet to come. My Lords, now skip thefollowing paragraphs, and then come to My Lords… the real character. My Lords, kindly cometo paragraph, ‘As a realist’, My Lords, that paragraph. “As a realist, I'm conscious that nothingis all black or all white, that there are many facts to each of the propositions before us. I shallfirst speak on the merits and demerits of the state's accession to India. In the final analysis, Iunderstand it, it is the kinship of ideals which determines the strength of ties between twostates. The National Congress is consistently supported the cause of the state's people'sfreedom. The autocratic rule of princes has been away with and representative governmenthave been entrusted with the administration. Steps towards democratization have been taken.And, these have raised the people's standard of living, brought about much needed socialreconstruction, and above all, built up their very independence of spirit. Naturally, if we accedeto India, there is no danger of a revival of feudalism and autocracy. Moreover, during the lastfour years, the Government of India, has never tried to interfere in our internal economy. Theexperience has strengthened our confidence in them as a democratic state. The real characterof a state is revealed in its Constitution. The Indian Constitution, as set before as a country.The goal of secret democracy...” My Lords, we may leave that, leave that out. Then leave theother things out. Then PDF 562. Why is the state...
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: It's on 11th August 1952, soon after the Delhi Agreement in July 1952. And,My Lords, in PDF 562, at 1921, he then explains why the provision is temporary. Here, I wouldlike to point out.... My Lords have that paragraph?
JUSTICE SANJAY KISHAN KAUL: Page?
KAPIL SIBAL: Page 1921, PDF 562.
CHIEF JUSTICE DY CHANDRACHUD: After that actually we were reading at 1… it goeson to about 1466, where he specifically speaks about the importance of the affiliation withIndia and accession to India, because he speaks in terms of, you know… first he speaks aboutthe Indian Constitution. 10KAPIL SIBAL: That's correct.
CHIEF JUSTICE DY CHANDRACHUD: Second, it's very important from a historicalperspective. Sheikh Abdullah refers to the land reforms which were taking place post the FirstAmendment and the other amendments which took place to the Constitution. He saysPakistan, on the other hand, is a feudal State.
KAPIL SIBAL: That's correct.
CHIEF JUSTICE DY CHANDRACHUD: And therefore, our interest would not beprotected in a feudal Pakistan as compared to an India where land reforms were taking place.Then he refers to the fact that India has of course the access to the seas and therefore, a betteras an economic powerhouse for us to carry on trade through the auspices of India. And thisreally continues until PDF page 107.
KAPIL SIBAL: I didn't want to refer to it because, one - It would take too long. Two - MyLords, it's in the background. But we are dealing with a temporary provision.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: That's why I didn't refer to it. But all that is very important. The reason issimple. Ultimately, what did J&K do? The people of J&K gave to themselves the Constitution,just as the people of India gave to ourselves this Constitution. So central to all this is the willof the people and therefore, you'll have to compare it to the...
CHIEF JUSTICE DY CHANDRACHUD: Very interestingly you see how Sheikh Abdullahputs it. He says, "The most powerful argument which can be advanced in a favour is that 1 Pakistan is a Muslim state, and a big majority of our people being Muslim the State mustaccede to Pakistan." But then he says, "This claim of being a Muslim state is of course, only acamouflage which is a screen to dupe the common man, so that he may not see clearly thatPakistan is a feudal State in which a clique is trying by these methods to maintain itself in apower.
KAPIL SIBAL: Absolutely. Your Lordship is right. The point I'm making My Lords,ultimately what's the essence in this matter that Your Lordships are hearing. The will of thepeople of a State, qua the executive act of the Union of India, which decimates the will of thepeople. That's the issue before you. That's what Your Lordship... because all the three... all thethree acts of the Union of India are executive acts. 356 deletes the proviso of Article 3. That'san executive act.
CHIEF JUSTICE DY CHANDRACHUD: Mr Sibal, look at the foresight of the speaker. Hesays, “These days, economic interest and a community of political ideals more appropriatelyinfluenced the policies of State.”
KAPIL SIBAL: Absolutely. Absolutely.
CHIEF JUSTICE DY CHANDRACHUD: He had this vision in 1951 when he was speakingabout the economic interest, which is what the world is talking about today.
KAPIL SIBAL: Absolutely.
CHIEF JUSTICE DY CHANDRACHUD: In a globalized world.
KAPIL SIBAL: And in that situation, the ruler had no choice. Absolutely no choice. So MyLords, the point I was making is that we are now dealing with three executive acts. One, the356. Two, change of interpretation in the definition of Constituent Assembly under 367(1) andthe abrogation. These are all executive acts. The will of the people is not considered at all.That's the question. Can you delete provisions of the Constitution by an executive act? Can youdecimate the Constitution by an executive act? Can you change the Constitution by anexecutive act? We're not talking about legislation here. We're not talking about parliamentarylegislation. That comes after these executive acts, My Lords, are implemented. That's thequestion... you can't change the Constitution of India as applicable to Jammu and Kashmir bydeleting Article 3, the proviso to Article 3. You can't do that through an executive act. You can't 1 change the definition My Lords, of the Legislative.... of the Constituent Assembly as LegislativeAssembly through an executive act. Just then I'll come straight away to the issue 1921.
CHIEF JUSTICE DY CHANDRACHUD: 1921?
KAPIL SIBAL: Yes. PDF, My Lords 562.
JUSTICE SANJAY KISHAN KAUL: Which volume is this, Mr Sibal?
KAPIL SIBAL: Same volume. Same volume.
JUSTICE SANJAY KISHAN KAUL: Volume 7?
KAPIL SIBAL: Yes. Same. Same speech My Lords. Comes a little later. Same speaker, comesa little later My Lords, 11th August is the speech.
JUSTICE B.R. GAVAI: PDF page 562?
KAPIL SIBAL: 562. PDF 562. Sentence starting, My Lords, paragraph starting My Lords,'here I would like to point out'. My Lords have that?
JUSTICE SANJAY KISHAN KAUL: There seems to be some problem.
KAPIL SIBAL: That's correct, that's correct, that's correct. If all My Lords have it, I'll read itMy Lord. 'Here I would like to point out that the fact that Article 370 has been mentioned as atemporary provision, the Constitution does not mean, that it is capable of being abrogated,modified, or replaced, unilaterally.' Kindly mark the words, 'unilaterally', which is exactly whathas happened. 'In actual effect, the temporary nature of this article arises merely from the factthat the power to finalize the constitutional relationship between the State and the Union ofIndia has been specifically vested in the Jammu and Kashmir Constituent Assembly.' That'show, My Lords Parliament understood it in 370, that's how the State understood it. It followsthat. 'whatever modifications, amendments, or exceptions that may become necessary, eitherto Article 370, or any other article in the Constitution of India, in their application to Jammuand Kashmir, are subject to decisions, of this sovereign body. Since a good deal of confusedthinking and uninformed criticism, is indulging us in the interest of.. I would like to point outhere, that the Constitution has confined the scope and jurisdiction of the Union powers, to theterms of the Instrument of Accession with the proviso, that they may be extended to such other matters also, as the President may by order specify with the concurrence of the Jammu andKashmir Constituent Assembly. The special problems facing the State, were thus taken into account and under the Constitution, the relationship approximated to the subsist.... to thatsubsisting under the Instrument of Accession. The Constitution of the Indian Union, thereforeclearly envisaged, the convening of a Constituent Assembly, for the State of Jammu andKashmir, which would be finally competent to determine the ultimate position of the State inrespect of the sphere of its accession, which would be incorporated as in the shape ofpermanent provisions of the Constitution. This briefly, is the position which the Constitutionof India has accorded to our State. I would like to make it clear, that any suggestions of alteringarbitrarily the basis of our relationship with India, would not only constitute a breach of thespirit and letter of the Constitution, but it may invite serious consequences for a harmoniousassociation of our State with India. The formula evolved with the agreement of the twogovernments remains as valid, to date, as it was when the Constitution was framed and reasonsadvanced to have this basis changed seem completely devoid of [UNCLEAR]. In arriving thisarrangement, the main consideration before our government was to secure a position for theState, which would be consistent with the requirements of maximum autonomy to the localorgans of State power, which are the ultimate source of authority in the State, whiledischarging obligations as a unit of the Federation. Then My Lords, kindly come, PDF 648. This is Mir Qasim's statement, on 10th November1952. And this is exactly what I have been submitting before Your Lordships from day one. Aunilateral executive decision cannot term... change the terms of a relationship, which areconstitutionally embedded in Article 370. My Lords PDF 648, page 2007. This speech wasgiven by Mir Qasim, on 10th of November, 1952. In the statement of the Sheikh, My Lords,that discussion on his statement continues. My Lords, in the middle of that paragraph,starting, it is said that the accession of Kashmir with India should be, as far the statement isconcerned, there can be no denying the fact that it should not be a dynamic… dynamic, in thesense that we give up our principles. On the contrary, accession should help us in achievingideals and preserving our autonomy, except of course, in the objects we handed over to India.Our assembly is competent to make laws and decide the issues, if any, since we are enjoyingcomplete autonomy. We can even frame and amend our Constitution. In this collection, wehave application… ‘connection’ it should be… the Application Order of 1950 of the IndianConstitution. According to this order, all these powers do not vest in the state. Now the next isimportant. We want to develop Kashmir according to the programme of New Kashmir. Somepeople say that it is just possible, that in future, Kashmir may also become a part of India, likeany other state, and get merged with it. In that case, our eternal economy will be reduced tonaught, and residual powers would be snatched from us. In this connection, I will submit, that the thinking of such people is morbid. These are the vested interests which create suchmisunderstandings. The representatives of the Government of India have not kept any timelimit for these residuary powers. This is important. That's why, My Lords, 370 talks aboutInstrument of Accession and the items, and items in the concurrent list, but doesn't talk of list, which is the residuary powers of the state. Therefore, there should be no room for suchdoubts. We have acceded to India with a definite objective, and I am sure, the objective will beachieved. Some interested persons are creating misgivings as regards the autonomy and saythat Kashmir has been granted autonomy simply to benefit its Muslim population, but this isa baseless allegation. If the people from outside are not given the right of acquiring propertyin this state and getting recruited to state services, then it was not the Muslims of this placealone would get benefited, but all communities will also get benefited. Then, My Lords, kindlycome to… My Lords, the social system which would be set up according to the program in New Kashmir, will provide equal opportunities of development to all citizens of the state, whetherthe Kashmiris, Ladakhis or Dogras. Now My Lords, let's skip the rest. PDF page 694, now, MyLords.
CHIEF JUSTICE DY CHANDRACHUD: Formulate. Now that we have seen the speeches,we'd like to formulate the principle which…
KAPIL SIBAL: The principle is, My Lords, that an executive act of the Union of India cannot alter unilaterally. Unilaterally… provisions of the Constitution of India, as applicable to theState of Jammu and Kashmir. That’s the central…
CHIEF JUSTICE DY CHANDRACHUD: Cannot alter unilaterally, the provisions of the Constitution...
KAPIL SIBAL: …of India, as applicable to the Jammu and Kashmir, including getting rid ofthe special status given, acceded to by the Union… by the Government of India, and byParliament in enacting 370 of the Constitution. That's the submission.
JUSTICE SANJAY KISHAN KAUL: You're saying, this is an executive act?
KAPIL SIBAL: I'll say 356 is executive, 367, definition is executive. These are all executiveacts. Parliament came into the picture when the changes had already been done throughexecutive acts. We're challenging that.
JUSTICE SANJAY KISHAN KAUL: As you argued, the process was wrong, whatever wasdone.
KAPIL SIBAL: Yes.
JUSTICE SANJAY KISHAN KAUL: But this is… the Parliament did it.
KAPIL SIBAL: No, Parliament according approval to the executive acts which unilaterallychanged the Constitution as it was applicable to the State of Jammu and Kashmir. That's thecentral question that Your Lordships will have to decide. Could Parliament… could the Unionof India have done it?
JUSTICE B.R. GAVAI: Is it your case that the Parliament could have done it?
KAPIL SIBAL: No, not at all. My Lords, let me… that also I will answer. My Lords, kindly see ultimately this was a political decision taken in the context of the situation then prevailing.Right? And the complete abrogation of Article 370 must also be a political decision. My Lords,Your Lordships will remember Brexit, what happened? In Brexit what happened? There was no constitutional provision say seeking a referendum. But when you want to sever arelationship which has been entered into, you must ultimately seek the opinion of the peoplebecause people are central to this decision, not the Union of India. It goes counter to the verygrain of Article 370.
CHIEF JUSTICE DY CHANDRACHUD: But Mr Sibal in a Constitutional democracy,seeking the opinion of the people has to be through established institutions,
KAPIL SIBAL: Agree.
CHIEF JUSTICE DY CHANDRACHUD: Right? So long as a democracy exists as it doesin terms of a Constitutional democracy, any recourse to the will of the people has to beexpressed and sought in terms of established institutions.
KAPIL SIBAL: I agree. Either I should do it...
CHIEF JUSTICE DY CHANDRACHUD: You cannot envisage therefore a situation likeBrexit, a Brexit type referendum. That's a political decision which was taken by the thenGovernment. But within a Constitution like ours, there is no question of a referendum.
KAPIL SIBAL: But My Lords, this is political decision that they have taken by unilaterally through an executive order changing definitions. This is not some Constitutional decision.That's what Your Lordships...supposing Your Lordships were to say that they can change thedefinition or Your Lordships were to say that...
CHIEF JUSTICE DY CHANDRACHUD: But therefore, the ultimate question is whetherthe Constitution does or does not entrust that authority. 9KAPIL SIBAL: That's correct. That's all thatI'm asking My Lords.I'm not asking for anythingmore.
JUSTICE SANJAY KISHAN KAUL: Which in turn depends on whether 370 is construed,as you say, a permanent feature irrespective of the terminology used, because that is in thecontext of the changes till the Constituent Assembly was there, or is it something which iscapable of being....
KAPIL SIBAL: My Lords let me... That's a much higher level to which.... I'm not in factarguing that today. My Lords, whether it is permanent or it is temporary, let's forget about it.The central question is, can the Union of India in this manner determine and terminate thatrelationship that is constitutionally recognized in Article 370.
JUSTICE SANJAY KISHAN KAUL: We understand.
KAPIL SIBAL: It may not be permanent. That's either... it may be permanent. It may not be.You may change it. You may...
JUSTICE SANJAY KISHAN KAUL: I said in the context that you... that was the argumentearlier. So we have come to the next argument, which is the manner in which it is done isflawed according to you.
KAPIL SIBAL: Absolutely. Absolutely. It's a flawed on the Constitution itself, according tome. It is politically motivated. It is a political act. These executive orders are political acts.They're not constitutional acts. That's my submission. And My Lords is whether it is apermanent feature or a temporary feature is really at the moment not an issue. The reason whyit's not an issue is maybe there is a constitutional way of doing this. I'm not addressing that. Nor have they resorted to that constitutional methodology. If they resort to it, it will be testedin a court.
CHIEF JUSTICE DY CHANDRACHUD: And on the process. You said last time that first,the Section 92, power was vested the Governor, independent of the Council of Ministers.
KAPIL SIBAL: 36, 38.
CHIEF JUSTICE DY CHANDRACHUD: Right. Step 2, the Legislative Assembly isdissolved by the Governor under Section 53 without aid and advice. Three, the proclamationis issued under Article 356. You said that the object of the proclamation on the 356 toeventually restore democracy. 13KAPIL SIBAL: That's right.
CHIEF JUSTICE DY CHANDRACHUD: And not the decimation of democracy. And thenfinally, we saw the amendment of Article 3, in the presidential notification.
KAPIL SIBAL: That's right. That's also an executive act.
CHIEF JUSTICE DY CHANDRACHUD: All these four steps, according to you were constitutionally flawed. There was no provision for these four steps because you've essentially taken away the powers of the State Assembly and exercised them under the garb of 356. That's the submission.
KAPIL SIBAL: That's right. I'm deeply obliged to Your Lordship. My Lords, I just want to read one other...
CHIEF JUSTICE DY CHANDRACHUD: Only last thing I wanted to ask you. You've made your point on the process which was followed, they will have to answer it. On the proviso to Clause of 370, is there something ultimately that happened in the Constituent Assembly,which sheds light on which way the Constituent Assembly was inclined to go? Because, we are reading individual speeches. What happens thereafter at the end of this process in 1957?
KAPIL SIBAL: My Lords, Constitution was adopted in 1957 by the Legislature of Jammu and Kashmir. Between 1951 and 1957, they could have determined or terminated the essence of Article 370, abrogated it, themselves, and said, we don't want, there's no need for this Constitution, we want to be a State, a part of India, like any other State. That is why 370, Sub2 Article 3, referred to the decision of the Constituent Assembly. That decision could have beentaken. But My Lord asked me the question, well, now that there is no Constituent Assembly,how will this happen? If it were deemed to be a temporary provision. That's what my Lord putto me.
CHIEF JUSTICE DY CHANDRACHUD: So your argument would be really, I mean if youare.... if I can put it that way, that the proceedings in the Constituent Assembly of the State ofJammu and Kashmir would indicate, a reaffirmation of the arrangement under Article 370 asa long term arrangement..
KAPIL SIBAL: That's right.
CHIEF JUSTICE DY CHANDRACHUD: So that (a) the three options that SheikhAbdullah spoke about, namely, either of joining Pakistan, acceding to India, or remainingindependent. They gave up the first and the third option. They decided that the ultimatedecision was to stay within the dominion of India, but subject to the safeguards of 370 andtherefore according to you 370 assumes a permanent character, irrespective of the nature ofthe provision, which is envisaged in the Indian Constitution.
KAPIL SIBAL: And that's what Sheikh Abdullah said in his speech that look, this relation...
CHIEF JUSTICE DY CHANDRACHUD: That still begs one question..
KAPIL SIBAL: Yeah.
CHIEF JUSTICE DY CHANDRACHUD: ..as to whether it was enough that the Jammuand Kashmir Constituent Assembly proceeded on that basis. Could 370, which was envisagedto be a temporary provision, be converted into a permanent provision, merely by theproceedings of the J&K Assembly or was there some further act required from the IndianConstitution, either in the form of a Constitutional Amendment, by virtue of which 370 wouldcease to have a temporary character but have a permanent character, in implementation of thewishes of the Jammu and Kashmir Constituent Assembly?
KAPIL SIBAL: My Lords, Government of India never expressed a contrary opinion,throughout.
CHIEF JUSTICE DY CHANDRACHUD: But didn't it have to take place through a processof amending the Indian Constitution itself...
KAPIL SIBAL: No.
CHIEF JUSTICE DY CHANDRACHUD: ....to convert the character of 370? 7KAPIL SIBAL: Alright. Now, Your Lordships are again going back on the issue of temporarynature. That temporary nature is not part of the Article 370. It's not part of...it's not a part of370 My Lords. In fact, Muzaffar Baig says, we didn't even know about it. That's why I want toread Muzaffar...
CHIEF JUSTICE DY CHANDRACHUD: Mr Sibal, there are two ways that we could reallylead into this discussion. One, that though placed in Part 21, Article 370 was never intendedto be a temporary provision. That's one. That's one layer of reasoning, which is what you areadvancing. Two, that though it was temporary, the reason why it was placed in a temporaryprovision of the Constitution was, pending the decision of the Constituent Assembly of Jammuand Kashmir, and therefore it was given the character of a temporary provision. Because the views of the Constituent Assembly of J&K was still to be elicited.
KAPIL SIBAL: Right.
CHIEF JUSTICE DY CHANDRACHUD: Third, the… that's the second argument. Weaccept that for the purpose of hypothesis. The difficulty of course, which we have to face is this:assuming that that was why it was placed as a temporary provision, because the views of theJ&K Constituent Assembly was still to be elicited. And we also take your point, that the J&KConstituent Assembly decided to accede to India and reaffirm the accession to India, subjectto the safeguards of Article 370. Is that sufficient itself, sufficient in itself, to convert 370 intoan unamendable or untouchable provision?
KAPIL SIBAL: Let me assume, My Lords that it is....
CHIEF JUSTICE DY CHANDRACHUD: Or was something more required by aparliamentary intervention in India, post-independence, to convert that which was essentiallytemporary into a permanent provision?
KAPIL SIBAL: Let's assume My Lords, that it is amendable, for the sake of argument. ThenMy Lords, how is it to be amended? The Constitution must provide a solution no My Lords?I'll assume My Lords for the moment that it is amendable. Then how does the Constitution...the Constitution of India must provide a solution for that.
CHIEF JUSTICE DY CHANDRACHUD: Once we concede Mr. Sibal that... concede in thesense...for the purpose of the...we're not putting anything in your mouth...not at all...don'tmisunderstand that. Once we accept the fact that 370 is subject to the amending power under368, when equally 370 provides for a modality through which 370 itself would come to anend...
KAPIL SIBAL: Let's see 370 then My Lords. Let's see what modality is. That modality can'tbe to convert a Legislative Assembly into a Constituent Assembly by definition, through anExecutive Act under 367(1). Then, My Lords, we have to find the modality within theConstitution, not outside it. Not vested in an executive part of the Union. That cannot be. So,if Your Lordship puts to me, and rightly, that something more had to be done under theConstitution of India, we'd like to know what is that something more?
CHIEF JUSTICE DY CHANDRACHUD: But 370(3), it says, specifies the conditions inwhich the abrogation can take place.
KAPIL SIBAL: Which is, the Constituent Assembly must… It must be on therecommendation of the Constituent Assembly, so it gives the solution. That is in line with thefederated nature of this provision. This is complete federation, My Lords. We are quasi federalqua other states. But, these are purely federal qua Jammu and Kashmir, because the residuarypower vests, My Lords, in the state. So, if you say My Lords at C-70, Sub-Articleprovidesthat solution, that is provided, certainly, but upon the recommendation of the ConstituentAssembly.
CHIEF JUSTICE DY CHANDRACHUD: And therefore, according to you, the power iscompletely lost once the J&K Constituent Assembly comes to an end.
KAPIL SIBAL: Let me even not go that far. I'll assume that there is some power available. Itmay be 368. Let's say, it's hypothetical. We're not concerned with it.
JUSTICE SANJIV KHANNA: No, Mr. Sibal, when you argue, then we'll have to take one.360 is power to amend the Constitution, that's certainly there. Now, when we look at 370, 1 Clause 3, now, the issue would be whether 368 power is still available to amend theConstitution?
KAPIL SIBAL: Your Lordships is not concerned with it in this matter.
CHIEF JUSTICE DY CHANDRACHUD: No, it is. It is very crucial. Because, once weaccept the fact that Parliament, as a sovereign lawmaking body, has the power to amendeverything, including 368… sorry, including 370, then any amendment of 370 may be subjectto criticism on the ground of morality, but not power.
KAPIL SIBAL: No, but it's not a natural…
CHIEF JUSTICE DY CHANDRACHUD: Maybe it’s a political argument, but it's not anargument of constitutional power.
KAPIL SIBAL: This is not actioned under 368. Your Lordships are not going tohypothetically say this is an action under 368, when 360 has not been invoked.
CHIEF JUSTICE DY CHANDRACHUD: But then likewise, the exercise of power under370(3), can it not be then criticized? It is a question of criticizing it as a political criticism. But,is it an argument of the absence of power?
KAPIL SIBAL: Where is that in 370, that power?
CHIEF JUSTICE DY CHANDRACHUD: The court is concerned with either the existenceor the absence of power, right?
KAPIL SIBAL: Not that I should ask Your Lordships, where is that power in 370, that saysthat 368 that you can do it under 360?
JUSTICE SANJIV KHANNA: No, 368 is the power to amend the Constitution.
KAPIL SIBAL: My Lords, we are not… are we concerned with that here? I’m sorry, My Lords,you require two-thirds. You were present…
CHIEF JUSTICE DY CHANDRACHUD: But there are independent avenues. You have thepower to amend, you have the power within 370 to abrogate.
KAPIL SIBAL: But My Lords, in that independent… have you must conform to theprovisions of the Constitution? And independent avenue dehors the provisions of theConstitution, is no avenue at all.
JUSTICE SANJIV KHANNA: Mr Sibal, for the time being, if we ignore proviso to Clause3. In fact, Clauseitself, independent of the proviso, gives the power to the President itself toabrogate 370. If we forget about the proviso.
KAPIL SIBAL: I’m sorry to say that. My Lord, I’m really sorry. Where is the proviso?
JUSTICE SANJIV KHANNA: Just read it once again. Just read it once again.
KAPIL SIBAL: You can’t exercise that power without the proviso.
JUSTICE SANJIV KHANNA: No, proviso is something different. We’re examining theproviso independently. But independent of the proviso…
KAPIL SIBAL: Clause 370 comes into play on the recommendation of the ConstituentAssembly. Your Lordships is putting it the other way around.It comes on the recommendationof the Constituent Assembly, that the President will exercise power, not the other way around.That's why I said, you can't even initiate a bill, Your Lordships will remember that. You can'teven initiate a bill, forget about anything else.
CHIEF JUSTICE DY CHANDRACHUD: Another problem is that, then we would beredrafting the substantive part of Clause 3, to postulate, that the power under the substantiveprovision of Clausecan be exercised, so long as the Constituent Assembly of J&K is inexistence. In which case, will a proviso not swallow up the main provision?
KAPIL SIBAL: But that's what it says, that unless that recommendation is there, you can'texercise your power. President can't exercise power under 370, Sub-Article 3. It says so. MyLords, you’ll have to interpret it on its plain terms, My Lords. And, Your Lordships have saidit not once, but several times over. And it's a provision which, in essence, is a provision offederalism. The heart of federalism is this, My Lord. Yes, it's of course, it's a precondition,there's no doubt about it. I mean, whatever sophistry may happen, can't happen in this way,My Lords. And My Lords, 373 power has been exercised by the Constituent Assembly saying - no recommendation. And I'll come to Your Lordship's a Judgment of Sampat Prakash MyLords, which actually deals with this issue. So let's be clear My Lords.
JUSTICE B. R. GAVAI: Where does the Constituent Assembly specifically says that itdoesn't.... that a .... the Sub-Articlewill not apply to the... it only says that... it only exercisesthree choices. First, as to whether it should accede to the Pakistan or to India, or to remainindependent. Out of three, decided that it will accede to India. But where does it specificallysay that it recommends that Sub-Articlewill not be available.
KAPIL SIBAL: Let me My Lords....let me just...let's go back. Let's go back My Lords to 1950,26th of January. Right? There was no Constituent Assembly. In fact, there was no decision.Originally, it was a National Assembly. There was no decision to convert it through adultsuffrage into a Constituent Assembly. So Parliament, forget about the Government...Parliament, incorporated in 370 the provision for a Constituent Assembly. I asked My Lordsthis question - why? Why did Parliament do that? Parliament did not...parliament... there wasno Constituent Assembly in place. There was only a National Assembly. This must havehappened in collaboration with Jammu and Kashmir. Must have happened My Lords. That'swhy the term Constituent Assembly was included in 370 Sub -Article 3. Now, when they saidin the proviso that it's on the recommendation, there was no Constituent Assembly. So it hadto be a temporary provision. It couldn't be a permanent provision. And the preamble of theConstituent Assembly says to further define the relationship between Jammu and Kashmirand India. So it was temporary because there was nothing in place. It was not temporarybecause this provision had to go. No. And therefore, My Lords, that relationship was to bedecided by the Jammu and Kashmir Constituent Assembly, which had to affirm all laws thathad been passed. Even the laws could not be passed till such time confirmedduring this period by the Constituent Assembly. So the Constituent Assembly actually wasexercising a dual role at that point in time. And the Government of India in 1950, Parliamentrecognized that it is the Constituent Assembly on the recommendation of which 370 will beabrogated. There would have been no Constitution of Jammu and Kashmir, let's put it thatway. There would be no Constitution of Jammu and Kashmir My Lords, if 370 had beenabrogated, it would be yet another State of India.
CHIEF JUSTICE DY CHANDRACHUD: Mr Sibal, you've made your point now. I think,basically as we see that your argument is in three layers. We looked at the background, thehistory. We look at 370 in the background, the Constitutional history, the other history, whichwe saw pre-independence. We interpret 370 therefore in the context of that history. And thenwe've gone to the modalities, which we followed for abrogation, which you have said was 1 unconstitutional. Now after having explored this terrain, which is the next.... how do we nowprogress? 3KAPIL SIBAL: Now we come back to the list of dates My Lords.
CHIEF JUSTICE DY CHANDRACHUD: Right.
KAPIL SIBAL: My Lords, may I with your...? Two minutes I'll take. There is a speech byMuzaffar.... M. A. Baig. Afzal Baig. Just it will take only....
CHIEF JUSTICE DY CHANDRACHUD: Give us the page and the gist of it you can tell us.
KAPIL SIBAL: 694. PDF 694. It's on the temporariness of the Article. That's why I just...that's the last person My Lords... You need not go through it. It refers to the temporary natureof the Article.
CHIEF JUSTICE DY CHANDRACHUD: It would be in the same vein as Mir Qasim'sspeech at 648.
KAPIL SIBAL: And My Lords kindly note this, he was a representative of Jammu andKashmir in India's Constituent Assembly. There were three members total. He was one ofthem. So he was part of the Constituent Assembly of India as well."I said that a good deal of criticism, was levelled in both houses of Parliament of India and inthe outside press in regard to the tension of 370, that it is a temporary article in the specialposition of Kashmir ipso facto is of temporary nature. This raised doubts and suspicions notonly in the minds of the people of the State, but also in the minds of our colleagues sitting inthis House, about our relationship with India and Kashmir, had peculiar position in 1947 thatit has now. That peculiar position is a permanent character of the state. It would be unfair tosay that this position is a temporary nature. Statements have been made that in due course oftime, 370 will cease to exist and Kashmir is bound to become a Part B state. Expressions likethese have in fact given rise to amendments proposed by honourable members to thestatements of the Leader of the House. Some of these amendments are critical and some areunfriendly." And then he goes on to say that, 'we did not even know that there was a note, amarginal note in this regard. This has just come up suddenly. We didn't know that there wasa marginal.... nobody told us there'd be a marginal note. Anyway, My Lords, that's all that hesays. I just wanted to invite My Lord's attention. So, in my supplementary submissions only,I've My Lords, set out these passages, nothing more than that. And last, so long as it is not 1 completed, Article 370 will remain there. And when it reaches completion, we shall give toPaul, what's Paul's and what gives to Peter, what's Peter's. This is the centre, that this centrewill have the acceded subject and the rest will remain here. 370 will have to be accordinglyaltered. It would not mean that Kashmir State will cease to have its special position. Amending 370 may be necessary at the time, when we finalize our Constitution, but even then, legally,Constitution, as it cannot, in any way rob Kashmir, of its special privileges and position givento it by common Agreement. 370 is therefore temporary, till we complete our Constitution.There, that's the spirit with which it should be incorporated in the Constitutional [UNCLEAR].This is the point My Lords. Anyway, My Lords, so that's.... I've done with this. So, now kindlycome back to the list of dates. Yes we were at serial 71, in written submissions compilation,Volume 2, PDF 53.
JUSTICE SANJAY KISHAN KAUL: It begins with serial number 72.
KAPIL SIBAL: Yes. Serial number 72. Let's read 71. 3rd of August.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: The governor of the state of Jammu and Kashmir...
JUSTICE SURYA KANT: PDF Mr Sibal, PDF?
KAPIL SIBAL: PDF My Lord..7...8...53, page 53 also. I'm sorry. Justice Kaul, My Lord hasit?
JUSTICE SANJAY KISHAN KAUL: Yes. That's why I said serial number 72, 5th August...
KAPIL SIBAL: 71 My Lords. I just want to read 71 also. 'The Governor of the State of Jammuand Kashmir, gave a press statement on the night of 3rd of August, that he was not aware ofany proposal to amend 370 or Article 35(a) and that all security arrangements andreinforcements in the state were being made pursuant to intelligence inputs, forecasting amajor terror incident. On the 5th of August at 11:00 am, on August 5, the President issued theimpugned order, titled 'The Constitution Application to Jammu and Kashmir Order 9, 2019.'This is CO 272. My Lords, let's, therefore mark. It's an Executive Act. The said order, issuedunder Article 371, with a purported concurrence of the Government of the State of Jammu andKashmir inserted Article 367(4) of the Constitution of India.' So that's what CO 272 did. 'Inparticular, the newly inserted Article 367(4)(c) stated that references in the Constitution to the 1 Government of the State of Jammu and Kashmir would be construed as including referencesto the Governor of Jammu and Kashmir.' Further 367(4)(d) amended Sub-Clause (3) of Article370, by replacing the expression, 'Constituent Assembly' of the state with the 'LegislativeAssembly' of the State. Executive Act. Now My Lords, let's come and look at that.It's in Volume3, PDF page 101. That's right.
JUSTICE SANJIV KHANNA: Volumeof what?
KAPIL SIBAL: Of documents My Lord.
JUSTICE SANJIV KHANNA: Documents?
KAPIL SIBAL: Yes.
JUSTICE SANJAY KISHAN KAUL: Page 101?
KAPIL SIBAL: 101 My Lords. Running page 494. Now kindly note, My Lords, at this pointin time, 356 was in operation.
JUSTICE SURYA KANT: Volume, Mr. Sibal? Volume?
KAPIL SIBAL: Volume 3. Documents Volume 3, PDF page 101. Note, My Lords, that at thistime, 356 was in operation.
JUSTICE SANJAY KISHAN KAUL: This is the 5th August 2019 notification?
KAPIL SIBAL: That's right. In exercise of the powers conferred by Clauseof 370 of theConstitution, the President, with the concurrence of the Government of the State of Jammuand Kashmir, could never be done. Because, other than 92,and 38, Governor could onlyact on the aid and advice of the Council of Ministers. That's the Jammu Kashmir Constitution.The Governor could not represent the state. So, the very inception of this executive order isconstitutionally flawed. In exercise of the powers conferred by Clauseof 370, the President,with the concurrence of the Government of State of Jammu and Kashmir, is placed to makethe following order. This order may be called the Constitution Application to Jammu andKashmir Order of 2019. It shall come into force at once, and shall thereupon supersede theConstitution Application to Jammu and Kashmir Order 1954, because all amendmentsthereafter to the ‘54 Order, My Lord, as amended from time to time. All the provisions of the 1 Constitution, as amended from time to time, shall apply in relation to the State of Jammu andKashmir, and the exceptions and modifications, subject to which they shall so apply, shall beas follows. So, My Lords, to Article 367 shall be added the following Clause 4. For the purposesof this Constitution, as it applies in relation to the State of Jammu and Kashmir, reference tothis Constitution, or to the provision thereof, shall be construed as reference to theConstitution or the provisions thereof, as applicable or as applied in relation to the state.Reference to the person for the time being recognized by the President on the recommendationof the Legislative Assembly of the State of Sadr-e-Riyasat of Jammu and Kashmir, acting onthe advice of Council of Minister of the state for the time being in office, shall be construed asreferences to the Governor of Jammu and Kashmir. And, references to the Government of theState shall be construed as including references to the Governor of Jammu and Kashmir,acting on the advice of the Council of Ministers. How can that be? There is no Council ofMinisters. So, you create a constitutional myth, and assume in the absence of Council ofMinisters, that there is a Council of Ministers. And then, you pass a Presidential Order that,even in the absence of Council of Ministers, the Governor is acting on the aid and advice of theCouncil of Ministers. What kind of exercise of executive power there is… is this? This is amockery. Which is why I've been saying, it's only a political act, it's not a constitutional act.You wanted to do something, you did it. 19D is even more serious. I don't think in any constitutional democracy in the world, this hashappened My Lords. In the famous Miller Case in the UK, My Lords, Boris Johnson tried tobypass Parliament and requested the Queen to prorogue the House. The House wasprorogued. Immediately My Lords matter came to the Supreme Court. All the Justices of theCourt sat. Now, Your Lordship knows this is the executive power of the Government. They canprorogue the House. But all came to a unanimous decision - you cannot even prorogue theHouse like this. You cannot exercise executive power to bypass Parliament. You bypassed discussion in Parliament. That's not the way constitutional democracies work. And this ismuch worse. You assume something that doesn't exist. You give powers to the Governor, whichhe does not have. You assume to yourself under 360... 350 all the powers of the State Legislature. You are Parliament. So you therefore invoke the powers of the State Legislatureas and Parliament, and you pass an executive order. What kind of... what kind of exercise oflaw is that or constitutional law? And then D - 'In the proviso to Clauseof Article 370 of thisConstitution, the expression Constituent Assembly of the State referred to in Clauseshallread the Legislative Assembly of the State.' What power does the President have to pass suchan order, My Lords? We're not dealing here with exercise of constitutional power. We'redealing with exercise of executive power.
CHIEF JUSTICE DY CHANDRACHUD: Just assist us, from their perspective, why was the amendment to 367 necessary at all? Why was this crucial? I mean, we are seeing now the modalities which they have put into place, for their constitutional design of ultimately abrogating 370. Why was this amendment to 367 necessary?
KAPIL SIBAL: Because My Lords, they themselves gave the power of the LegislativeAssembly which they were exercising in 356, as a Constituent Assembly and recommended.My Lords, they were ad idem my interpretation. They were as ad idem with myinterpretation...that you needed the recommendation of the Constituent Assembly. So how doyou reach there?
JUSTICE DY CHANDRACHUD: They constituted the Legislative Assembly as aConstituent Assembly?
KAPIL SIBAL: Yes. And My Lords, what they do is, they don't interpret it. They say in proviso3 of 370, the expression Constituent Assembly of the State referred to in Clauseshall read asLegislative Assembly. So they have amended Article 370 of the Constitution.
JUSTICE SANJIV KHANNA: Actually 367 amendment was really not required becauseyou are exercising power under Clauseto say Article....
KAPIL SIBAL: No, no, it was required because you needed the recommendation of theConstituent Assembly.
JUSTICE SANJIV KHANNA: That's something separate. But in 367, introducing Clause4, in terms of the notification dated 5th August 2019...
KAPIL SIBAL: You required it because My Lords they changed the definition of ConstituentAssembly in 370 as Legislative Assembly. This is why they could exercise power under 356.Please appreciate.
CHIEF JUSTICE DY CHANDRACHUD: But suppose for a moment that they have notgone through this exercise of amending 367, alright, or introducing 367(4), and suppose weare operating purely within the fold of 356…
KAPIL SIBAL: Yes.
CHIEF JUSTICE DY CHANDRACHUD: Alright? We are challenged with a 356notification, is a different issue.
KAPIL SIBAL: Yes.
CHIEF JUSTICE DY CHANDRACHUD: Now, just testing it as an exercise of power under356. Once the proclamation takes place under 356, two consequences follow. One, thePresident assumes to herself, all the powers of the state, the executive powers of the statevested in the President. Two… except the Legislature, the powers of the State Legislature. Two,the powers of State Legislature are then subsumed in Parliament. The Government of India,does not in its executive capacity, exercise the powers of the State Legislature. Parliament hasto exercise the powers. So once the proclamation under 356 was issued, two consequenceswould follow. All the powers which were vested in the Executive of Jammu and Kashmir, weretransferred to the President. All the powers of the State Legislature, were vested in Parliament
KAPIL SIBAL: Right.
CHIEF JUSTICE DY CHANDRACHUD: Now. If that was so, then if 370(3) is capable ofthe interpretation, just as a hypothesis, that it's a power to be exercised by the President toabrogate, they abrogate point number 2, “Any power which were to be exercised by the StateLegislature, would have to be exercised by Parliament”. So, they had to go to Parliament toget a resolution passed. Why was 367 necessary for the design, for the Constitutional designto achieve this at all?
KAPIL SIBAL: My Lord, I’ll tell you. 356 power cannot be exercised by the President andParliament in this fashion, independent of 367. It cannot be done.
CHIEF JUSTICE DY CHANDRACHUD: Why?
KAPIL SIBAL: Because, you are only acting as the Legislature. You don't have any powersindependent of the Legislature under 356. That's Bommai has held that. You have no suchpowers. And the Executive is only dealing with administration, it can't amend the Constitutionunder 356. Therefore, they'd had to do this, there was no choice. I’ll show My Lords Bommai.
CHIEF JUSTICE DY CHANDRACHUD: Yes. But assuming for a moment that we sort of…suppose, we disregard the 367 Amendment.
KAPIL SIBAL: Even if you do, then you can't exercise it under 356 at all. My Lords, it will bea dead letter. It will be inchoate. Because, you can't amend constitutional provisions, MyLords, through 356. You can only exercise the power of the State. Parliament can do it.
CHIEF JUSTICE DY CHANDRACHUD: Fair enough. Therefore, if that part of thenotification which amends 367, is kept aside for a moment, then what is the consequence?
KAPIL SIBAL: The consequence is, that 356 power cannot be exercised in the same fashion,which is the same result.
CHIEF JUSTICE DY CHANDRACHUD: No. See, 356 power is the power of the StateLegislature and the State Executive, which has now been vested in the President and in Parliament, respectively. You may be right for a moment, subject to hearing them, that look,how can you exercise the power to amend the Constitution by taking recourse to 356? Fair enough. We got that point, and we'll hear them on that. But, assume that we disregard thiswhole process of what took place under 367… either disregard it, or hold that it wasconstitutionally impermissible. Even so, does it affect?
KAPIL SIBAL: That's a separate issue, My Lords, I'll address Your Lordships on that. At themoment, I'm on this Executive Order. I'll come to 356, I'll come to the other issues later MyLords. Because ultimately, what you then do is, Parliament is exercising power as a legislatureand Parliament is exercising powers under 356 as well. Correct, My Lords? And as a legislatureof the state, let's assume, the state had to convert itself into a Constituent Assembly in termsof 373.
CHIEF JUSTICE DY CHANDRACHUD: I think what they believed was, they proceededon a particular hypothesis, that consultation with the Constituent Assembly is necessary.
KAPIL SIBAL: That's right.
CHIEF JUSTICE DY CHANDRACHUD: So therefore, they said that, alright, we’re nowgoing to replace the word ‘Constituent Assembly’ by the word ‘Legislative Assembly’, whichthey sought to achieve by amending the Constitution.
KAPIL SIBAL: No. It's the recommendation of the Constituent, it is not just converting it.You can't.
CHIEF JUSTICE DY CHANDRACHUD: The first step was to amend the Constitution.
KAPIL SIBAL: Yeah. You recommend it to yourself, because you have a political objective torecommend it, and My Lords, you take the decision yourself.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: These are very problematic, My Lords. And, see the consequences of this.That means, through an executive order, you can change any provision of the Constitution,because you have majority? But, this majoritarian culture cannot destroy the edifice of whatour forefathers gave us.
CHIEF JUSTICE DY CHANDRACHUD: So your argument therefore is that you cannotexercise the power in the 356 to amend the Constitution.
KAPIL SIBAL: Exactly.
CHIEF JUSTICE DY CHANDRACHUD: That point you've made clear.
KAPIL SIBAL: And they cannot possibly justify it unless there is some new jurisprudencethat comes to light, that they can do what they like as long as they have the majority. As it isMy Lords, now one of your esteemed colleagues has said, My Lords, that in fact, basic structuretheory is also doubtful. Maybe...
CHIEF JUSTICE DY CHANDRACHUD: Mr Sibal, when you refer to a colleague you haveto refer to a sitting colleague. Once we cease to be judges, they are opinions, not bindingdictats.
KAPIL SIBAL: That's true. Of course, it's not binding My Lords. But I'm surprised.
CHIEF JUSTICE DY CHANDRACHUD: On November 19...
TUSHAR MEHTA: Parliament doesn't discuss what goes on in the court.
KAPIL SIBAL: No, no I am not discussing anything.
TUSHA RMEHTA: Court should not discuss what goes on in the Parliament.
KAPIL SIBAL: No, I'm not discussing. This is a public...
TUSHAR MEHTA: it's a freedom of view, freedom of expression.
KAPIL SIBAL: No. No, I know. My Lords, I assume he has the freedom of expression.What's... to say what he likes. I don't dispute that. I'm just saying My Lords. Of course. Of course. Absolutely. We're starting a debate on that because of this majoritarian culture again.I said that... I said that 356 was already in place.
TUSHAR MEHTA: Mr. Sibal is responding to the parliamentary debate here becausepossibly he was not there in the Parliament yesterday.
KAPIL SIBAL: That is true. That is absolutely true.
TUSHAR MEHTA: It was that place where he could have My Lord, expressed his views onbasic structure.
KAPIL SIBAL: Not my view. My view is clear because my view is the court's view. I can't gobeyond that. I am an officer of the court. In court I have that constitutional view. Outside mayhave a different view. Anyway, that's neither here nor there. It's just an aside My Lords. Theremust be some element of humour and mirth in court as well My Lords. Not... everything can'tbe this serious. Therefore, see the consequences of this. And My Lords, then it is obviouslyclear that the Government of India and Parliament recognized that the Legislative Assemblywas the Legislative Assembly and could not be the Constituent Assembly which is myinterpretation. Therefore, it became necessary. Because they also knew that the LegislativeAssembly can't be the Constituent Assembly. That's precisely what I've been arguing. And itsays, 'Shall read'. This is an interpretation clause. Please appreciate. 367 is an interpretation clause. It's not a clause to substitute definitions. If you look at 367, the heading is interpretation. It's not substitution. You can't substitute definitions. You can only interpret.So it's outside of 367 itself apart from many other things that I've pointed out.
CHIEF JUSTICE DY CHANDRACHUD: See, what they have done is...
CHIEF JUSTICE DY CHANDRACHUD: So, we saw this notification. Then whathappened thereafter? We got your submission on this.
KAPIL SIBAL: My Lords, I just wanted to mention this to Your Lordship, that once they saidthe Legislative Assembly could be the Constituent Assembly.
CHIEF JUSTICE DY CHANDRACHUD: No, no, no.
KAPIL SIBAL: Legislative Assembly is a successor to the Constituent Assembly.
CHIEF JUSTICE DY CHANDRACHUD: No, we were saying, what amendment theymade. We didn't make a postulation that the Legislative Assembly could be the ConstituentAssembly.
KAPIL SIBAL: Your Lordship said that there is a consequence, now that there is noConstituent Assembly, why can't the Legislative Assembly be…?
CHIEF JUSTICE DY CHANDRACHUD: No, no, no, no.
KAPIL SIBAL: Anyway, I was mistaken. I’m sorry My Lords.
CHIEF JUSTICE DY CHANDRACHUD: That can never be…
KAPIL SIBAL: Anyway, let's move on My Lords, let's move on. Now, My Lords, I want toshow Your Lordships the original 367.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: Original 367. That's in Volume 1, PDF page 194, My Lords.
CHIEF JUSTICE DY CHANDRACHUD: Page?
KAPIL SIBAL: PDF 194, Volume 1. That's the original 367 before the amendment, asapplicable to Jammu and Kashmir.
CHIEF JUSTICE DY CHANDRACHUD: What page, Mr. Sibal?
KAPIL SIBAL: 194 My Lords. Starts at 193. 367 says interpretation, but the Clauseis at194.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: If I may read. For the purposes of this Constitution… My Lord Justice Kaulhas it?
JUSTICE SANJAY KISHAN KAUL: Yes.
KAPIL SIBAL: For the purposes of this Constitution, as it applies in relation to the State ofJammu and Kashmir, reference to this Constitution or to the provisions thereof, shall beconstrued as reference to the Constitution or the provisions thereof, as applied in relation tothe said... no problem. Then, references to the person, for the time being recognized by thePresident on the recommendation of the Legislative Assembly of the state, as the Sadr-e- Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the statefor the time being in office, shall be construed as references to the Governor of Jammu andKashmir. And then My Lords, references be, reference to the Government of the said state,shall be construed as including references to the Governor of Jammu and Kashmir acting onthe advice of the Council Ministers. So, mark that. That was changed. No, no… provided that…provided that in respect of any period, to the 10th day of April, 1965, such references shall beconstrued, including references to the Sadr-e-Riyasat acting on the advice of the Council ofMinister. My Lords, originally, the Sadr-e-Riyasat, till 1965, had to be appointed on therecommendation of the Assembly. A name would be sent, and they would agree. In '65 achange was made in terms of which, the President could directly appoint the Governor. Thatchange happened in 1965 in the Constitution of Jammu and Kashmir. So, like any other state.So slowly, slowly, in any case, My Lords, there was a slow, but sure obliteration of the kind ofautonomy that Jammu and Kashmir enjoy. All laws were applicable, including TADA, POTA,UAPA, all laws are applicable there, except for land laws and personal laws. Most laws of Indiaare applicable there at that point… at this point of time, in any case. So, there was actually noneed for any of this, except with the objective of sending a political message, that we have doneaway with 370. That's why all this was done. Now that's my submission.
TUSHAR MEHTA: After 2019 exercise, approximately 1,200 laws are now applicable. Allbeneficial legislations which are available to other citizens, now are available to Jammu andKashmir also. Prevention of Corruption Act was not applicable, Right to Education was not…
KAPIL SIBAL: There was, there was. My learned friend is not right.
TUSHAR MEHTA: They weren't laws. We have the list. We'll....
KAPIL SIBAL: Let’s not go into that. Let's not go into that. Prevention of Corruption Lawwas applicable.
CHIEF JUSTICE DY CHANDRACHUD: You are right Mr. Dwivedi. That's not aConstitutional point.
TUSHAR MEHTA: Political optics. All laws were applicable
KAPIL SIBAL: Just to set the record, right, the Jammu and Kashmir Prevention ofCorruption Act SAMVAT 2006 applicable. Because they were named differently. Anyway, let'sleave that. Let's not get into this. Then references to... then D, My Lords. 'References to thepermanent residents of the said State shall be construed as meaning persons who before thecommencement of the Constitution application to Jammu Kashmir order were recognized asState subjects under the laws enforced or were recognized by any law made by the LegislativeState as permanent resident. Reference to the Governor shall include references to theGovernor of Jammu and Kashmir provided that in respect of any period prior to 10th May...April 1965, such references shall be construed as references to the person recognized by thePresident as the Sadr-e-Riyasat of Jammu Kashmir, and as including references to any personrecognized by the President as being competent to exercise the power of the Government.'
CHIEF JUSTICE DY CHANDRACHUD: Actually they say in this notification of 5th ofAugust 2019, that they are adding Clauseto Article 367.
KAPIL SIBAL: That's right.
CHIEF JUSTICE DY CHANDRACHUD: But it appears that Clause already existed inArticle 367. So it was really a matter of substitution and not an addition. That's abut it's a substitution really.
KAPIL SIBAL: Correct. But Clause D is an addition, where the Constituent Assembly, it mustbe read as....
CHIEF JUSTICE DY CHANDRACHUD: C remains the same right? C remains the same.
KAPIL SIBAL: D is different entirely.
CHIEF JUSTICE DY CHANDRACHUD: D is different. You are right.
KAPIL SIBAL: And My Lords,also is also different. 'All provisions of the Constitutionamended from time to time shall apply in relation with Jammu and Kashmir. And theexemptions and modifications subject to which they shall apply, shall be as follows.' Allprovisions of the Constitution...
CHIEF JUSTICE DY CHANDRACHUD: And old Clause D goes. The references to apermanent residents of the state... that goes.
KAPIL SIBAL: That goes.
CHIEF JUSTICE DY CHANDRACHUD: Because that D is now substituted by theLegislative Assembly being treated as a Constituent Assembly.
KAPIL SIBAL: That's correct. That's correct. That's what...
CHIEF JUSTICE DY CHANDRACHUD: Mr. Sibal, there are two different standsoperating here. One stand arises out of the exercise of the power under 356. Under 356, youhave no power to amend the Constitution. If you exercise the power under 356 in relation toany other state in India, you can't amend the Constitution. 370 is a provision exclusively inoperation in relation to Jammu and Kashmir at the relevant time.
KAPIL SIBAL: Correct.
CHIEF JUSTICE DY CHANDRACHUD: So the power which they were exercising was the power under Clause D of Sub-Section of Clauseof Article 370.
KAPIL SIBAL: Correct. Absolutely right. But unfortunately, My Lord they couldn't do thatbecause Clausedealt with Instrument of Accession, subject related to Instrument ofAccession, and then concurrent list Issues.
JUSTICE SANJIV KHANNA: No. The Clause D is wider.
CHIEF JUSTICE DY CHANDRACHUD: Wider.
JUSTICE SANJIV KHANNA: You are referring to Clause A. You are referring to Clause D.
KAPIL SIBAL: Yes. I'm reading on Clause A also.
CHIEF JUSTICE DY CHANDRACHUD: D requires the concurrence of that Government.
KAPIL SIBAL: That's correct.
CHIEF JUSTICE DY CHANDRACHUD: That is a J&K Government.
KAPIL SIBAL: That is, Government means Government Council of Ministers. Governmentis not... under the....
CHIEF JUSTICE DY CHANDRACHUD: But tell us what happens when there is a 356 inoperation in the State of J&K?
KAPIL SIBAL: Let's put it this way My Lords, how does 356 in normal circumstanceshappen? My Lords, the Governor sends a report. The report is that the provisions of theConstitution cannot be carried on this particular state.
CHIEF JUSTICE DY CHANDRACHUD: Right.
KAPIL SIBAL: The Government of India under 356 takes over.
CHIEF JUSTICE DY CHANDRACHUD: Right.
KAPIL SIBAL: Now at that time the Assembly is in suspended animation That's the normalway that it is done. You keep the Assembly in suspended animation. You exercise your powers. Ultimately, the intent is to restore democracy. Therefore My Lords towards the end of it, whenyou know that elections should be held and you want restoration of democracy, you dissolvethe Assembly, and then you hold the election.
JUSTICE SANJIV KHANNA: Mr. Sibal, the question put was slightly different. Come to 370 Clause D. 'Such are the provisions of the Constitution shall apply in relation to the State'ssubject to exceptions and modifications that the President made by an order specify.' Now, asfar as this is concerned therefore the amendment was made to Clauseto Section 367 whichis the interpretation clause. Now, the proviso says no... 'provided further that no such orderwhich relates to matters other than those specified in the last proviso, preceding proviso, shall 1 be, shall be issued, except with the concurrence of the Government. The concurrence of theGovernment is the explanation, but... 3KAPIL SIBAL: Concurrent list subjects.
JUSTICE SANJIV KHANNA: No, concurrence of the government is the...
KAPIL SIBAL: Both, the Constitution of India as well as the concurrent list.
JUSTICE SANJIV KHANNA: Let's assume Council of... aid and advice of the Council ofMinisters for the time being in office. Now when we turn to 356, now 356 applies, 356 applies.
KAPIL SIBAL: Of course. Of course.
JUSTICE SANJIV KHANNA: Now if we turn to 356, then we have to go into what is thepower, if 356 provision has been invoked, who'll exercise the power of the Council of Ministersunder the terms of Article 371. So now the issue would be whether the Governor could haveexercised that power or not?
KAPIL SIBAL: No, My Lords, but at the moment I've not reached 356 My Lords. May I makemy submissions when I reach it My Lords.
JUSTICE SANJIV KHANNA: Okay.
KAPIL SIBAL: We've delved into another territory..
JUSTICE SANJIV KHANNA: No, we are not on [UNCLEAR] of 356. We are on thequestion of power....
KAPIL SIBAL: My Lord, I'll be dealing with the power of 356 My Lords, when we come to356. What happens is that ultimately My Lords, my trend of thought will be...because I havea..
CHIEF JUSTICE DY CHANDRACHUD: We'll just formulate it and leave it at that, thatonce, upon the proclamation under 356, all the powers of the Government of the State, arevested in the President. 38KAPIL SIBAL: Administrative powers..
CHIEF JUSTICE DY CHANDRACHUD: ..all the...yes, then can the President, in theexercise of the second proviso to Clause B of Article 371... 5KAPIL SIBAL: Amend the constitution..
CHIEF JUSTICE DY CHANDRACHUD: No, not amend the Constitution. Exercise thepower to grant a concurrence.
KAPIL SIBAL: My Lords, concurrence qua what? Qua which subject? Please appreciate.Either the applicability of the Constitution, right? With modifications and exceptions or MyLords, applicability of listing in the concurrent list. That's all. That's all that there is. It can'tbe more than that.
CHIEF JUSTICE DY CHANDRACHUD: Then the President has the power to issue anadaptation order?
KAPIL SIBAL: Yes.
CHIEF JUSTICE DY CHANDRACHUD: Under clause, under the second proviso to ClauseD, the President can issue an adaptation order.
KAPIL SIBAL: Correct.
CHIEF JUSTICE DY CHANDRACHUD: When you have a regular Government and aLegislative Assembly in place, you require the concurrence of the Government.
KAPIL SIBAL: Correct.
CHIEF JUSTICE DY CHANDRACHUD: Right? Now, when the power of Government hasbeen vested in the President under 356, it cannot be that the power of the President to issuean order of adaptation is taken away.
KAPIL SIBAL: Correct.
CHIEF JUSTICE DY CHANDRACHUD: Now who will exercise that power... that powerof concurrence?
KAPIL SIBAL: ... the President. It can't be contrary to Clause D of 373(d). It can't be that MyLords.
CHIEF JUSTICE DY CHANDRACHUD: But 370...No, Mr. Sibal, 370(d) says that no suchorder which relates to a matter other than referred to in the last preceding clause shall beissued, except with the concurrence of that Government. Now 'that Government' means theState Government.
JUSTICE SANJIV KHANNA: It means Council of Ministers..
CHIEF JUSTICE DY CHANDRACHUD: Haan, Council of Ministers. Now, what happenswhen a 356 notification is issued? In which case, will we say that that power cannot beexercised at all by the President.
KAPIL SIBAL: Mr Lords, I'm going to.... I'll answer that. Then My Lords, kindly read MyLords (C) and (D). 'Such of the other provisions of the Constitution, that is excluding Article 1and 370.'
CHIEF JUSTICE DY CHANDRACHUD: Mr. Sibal, under (D), the President has the powerto issue adaptations of the Constitution, which are all these orders that we are now seeing.
KAPIL SIBAL: Other provisions of the Constitution. it says, (D) says that My Lord. Each ofthe other, excludingand excluding 370. This is an amendment of 370 itself. How can thePresident exercise that power under (D)?
CHIEF JUSTICE DY CHANDRACHUD: No, we are now looking at the exercise of thepower to substitute 367.
KAPIL SIBAL: Yes. But that effectively is the amendment of the Constitution to 370.
CHIEF JUSTICE DY CHANDRACHUD: Mr. Sibal, the President has the power to amendthe Constitution or create exceptions, by taking recourse to the power under Clause D, thesecond proviso. The President has an unquestioned power to do it.
KAPIL SIBAL: Yes
CHIEF JUSTICE DY CHANDRACHUD: When there is a government in existence, it isconditioned by the requirement of concurrence. Now what happens when the government hasbeen superseded under 356? I'm just using superseded in a loose expression. If thegovernment has ceased to exist by the exercise of the power under 356, the entirety of thepower of the government is now vested in the President.
KAPIL SIBAL: But, even the government cannot change Article 1, 370 My Lords. Jammuand Kashmir Legislative Assembly can't change.
CHIEF JUSTICE DY CHANDRACHUD: You are right. Absolutely. Therefore...
KAPIL SIBAL: The executive can't go beyond that.
CHIEF JUSTICE DY CHANDRACHUD: You are right. Therefore the government, thegovernment also has no power to amend 370 by itself. 18KAPIL SIBAL: You can't change the scheme of 370, forget about amendment.
CHIEF JUSTICE DY CHANDRACHUD: But 370 itself postulates that it can be abrogated.
KAPIL SIBAL: 370, to say that it can postulate to efface Article 3, then I have no answer, MyLord. Then I have no answer.
JUSTICE SANJIV KHANNA: Mr. Sibal, the question is slightly different. The question is slightly different. Now, under Clause D to Section 371, the President, by an order, can make modifications to the provisions of the Constitution as they apply to that state?
KAPIL SIBAL: My Lords, please, please, please, I'm sorry to interrupt Your Lordships, but read the first part. “Such of the other provisions of this...”
JUSTICE SANJIV KHANNA: Correct. I am coming to that.
KAPIL SIBAL: So, the modifications can only be on…
JUSTICE SANJIV KHANNA: We’ve understood that. For the time being, just leave that argument apart, because one way to interpret Clause C to Article 371, is that it is only saying and 370 will certainly apply to the state of Jammu and Kashmir. D, refers to such of theprovisions of the Constitution shall apply in relation to the state, subject to such exceptionsand modifications as the President may, by an order, specify. For the time being, we’rereferring to 367, because the power under 367… because 367(4), which was applicable even atthe time in 2019? There was Clauseof Article 367, which was certainly applicable at the time,even in 2019?
KAPIL SIBAL: Yes, yes.
JUSTICE SANJIV KHANNA: Now, in order to make modification to that Clause, when 356in invoked, what will be the procedure?
KAPIL SIBAL: But, that's an interpretation clause, that's not a clause to amend theConstitution. I mean I don't understand My Lords. Obviously, I've got something wrong in myunderstanding of the plain reading of the sections. My Lords. Obviously, I'm completelywrong. But with greatest respect, that's an interpretation clause.
JUSTICE SANJIV KHANNA: Interpretation clause cannot be amended?
KAPIL SIBAL: No. By interpretation of clause you can't amend 370. That's the power. Withgreat respect, My Lords. You can’t substitute the Legislative Assembly, Constituent LegislativeAssembly. What has that got to do with interpretation? What you can't do directly, you can'tdo indirectly, My Lords. And where does the President get that power, when it says, “Such ofthe other provisions of the Constitution shall apply in relation to the state, subject to suchextent”? That means qua other provisions of the Constitution, you can have exceptions andmodifications, not exceptions and modification qua 370. So, I will not amend 370, but I willamend 367 to amend 370. My Lords, with great respect…
CHIEF JUSTICE DY CHANDRACHUD: In your argument on that as well, 367(4)…
KAPIL SIBAL: I have lot of problems.
CHIEF JUSTICE DY CHANDRACHUD: One second. 367(4) was brought in for the firsttime, not with the Constitution, but in 1954, right? So, when 367(4) is brought in, if yourargument is right, then the original insertion of 367(4) is also invalid.
KAPIL SIBAL: No. That is the interpretation. My Lords, Justice Damru… that's a casedirectly on point, where Your Lordships have said, Governor was always known to be theGovernor, Sadr-e-Riyasat was only the name. The argument was, Sadr-e-Riyasat, prior to1965, had to be elected.
CHIEF JUSTICE DY CHANDRACHUD: Right.
KAPIL SIBAL: … I will answer that straight away. Had to be elected. But, in fact, now, theGovernor was directly appointed by the President, right? He didn't have to be elected. Somerely, because there's a change of nomenclature, but if you change the substance of 370,considerations would be entirely different.
CHIEF JUSTICE DY CHANDRACHUD: Yes, that’s also…
KAPIL SIBAL: That’s held by Your Lordships. So, let's not… there was no fundamentalalteration there, My Lords. Here, there is a fundamental alteration. What you can't do directly,Your Lordships are now saying, let's look at 367. It is hard to find an alleyway to reach a logicalconclusion. One can try very hard My Lords, I get lost in my… when I go to my… It gets lost inalleyways, My Lords.
JUSTICE SANJIV KHANNA: Let's put it very simply. When Article 356 is in operation,how will you effectuate Clauseto Article 370, Clause 1, according to you?
KAPIL SIBAL: I will, My Lords. Please let me reach that stage. I've tried to answer all yourquestions so far, My Lords. I’ll answer that also.
CHIEF JUSTICE DY CHANDRACHUD: So, now we have seen that notification for 5th ofAugust, and the original Article 367. 30KAPIL SIBAL: 370, please remember. It says, “Notwithstanding, anything in thisConstitution”, at the beginning. And then it says, “Notwithstanding, anything in the foregoingprovisions”. 356 doesn't begin with that, with a non obstante clause. It's important to knowthat even 373 says 'Notwithstanding the above provisions'. So it's notwithstanding ofnotwithstanding. So then how do you exercise that power in any other way? 366 has to besubject to 370. Doesn't say, notwithstanding any provision of the Constitution, I can do whatI like. Then you go back to My Lords what we tried to get rid of in 1950. But that's why I said 43now.... This is now Volumeof written submissions and PDF page 53. I was at item serialnumber 73.
JUSTICE SANJIV KHANNA: Volumewritten submissions?
KAPIL SIBAL: 73 My Lords. 5th of August. PDF page 53. The second paragraph. 'It's 70members of the House raised objection.'
JUSTICE SANJIV KHANNA: Just one minute.
JUSTICE SURYA KANT: PDF Mr. Sibal?
KAPIL SIBAL: 53, My Lords. 53. 'Members of the House' - My Lords have that? - 'raisedobjections that the bill had not been circulated. And if and when the bill is circulated, time beallot for reading and understanding the bills and that only after the bill had been introducedwas a supplementary list of bills was circulated in the House. The Statutory Resolutions ReJammu and Kashmir Reorganization bill 2019 provided that the President of India hadreferred the Jammu and Kashmir Reorganization bill 2019 to this House under the proviso toArticleof the Constitution of India.' Just My Lords, pause here for a minute. Now, if you lookat Article 3, Your Lordships will find the Constitution... And as Constitution of India asapplicable to the State of Jammu and Kashmir. This is document Volume 1, PDF page 66. Thisis important My Lords, because remember this is the 5th of August. The bill is passed on the6th of August but introduced on the 5th of August. So if you go to the Article (3) of theConstitution as applicable, you will find, that the second proviso says, provided further.... MyLords have that?
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: Provided further that no bill....
CHIEF JUSTICE DY CHANDRACHUD: Mr. Sibal, just one second. Volume 1....
KAPIL SIBAL: This is PDF 66 Volume, documents Volume 1. It says that provided further,that no bill providing for increasing or diminishing the area of the State of Jammu andKashmir, or altering the name of boundary of that State shall be introduced in Parliamentwithout the consent of the Legislature of that State. So there is no Legislature. I mean, there isno Legislative Assembly. Governor has dissolved on the 21st of November, the Assembly. You have to introduce the bill only with the consent, concurrence of the Legislature. Youintroduced the bill, contrary to the Article, because he says this is suspended, nothing exists.So by this time it is dissolved. How do you do that? Every executive act, is constitutionallyflawed, impermissible. It's a violation of the fundamentals of Constitutional Law.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: First proviso says, they provided that no bill for the purpose shall beintroduced in neither house of Parliament, except on the recommendation of the Presidentand unless where the proposal contains, the bill affects the area boundaries name states, thebill has been referred by the President to the Legislature for expressing its views thereon. Sothe first proviso dealt with another States like Telangana when they were created, it had to goto the Legislature for expression of views. Government of India may not, Parliament may notagree with those views. That's, of course, the power of Parliament, given by the Constitutionitself. So they introduced a bill without the legislative consent. I'll come to the reorganizationbill later, but I just wanted to mention because we are on the list of dates, that this itself couldnot have been done. Now, My Lords, kindly come back to my Volume 2, written submissions....was not the legislature.
JUSTICE SANJIV KHANNA: Governor's consent was taken?
KAPIL SIBAL: Had to be My Lord. Not that we know, but yeah, it was not. That’s right...no,I'm sorry My Lords. Yes, yes. The proviso, and then they gave consent themselves. Took theirown views. My Lords, they had to take the views of the legislature, they removed the provisoand took their own views. And on the basis of that....Yes, yes.
CHIEF JUSTICE DY CHANDRACHUD: Give us the sequence. You told us last time, Ithink, 19th December 2018, which was the documents compilation Volume 3, page 92, whenthe proclamation under 356 was issued, they suspended the provision of the StateConstitution, and proviso to Articlewas also suspended.
KAPIL SIBAL: That’s right.
CHIEF JUSTICE DY CHANDRACHUD: That’s step one.
KAPIL SIBAL: That’s step one.
CHIEF JUSTICE DY CHANDRACHUD: Then, thereafter…
KAPIL SIBAL: President’s rule was extended from time to time.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: On 3rd July, it was extended thereafter, and on 5th August, this happened.
CHIEF JUSTICE DY CHANDRACHUD: 5th of August, ’19?
KAPIL SIBAL: ’19. So, originally, My Lords, 19th of June. Just to get two, three facts right,19th of June, BJP withdrew support. 20th of June, Governor exercised the powers to keep theassembly in animated suspension. 20th, the very next day, he didn’t explore the possibility ofa government being formed. Now, he had to, necessarily under the Jammu KashmirConstitution, hold elections within six months. When, My Lords, there were some attemptsmade in December to form a government… November, to form a government between theNational Conference as well as PDP, immediately on 19th December... 21st November, hedissolved the Assembly. The six months were not yet over.
CHIEF JUSTICE DY CHANDRACHUD: What is the date of that?
KAPIL SIBAL: On 21st of November.
CHIEF JUSTICE DY CHANDRACHUD: 21st of November, 2018?
KAPIL SIBAL: ’18. He dissolved the Assembly.
CHIEF JUSTICE DY CHANDRACHUD: Can you just ask one of your juniors to give usthe page reference.
KAPIL SIBAL: Page reference.
CHIEF JUSTICE DY CHANDRACHUD: Because last time, some or the other we didn't...
KAPIL SIBAL: I’ll do that. In a second My Lord. My colleagues are adept at that. Volume 3,PDF page 89.
CHIEF JUSTICE DY CHANDRACHUD: Volume 3…
KAPIL SIBAL: … PDF page 89. November 21, 2018 order, where what he says is, by virtueof powers vested upon me in terms of proclamation so and so… 20th June 2018, issued undersub-section1 of 92, and in exercise of powers conferred upon me by Clause B of subsection 2of 53 of the Constitution, I hereby dissolve the Assembly.
CHIEF JUSTICE DY CHANDRACHUD: Then comes 19th December ’18, proclamationunder 356.
KAPIL SIBAL: That's right.
CHIEF JUSTICE DY CHANDRACHUD: And he suspends… the President's suspends theproviso to Article 3.
KAPIL SIBAL: Correct.
CHIEF JUSTICE DY CHANDRACHUD: That’s the next step.
KAPIL SIBAL: Page 92. PDF page 92.
CHIEF JUSTICE DY CHANDRACHUD: Yes. Document compilation 3, we got that.
KAPIL SIBAL: Then, it's extended till 3rd of July, that's at page 95. PDF page 95.
CHIEF JUSTICE DY CHANDRACHUD: Extension till?
KAPIL SIBAL: For six months, My Lords, from 3rd of July. And, in between 5th of Augustthis happens, between the six-month period. 5th of August he introduces it, My Lords. First,on 5th of August is the Amendment Order, My Lords.
CHIEF JUSTICE DY CHANDRACHUD: Yes, we saw the amendment order.
KAPIL SIBAL: And then, My Lords, he introduces this. Now, I'm going to not deal with thereorganization bit at the moment, My Lords, we come therefore… skip the date and come to C.O. 273, serial number 77. Now we have seen C.O. 272, which I showed Your Lordships, which 47is under challenge. That's, the executive power as exercised by them, which substitutes, My Lords, 367. That is, C.O. 272. Now, it’s C.O. 273.
JUSTICE SANJAY KISHAN KAUL: We are in the list of dates?
KAPIL SIBAL: List of dates, Volume 2, written submissions, written compilation, and serial77. I've skipped the ones in between.
JUSTICE SANJAY KISHAN KAUL: Okay.
KAPIL SIBAL: All My Lords have it? The President issued C.O. 273, which is also impugned,it's also an executive order… in exercise of power under 370, Sub-Articleof the Constitutionas amended by C.O. 272, declared that Article 370 would cease to apply with effect from 6thof August 2019. So again through an Executive Order, they passed an order saying thisparticular Article would cease to apply. These are not legislative acts. My Lords, this is inVolume 3, page... PDF page 103. Documents Volume 3. Yeah. Declaration. It's a declaration,not an order My Lords.
JUSTICE SANJAY KISHAN KAUL: Declaration under Article 370.
KAPIL SIBAL: Under Article 370 Sub-Article 3. Which power... I mean what power does thePresident have to make such a declaration? Under which provision of the Constitution? 'Inexercise' - My Lords have that? This is PDF page 103, document Volume 3. Justice Surya Kant?
JUSTICE SURYA KANT: It's reproduced in the PDF also.
KAPIL SIBAL: Okay. Okay. Sometimes easier. 'In exercise of the powers conferred by Clause3 of Article 370 read with Clauseof Article 370 of the Constitution of India, the President, onthe recommendation of Parliament....' Now My Lords see this. So Parliament that is actingunder 356 becomes the Legislative Assembly recommends to itself exercising the powersunder 370 as a Constituent Assembly and then says that 370 ceases to exist. So you My Lords,therefore assume all the powers of the State Legislature, of Parliament, of the ConstituentAssembly and give consent to yourself. Recommend to yourself and accept therecommendation yourself. So amazing exercise of Constitutional legerdemain. Therefore, hesays, My Lord, that - 'All clauses of the said Article 370 shall cease to operate the operativeexcept the following which shall read as under, namely - all provisions of this Constitution, asamended from time to time, without any modifications or exceptions, shall apply to the State 48of Jammu and Kashmir notwithstanding anything contrary contained in Article 152 or 308, orany other article of this Constitution, or any other provision of the Constitution of Jammu andKashmir, or any law, document, judgment, ordinance, order, by-law, rule, regulation,notification, custom or usage having the force of law in the territory of India, or any otherinstrument, treaty or agreement as envisaged under Article 363 or otherwise.' Go back MyLords to the list of dates. There is a very serious thing that's happened in Gurgaon My Lords, where there is a call alongwith policemen to say that - If you employ these people in these shops you will all be gaddars.My Lords, this is creating... We have filed an emergency petition. Your Lordships may take alook at it at lunch time. That's all. 12<<>>
KAPIL SIBAL: I just want My Lords to look at documents Volume 3, PDF page 104.Documents Volume 3, PDF 104.
CHIEF JUSTICE DY CHANDRACHUD: That is, the acceptance by Parliament? Everyorganizer...
KAPIL SIBAL: It moves the resolution My Lords. Amit Shah moves the resolution. It isimportant to read it.
JUSTICE SANJAY KISHAN KAUL: Supplementary list of business.
KAPIL SIBAL: Yes. Says that the President of India has referred the Jammu and KashmirRe-organization Bill to this House under the proviso to Article 3, of the Constitution for itsviews, for its views as this House is vested with the power of the State Legislature of Jammuand Kashmir, as per the proclamation of the President of India dated 19th December 2018.This House resolves to express the view to accept the Jammu and Kashmir re-organizationbill. Then My Lords the speech, to the statutory resolution and what he says when he movesit. That's at page PDF 105, that this House recommends. So that's the understandingthroughout. This House recommends the following public notification to be issued by thePresident. An exercise of the powers conferred by Clauseof 370, read with Clauseof 370.The President, on the recommendation of Parliament is pleased to declare that the 5th, as from5th August, all clauses of the said Article 370 shall cease to be operated except Clausethereof,which shall read as under that all the provisions of this Constitution is amended from time to time, without any modifications and exceptions shall apply to the State of Jammu andKashmir, notwithstanding anything contrary contained in 152 or 308, or any other Article thisConstitution, any other provision of the constitution of Jammu and Kashmir or any law ordocuments, judgments etc. The President has referred the Jammu and Kashmir re-organization bill to this House, under the proviso to Articlefor its views.
CHIEF JUSTICE DY CHANDRACHUD: And then the Presidential notification is served.
KAPIL SIBAL: Correct. Just one other thing and then if Your Lordships kindly come back tothe... first C.O. 202. Just for a minute My Lords.
CHIEF JUSTICE DY CHANDRACHUD: What page would that be?
KAPIL SIBAL: Yes, 101. PDF 101.
JUSTICE SANJAY KISHAN KAUL: Is this document one or...
KAPIL SIBAL: PDF 101, same document. Volume 3, same one just above this. So, it's notjust My Lords, the substitution of definitions, it's much more than that. I just wanted to pointthat out. That in exercise of the powers conferred by Clauseof 370, the President with theconcurrence of the State of Jammu and Kashmir, is pleased to make the following Order. Hemakes that Order and that it shall come into force at once and shall thereupon supersede theConstitution application to Jammu and Kashmir Order 1954 as amended. So it's not just 367.And then all the provisions of the Constitution as amended from time to time, shall apply tothe State of Jammu and Kashmir, and the exceptions and modifications subject to which thereshall so apply shall be as follows. So My Lords, they supersede the 54 Order, apply all theprovisions of the Constitution and then the C 367. So it's not just the interpretation clause.That's all I wanted to point out. Now My Lords, kindly come back to the list of dates, so thatwe can..., that is written submissions compilation Volumeand we were at 77. My Lords we'vealready read 77 in the sense that I have read it from the Amit Shah's, from the Home Minister'sthe introduction. And then My Lords, 78 is 9th of August 2019. In exercise of the powers underSection 2(a) of the Jammu Kashmir Re-organization Act, on receiving the assent of thePresident, the Respondents from the Ministry of Home Affairs issued a notification for theprovisions of the Act to come into force with effect from 31-10. Then, of course, the writpetition is... sorry.
CHIEF JUSTICE DY CHANDRACHUD: And then the petition, and then...
KAPIL SIBAL: And then My Lords, 31st of October, pursuant to the notification SO to...
CHIEF JUSTICE DY CHANDRACHUD: Bifurcation to Ladakh, and...
KAPIL SIBAL: Yes, yes, that's what happened. So that's all My Lords, the facts areconcerned. Now, My Lords kindly, just, so therefore, we are dealing with three issues. 356power. C.O. 2O2. C.O. 2O3. 273. Now, just My Lords, keep three principles in mind, which aregoing to be my key submissions. It's my submission to Your Lordships, that when interpretingall these Executive Orders and the Constitution, three principles must be kept in mind.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: The first is, that the clear language of these provisions, in its structural andhistorical context. The clear language of these provisions in its structural and historical context, ought to be given effect. And, it is our contention that the language of the provisionsis clear, unambiguous, and on its own terms must be given effect. You can't find ambiguitywhere none exists. So, that's the first principle. Second, if there is a textual ambiguity, theCourt should not be adrift in a sea of pragmatism. And the Court must interpret that...
JUSTICE BR GAVAI: If there is structural ambiguity?
KAPIL SIBAL: If there is any textual ambiguity, or the possibility of trying to find another possible interpretation, let's put it that way.
CHIEF JUSTICE DY CHANDRACHUD: The Court should not be adrift in a sea of....
KAPIL SIBAL: Adrift in a sea of pragmatism.
CHIEF JUSTICE DY CHANDRACHUD: And?
KAPIL SIBAL: And My Lords, the interpretation that is more consistent with ourConstitutional values. An interpretation that is more consistent with our Constitutional valuesnamely, Representative Democracy and Federalism. Representative Democracy, Federalismand Constitutional morality should be preferred.
JUSTICE SANJAY KISHAN KAUL: Could you repeat that again, Mr. Sibal?
KAPIL SIBAL: My Lords, if there are, if...
JUSTICE SANJAY KISHAN KAUL: The second part.
KAPIL SIBAL: My Lords, if there's a textual ambiguity, or a possible alternativeinterpretation, by stretching your mind a bit, then My Lords, we must interpret thoseprovisions, we're not adrift in a sea of pragmatism. We must interpret those petitions,provisions consistent with Constitutional values, Federalism, Representative Democracy andConstitutional morality.
CHIEF JUSTICE DY CHANDRACHUD: That's the second?
KAPIL SIBAL: That's the second.
CHIEF JUSTICE DY CHANDRACHUD: And the third?
KAPIL SIBAL: That will ensure the smooth and harmonious functioning, working of theConstitution.
JUSTICE SANJIV KHANNA: Written submissions which you have given.
KAPIL SIBAL: No, I'm just My Lords, putting it My Lords. And the third is that, any powervested, by or under the Constitution is in essence a limited power. There is no unlimited powerMy Lords, vested in any institution under the provisions of the Constitution. It's a limitedpower. It is limited at the time, at the point of time when it is exercised. It is limited at thepoint in time when it is exercised and limited by core constitutional principles of value, bothin terms of time and core constitutional principles and values, since no power is absolute.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: And therefore must be exercised in accordance with the provisions. My Lord.This is my fundamental premise on the basis of which Your Lordships, I beseech will try andinterpret the Constitution in the manner that I have suggested.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: So My Lords, if you look at it from these, from the standpoint of theseprinciples, and you apply them to Article 3, Article 356 and Article 37(1)(d), 371(d). Applythese to these three articles, this is the exercise of executive power.
CHIEF JUSTICE DY CHANDRACHUD: 3, 356?
KAPIL SIBAL: 371(d) My Lords. The answers according to me are evident. Why? I will justpresently say. The power under 371(d) does not extend to abrogating 370 by applying thosethree principles. The power under 356, My Lords, does not extend to making non-restorativepermanent alterations, non-restorative permanent alterations to the state's constitutionalstatus. That's on My Lords, 370... 356. And the power under Articledoes not extend toeffacing the character of a state into a Union Territory. The power under Section 3, Article 3does not extend to effacing the character of a state into a Union Territory. So therefore it is theinteraction.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: Interactive dimensions. The interaction of the values of constitutional, ofconstitutional values and federalism, separation of powers and democracy itself, there are atplay. That's with greatest respect how My Lords, Your Lordships are kind enough, My Lords.And therefore My Lords, the question that arises is- "is there a limit to the emergency power,or is it unlimited?" That's what they are trying to do in using 356. To change the wholestructure. So is it unlimited? Can emergency be passed to make use, to make permanentconstitutional changes? Is it an unlimited power? Can it be used to make permanentconstitutional changes? Permanent and irreversible. And can the constituent power beequated with ordinary powers? Effacing the source of their authority. Constituent power is aseparate genus of power. Can it be equated with ordinary legislative power? It can't. And canConstitutional change, last of all, happen without consultation with the people, despite...consultations with the people of Jammu and Kashmir, despite an express provision in thatregard? And last of all, can a state be downgraded to a Union Territory by the Union on its ownwhim and fancy without consultation with the people affected? Those are the constitutionalparameters that I respectfully state should apply when dealing with this momentous changethat was brought about by exercise of majoritarian executive power. Now My Lords, I will takeYour Lordship with some of these decisions. First of all, My Lord, 356. Let me straight awaycome to 356. We'll come to Bommai. Volume 2, Case Law compilation, Volume 2, at PDFpage 120. 113, sorry My Lords. 113. 113, sorry. PDF page 113, paragraph 96. Volume 2.
CHIEF JUSTICE DY CHANDRACHUD: Justice Jeevan Reddy's judgement or... JusticeSawant.
KAPIL SIBAL: Justice Sawant. Now My Lords the para 96. My Lords have that?
CHIEF JUSTICE DY CHANDRACHUD: Yes. 7KAPIL SIBAL: It will be an inexcusable error.
CHIEF JUSTICE DY CHANDRACHUD: 113.
KAPIL SIBAL: 113, running page 267, Volume 2. May I read My Lords.
CHIEF JUSTICE DY CHANDRACHUD: Para 96?
KAPIL SIBAL: 96.It is inexcusable...It will be an inexcusable error to examine the provisionsof Article 356 from a pure legalistic angle and interpret their meaning only throughjurisdictional technicalities. The Constitutional...Constitution is essentially a politicaldocument, and provision such as 356 have a potentiality to unsettle and subvert the entireconstitutional scheme. The exercise of powers vested under such provision needs therefore tobe circumscribed to maintain the fundamental constitutional balance lest the Constitution isdefaced and destroyed. This can be achieved even without bending, much less breaking thenormal rules of interpretation. If the interpretation is alive to the other equally importantprovisions of the Constitution, and it's bearing on them, democracy and federalism are theessential features of our Constitution and are part of its basic structure. Any interpretationthat we may place on Article 356 must therefore help to preserve not to subvert their value.The power vested de jure in the President, but de facto in the Council of Ministers under 356 has all the latent capacity to emasculate the two basic features of the Constitution, and henceit is necessary to scrutinize the material on the basis of which the advice is given, and thePresident forms his satisfaction more closely in circumspect. This can be done by the Courtswhile confining themselves to the acknowledged parameters of the judicial review, asdiscussed above, illegality, irrationality, and malafide. Such scrutiny of the materials will alsobe within the judicially discoverable and manageable standards. So that's the first My Lordsparagraph. Then 106, PDF 119. Thus, I'm sorry. Thus, the federal principle, social pluralismand pluralistic democracy, which forms the basic structure of our Constitution, demands thatthe judicial review of the proclamation under 356 is not only an imperative necessity, but astringent duty and the exercise of power under the set provisions is confined strictly for the purpose and to the circumstances mentioned therein and none else. That's very important.The purpose of 356 is to restore democracy. That is why this, this is very important. So, youmust interpret whatever the actions of the Government are in the context of that purposeunder 356. It also requires that the material on the basis of which the power is exercised isscrutinized circumspectly. In this connection, we may refer to Dr. Ambedkar, what he had tosay in reply to the apprehensions expressed by other honourable members of the ConstituentAssembly, In this context, which also brings out the concerns weighing in the mind ofhonourable members. In regard to the general debate which has taken place, in which it hasbeen suggested that these articles are liable to be abused. And you say that I do not altogetherdeny that there's a possibility of these articles being abused or employed for political purposes.So this is not something that I am saying on my own, My Lords. This was envisaged. But thatobjection applies to every part of the Constitution, which gives power to the centre to overridethe provinces. In fact, I share the sentiments expressed by my honourable friend, Mr. Gupteyesterday, that the proper thing we ought to expect is that such articles will never be calledinto operation and that they would remain a dead letter. If at all, they are brought intooperation, I hope the President, who is endowed with these powers, will take properprecautions before actually suspending the administration of province. I hope the first thingthat he will do, would be to issue a mere warning to a province that has erred, that things werenot happening in the way in which they were intended to happen in the Constitution. If thatwarning fails, the second thing for him to do will be to order an election, allowing the peopleof the province to settle matters by themselves. It is only when these two remedies fail, that hewould resort to this Article. It is only in those circumstances, he would resort to this Article. Ido not think we could then say that these Articles were imported in vain, or that the Presidenthad acted wantonly. Time and again, in the history of this country, 356 has been misused byall [UNCLEAR]. That was never the intent. And now, in this, in changing the structure of thisConstitution as applicable to Jammu and Kashmir, it has crossed all limits. See what happens.20th of June, My Lords. 19th of June, support withdrawn. 20th of June, Governors. Governorsays and suspended animation. 20th of November, an attempt is made, My Lords, there issome ambiguity in that, to form a government. 21st November, dissolution. Can't be donewithout the aid and advice. Then, My Lords, after 21st November, 19th December. Then 356.Then 3rd of July extended, then 5th of August. 32Where are the steps for the restoration of democracy? Where are those steps? In fact, the stepsare just to the contrary. The reverse of it. Destruction of democracy. People are not taken intoaccount. Their views are not taken into account. You arrogate to yourself the powers of theState. You arrogate to yourself the powers of the Legislature. Parliament becomes aspokesperson of the people of Jammu and Kashmir. And you express the wishes of the Jammu and Kashmir Assembly through Parliament, when the Constitution requires you to take theviews of the state, of the Legislature, of the people of Jammu and Kashmir, who gave tothemselves the Constitution of Jammu and Kashmir. Everything that is done under 356 iscontrary to the basic principles of both federalism and democracy and to the principle ofconstitutional morality.
CHIEF JUSTICE DY CHANDRACHUD: Yes Mr. Sibal.
KAPIL SIBAL: Then 108, My Lords. The further, equally important question that arises inthis context is whether the President, when he issues a proclamation under 356 would bejustified in removing the Government in power or dissolving the Legislative Assembly, andthus in exercising all the powers mentioned in Sub Clauses A, B, and C of Clauseof Article356, whatever the nature of the situation or degree of the failure of the constitutionalmachinery. A strong contention was raised that situations of the failure of the constitutionalmachinery may be varied in nature and extent, and hence, measures to remedy the situationmay differ both in kind and degree. It would be a disproportionate and unreasonable exerciseof power if the removal of Government or dissolution of Assembly is ordered when, what thesituation required was, for example, only assumption of some functions or powers of the State,Government of the State, or of anybody or authority in the State under 356(1)(a). This is notthe only power that you can exercise under 356. There are incremental steps to be taken. Thisis not a guillotine provision. And it's temporary to say the least. So unless Your Lordships comedown heavily that 356 is not meant for this purpose. The excessive use of power also amountsto illegal, irrational and malafide. So Your Lordships will have to determine is, was this not anexcessive use of power? And per se it would be illegal, malafide and irrational. Hence, it isurged, that the Doctrine of Proportionality is relevant in this context and has to be applied insuch circumstances. To appreciate, My Lords, that's why I said, in normal circumstances,dissolution would never happen. First, the Assembly would be suspended, be in suspendedanimation. Attempts would be made to form a Government. In the meantime, you exercise President's rule. When you realize that it’s just not possible at all, it’s then at that stage thatyou dissolve the Assembly and order elections. Now you've dissolved the Assembly. When didyou dissolve it? OnNovember 2018. And we are where? In August 2023. Was that meant tobe, My Lords, under 356? Hence it is urged that the Doctrine of Proportionality is relevant. To appreciate the discussion on the point, it is necessary to realize that the removal of Government and the dissolution of the Assembly are effected by the President, if he exercisespowers of the Governor, under 164-174, respectively, under Subclause A of Article 356, thoughthat is neither necessary nor obligatory while issuing the proclamation. In other words, the removal of the Ministry of the dissolution of the Legislative Assembly is not an automaticconsequence of the issuance of the proclamation. 3The exercise of the powers under clause and sub-clause is (a), (b), and (c) of 356 may also co-exist with the mere suspension of the political executive and the legislature of the state. Sub6 Clause (c) of Article 356 makes it clear. It speaks of incidental and consequential provisions togive effect to the object of the emergency, of the proclamation including suspension in wholeor in part of the operation of any provision of the Constitution relating to anybody or authorityin the State. It has to be noted that unlike Sub-Clause (a), it does not exclude the legislature ofthe State. Sub-Clause (b), only speaks of exercise or power of the legislature of the State by orunder the authority of Parliament. What is further, the assumption of only some of thefunctions of the Government, and the powers of the Governor or of anybody or authority inthe State other than the legislature of the State under Sub-Clause (a), is also conceivable withthe retention of the other functions and powers with the Government of the State and theGovernor or anybody or authority in the State. The language of (a), is very clear on the subject.It must be remembered in this connection that where, there is a bicameral legislature, theUpper House, the Legislative Assembly cannot be dissolved. Yet under Sub-Clause (b), of 356(1), it's powers are exercisable by or under the authority of Parliament. The word used there islegislature, not Legislative Assembly. Legislature includes both Lower and Upper House.Legislative Assembly and the Legislative Council. It is also to be noted that when the powersof the legislature of the State are declared to be exercisable by or under the authority ofParliament under 356(1)(b), it is competent for Parliament under 357 to confer on thePresident the power of such legislature to make laws, and to authorize the President todelegate the powers so conferred to any authority to be so specified, to be specified by him.The authority so chosen may be by the Union or officers and authorities. Legally therefore, itis permissible under 356, firstly, only to suspend the political executive, or anybody orauthority in the State, and also the legislature, and not to remove or dissolve them. Secondly,it is also permissible for the President to assume only some of the functions of politicalexecutive or of anybody or authority of the State other than the legislature while neithersuspending nor removing them. The fact that some of these exercises have not been resortedto in practice so far does not militate against the legal position which emerges from the clearlanguage of 356. In this connection you may refer to Dr. Ambedkar had to say on the subjectof Constituents Assembly. The relevant extract from his speech is reproduced in para, whichI've already read. Hence, it is possible for the President. Therefore, My Lords, we neednot...this really... 36And then sorry, My Lords, the last paragraph. However whether in a particular situation, the extent of powers used is proper and justifiableis a question which would remain debatable and beyond judicially, discoverable andmanageable standards unless the exercise of the excessive power is so palpably irrational, ormalafide as to invite judicial intervention.In fact, once the issuance of the proclamation is heldand valid, the scrutiny of the kind and degree of power under this proclamation falls in anarrow compass. I'll just pause here. My Lords on the 21st of November, the Governor had nopower to dissolve Parliament. He could only do it under the...on the aid and advice of theCouncil of Ministers. So see what they did. They knew that the Councils of Ministers wouldnever advise the Governor to dissolve. So he dissolved it on his own. If you dissolve it on yourown, what are you left with? Only the Governor. And then the Governor, My Lords, did whathe did. You imposed 356 and then you take over the powers. And My Lords, ultimately you arethe delegate. 356 delegates the powers of the legislature to you. You're not an omnipresent,omnipotent authority to do what you like. You are the delegating. You have been delegated thepowers of the legislature. What the primary institution cannot do, the delegate cannot do. Sotherefore, 356 was an extraordinary provision, allowing a progressive pathway for restoration.So My Lords, that's it. I'm done with this. Then....
CHIEF JUSTICE DY CHANDRACHUD: Mr Sibal then you can perhaps give us the paragraphs. You can read them if they are in the same drift. Just give us the paragraphs so thatwe can use them later.
KAPIL SIBAL: I will give you the paragraphs. Volume two whereas therefore, there's JusticeJeevan Reddy.
CHIEF JUSTICE DY CHANDRACHUD: Which para?
KAPIL SIBAL: 268 and para 289.
CHIEF JUSTICE DY CHANDRACHUD: Paras 268...
KAPIL SIBAL: 268, 289, PDF 225. 268, 289 para, PDF 225.
CHIEF JUSTICE DY CHANDRACHUD: Right.
KAPIL SIBAL: Then My Lords, Justice Ahmadi, PDF 69.
CHIEF JUSTICE DY CHANDRACHUD: PDF?
KAPIL SIBAL: PDF 69. Paragraphs 14,and 23. Right? The rest I've dealt. This iswhat...yes. Yes, the rest I have... So, this My Lords completes the...
CHIEF JUSTICE DY CHANDRACHUD: What is the next judgment now?
KAPIL SIBAL: My Lords, yes. There's a speech of just, of Ambedkar on Constitutionalmorality, which I just want to mention. That is November 1948. Compilation Volume 8. I willjust do that. Document Compilation Volume 8, PDF 3. No, sorry 15. Sorry. Right.
CHIEF JUSTICE DY CHANDRACHUD: I think I cited it in the first Delhi Judgment. The NCT Judgment, 2018. Document Compilation 8, page?
KAPIL SIBAL: Page My Lords 15. PDF 15, running page 2876 at the bottom, My Lords. Yes,it's also quoted My Lords, in the Delhi matter. So, My Lords, it's all right. We can moveforward. So, My Lords, this is now, I've done with 356. We'll give Your Lordships the pages ofthe Delhi Judgment also?
CHIEF JUSTICE DY CHANDRACHUD: Yes, you can just give that.
KAPIL SIBAL: Paragraph 280...
CHIEF JUSTICE DY CHANDRACHUD: Where is the Delhi Judgment? NCT?
KAPIL SIBAL: Yeah, I will just give Your Lordships the citation. Volume 5.
CHIEF JUSTICE DY CHANDRACHUD: Case Law right?
KAPIL SIBAL: Case Law Compilation, Volume 5. PDF 2, where it starts.
CHIEF JUSTICE DY CHANDRACHUD: At?
KAPIL SIBAL: At paragraphs 284, 303. 284, 303. PDF pages 146 and 159. So, PDF 146, 159,paragraph 284, 303. Right? So, that's the Delhi Judgment. Then My Lords, I want to cite toYour Lordships Miller's judgment. That's important. I'll just give you three paragraphs of Miller's . Just show where it is... Volume 6, Volume 6, PDF 384. Sorry, sorry, my mistake. I am sorry My Lords, it's my mistake. Sorry. Volume 5. It is not 6. PDF 308, Volume 5. And Ijust, I just.... three paragraphs of that judgment that I would...
CHIEF JUSTICE DY CHANDRACHUD: Volume 5...
JUSTICE SANJIV KHANNA: Volume 5, page number?
KAPIL SIBAL: It's PDF page 30... it's PDF page 323, of Volume 5, straight to the paragraphthat I'm reading.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: 323, para 41. This is the case where My Lords, the Queen was advised toprorogue Parliament. AndJustices came down heavily. Unanimous judgment. You can't justshut away discussion in Parliament. This is an extraordinary My Lords, interpretation showingthat look, you can't just show your back to the Constitutional authority, which has to deal withthese issues. I mean in our Constitution, the right to prorogue is also given to the Government.But, but, but of course, this principle is not really applied often. Now see, 41. Two fundamentalprinciples. If all Your Lordships have it, I'll read it. PDF 323.
JUSTICE SANJIV KHANNA: Page 23?
KAPIL SIBAL: 323 My Lords. Running page 1446 at the bottom. I'm just waiting for Justice Kaul. Two fundamental principles of our Constitutional law are relevant to the present case.The first is the principle of Parliamentary Sovereignty that laws enacted by the Crown in Parliament are the supreme form of law in our legal system with which everyone, includingthe Government, must comply. However, the effect which the courts have given toParliamentary Sovereignty is not confined to recognizing the status of the legislation enactedby the Crown in Parliament as a highest form of law. Time and again in a series of cases sincethe 17th century, courts have protected Parliamentary Sovereignty from threats posed to it bythe use of prerogative powers. And in doing so, have demonstrated that prerogative powersare limited by the principles of Parliamentary Sovereignty. In the context of Jammu andKashmir, you use your prerogative power to erase the role of the Legislature completely. Toerase the opinion of the people of Jammu and Kashmir completely. To silence them throughyour own acts of majoritarian rule, which is a political act according to me. To give only a fewexamples, in the case of proclamations, the Court protected Parliamentary Sovereignty directly by holding that prerogative powers could not be used to alter the law of the land. Three centuries later, in the case of Attorney-General vs De Keyser's Royal Hotel AC 508, the Court prevented the Government of the day from seeking it by indirect means tobypass Parliament in circumventing a statute through the use of prerogative exactly whathappened, in fact, much more, circumventing the Constitution.
CHIEF JUSTICE DY CHANDRACHUD: Mr. Sibal, in a similar discussion, we find in aSeven Judge Bench judgement in Krishna Kumar Singh.
KAPIL SIBAL: Yes.
CHIEF JUSTICE DY CHANDRACHUD: On the power to enact, to promulgate ordinancesand...
KAPIL SIBAL: Your Lordships have said, in that judgement.
CHIEF JUSTICE DY CHANDRACHUD: Though the power is limited by duration andtime, can you bring about irreversible changes by the exercise of the ordinance making power,and we said you can't do that.
KAPIL SIBAL: I've relied on that. Absolutely.If it were an act of Parliament, right, My Lords,the situation may well be different. But then you would have to attack the Legislation itself, ifat all it is permissible. But you're doing something through your prerogative power and makingstructural changes in an embedded constitutional structure recognized by Parliament then in1950. That's the problem in the case. So three centuries later, the courts will....
CHIEF JUSTICE DY CHANDRACHUD: Mr Sibal, we'll look at this, there's no difficulty.We'll look at this. Para 42, the first sentence of para 42.
KAPIL SIBAL: This is 41 and then there are...
CHIEF JUSTICE DY CHANDRACHUD: 42 the first sentence is important.
KAPIL SIBAL: 42 and 50.
CHIEF JUSTICE DY CHANDRACHUD: And 50?
KAPIL SIBAL: 50. Five-zero.
CHIEF JUSTICE DY CHANDRACHUD: At page?
KAPIL SIBAL: Which is PDF page 326.
CHIEF JUSTICE DY CHANDRACHUD: Actually para 50 is the...
KAPIL SIBAL: So My Lord, just 50 is important. It's a very small paragraph. I'll just read it.At PDF page 326. It says, "for the purposes of the present case, therefore, the relevant limitupon the power to prorogue can be expressed in this way, that a decision to prorogueParliament or to advise the Monarch to prorogue Parliament will be unlawful, if theprorogation has the effect of frustrating or preventing without reasonable justification, theability of Parliament to carry out its constitutional functions as a Legislature and as a bodyresponsible for the supervision of the executive. In such a situation, the court will intervene, ifthe effect is sufficiently serious to justify since the exceptional courts. Anyway, so that's I amdone with. Krishna Kumar I'll give the citation only My Lords, because it's Your Lordship'sjudgment.
CHIEF JUSTICE DY CHANDRACHUD: Is it part of the compilation?
KAPIL SIBAL: It's VolumeMy Lords. Yes, it starts at PDF 2, in that volume. Volume 21.And the relevant part, PDF page 82, paragraph 101.
CHIEF JUSTICE DY CHANDRACHUD: Para 101?
KAPIL SIBAL: Para 101 and 103. Re-promulgation in the present case as well, as 103. Andthat's PDF 83. PDF 83, so that's Krishna Kumar for your Lordships. So that's we're donewith this. So this topic now we're done with. Now let's come to My Lords.... My Lords, thatitself, I've said that, 356 is only for temporary emergency legislation. Anyway so, now we cometo My Lords, the judgments because several of the judgments in J&K have interpreted theseprovisions so I just want to bring...
CHIEF JUSTICE DY CHANDRACHUD: Yes.
KAPIL SIBAL: You know, up to speed. Compilation Volume 1.
CHIEF JUSTICE DY CHANDRACHUD: These are judgments on Article 370 itself?
KAPIL SIBAL: That's correct. That's correct. Yes, this one.
CHIEF JUSTICE DY CHANDRACHUD: Which is the first judgment?
KAPIL SIBAL: I'll just give you. Just give me a minute. PDF page 2, My Lords.
CHIEF JUSTICE DY CHANDRACHUD: Which Volume?
KAPIL SIBAL: This is Volume 1, of the judgments My Lords. This is Lakhanpal versusState of Jammu and Kashmir. First matter. I intend to finish today, My Lords so that...
CHIEF JUSTICE DY CHANDRACHUD: Thank You, Mr. Sibal, for keeping to time.
KAPIL SIBAL: Your Lordships have been very kind.
CHIEF JUSTICE DY CHANDRACHUD: I was going to tell you ato' clock when weassembled, but sometimes as a judge, we don't have the heart to do it.
KAPIL SIBAL: No, no I am very much...
CHIEF JUSTICE DY CHANDRACHUD: I am sure you would ...
KAPIL SIBAL: I've already sort of tested your patience more than....
CHIEF JUSTICE DY CHANDRACHUD: No, no. Not at all. Which...
KAPIL SIBAL: My Lords this page, first paragraph.
CHIEF JUSTICE DY CHANDRACHUD: Which page?
KAPIL SIBAL: Page 1, My Lords. PDF page 2. This is a Constitution Bench judgment.Lakhanpal versus State of Jammu and Kashmir.I won't deal with the re-organization,My Lords, the other Senior Counsel will deal with it. But I'll broadly tell Your Lordships whatthe submission is. Then they can deal with it more elaborately. The application of a writ ofhabeas corpus is directed against the State of Jammu and Kashmir, which has by its orderdated 04-10-1955, directed the detention of the petitioner under Section 3, of the Jammu and Kashmir's Preventive Detention Act, hereinafter referred to as the Act. Originally the soleRespondent impleaded for the State of Jammu and Kashmir after the Rule 'nisi' was issued tothe Respondent. The Union of India intervened because the petitioner had challenged thevalidity of the Constitutional Application of Jammu and Kashmir Order 1954. Those are thefacts and the order is set out as PDF 4. PDF 4. Yes, I'm just reading the Order. That's the order,whereas the Government are satisfied that Lakhanpal, Chairman, so and so, there's a view topreventing him from acting in a manner prejudicial. It's necessary to make the order, andtherefore they make the order. Then kindly come to paragraph 4. This order was to remain inforce My Lords foryears but it was extended. It's not contended that you can't extend thisorder. That's how the matter came up. So Your Lordships will find in paragraph 4, 'Actimpugned in this case, provided that it shall remain in force for a period of five years.' Relevantportion is that so, let's skip that My Lords. Then kindly come to paragraph 6, in the quotedportion. My Lords in paragraph 6, PDF 6. 14No law with respect to preventive detention made by the Legislature of the State whetherbefore or after the commencement of the constitutional application to Jammu Kashmir Order1954 shall be void on the ground that it is inconsistent when any of the provisions of this partwith any such law shall to the extent of such inconsistency, cease to have effect on theexpiration of five years from the commencement of the Order, except as respect things run orenvisaged to be done. The effect of the modification inis that such of the provisions of theAct are as consistent with Partof the Constitution shall be valid until the expiration ofyearsfrom the commencement. This is an exception which has been engrafted on the Constitutionin respect of fundamental rights relating to personal liberty for a period of five years. The actitself has a limited life ofyears, thus exception aforesaid, is co-extensive with the life of theact itself. Hence, so long as the Act continues in force in its present form, the provisions o fArticles and 22, insofar as they are inconsistent with the Act and out of the way of theRespondent, and the petitioner cannot take advantage of those provisions. Therefore, there isno question of the provisions of Sectionof the Act being unconstitutional by reason of theirbeing inconsistent withand 22. Then paragraph 8, My Lord, he realized, the petitionerrealizing the difficulty My Lords. We are having the difficulty in the petitioner's way in view ofthe provisions of Clause C, added to Article 35. The Learned Counsel for the petitioner faintlysuggested that Clause C of 35, added by the Presidential Order was itself bad as so theargument further than that provision was in excess of the past conferred by the President, toon the President by 370. No attempt was made on behalf of the petitioner to show how theorder promulgated by the President was in excess of the powers of 370. It was not contentedthat the article did not authorize the President to promulgate the order. What was suggestedwas a promulgating, the order which the President was authorized to make under 370 had exceeded his powers. This argument was ultimately rejected. So the detention was upheld.Then My Lords the next judgment is Prem Nath Kaul. This relates to land and My Lords paragraph.... this is also a Constitution Bench judgement. That is My Lords PDF 8. The suitwas filed by the appellant in a representation.....
CHIEF JUSTICE DY CHANDRACHUD: Lakhanpal nothing really turns much I think.
KAPIL SIBAL: No, nothing much. That's right. That's right. But then those provisions wereextended My Lords from time to time. This particular issue came up My Lords kindly see thisis important page 8. PDF page 9.
CHIEF JUSTICE DY CHANDRACHUD: Para?
KAPIL SIBAL: Paragraph and 7. What happened was My Lord, in dealing with this appeal,it is necessary to relate some detail the events that took place in Kashmir and the constitutionalchanges which followed. Then in order to appreciate fully the background, a clearunderstanding of this background will therefore deal with the appellant's case in this properperspective. In 25, Hari Singh succeeded Pratap Singh as a ruler. It appeared that for sometime prior tothere was public agitation in Kashmir for establishment of responsiblegovernment. Presumably as a sequel to the said agitation Hari Singh issued Regulation of 91.The regulation began with the statement of policy that it has a declared intention of theMaharaja to provide for the association of its subjects in the matter of legislation and theadministration of the State, and that it was in pursuance of the said intention that theregulation was being promulgated. Regulations consisted of 46 sections which dealt with thelegislative, executive and judicial powers of the Maharaja, referred to the subjects which hadto be reserved for the operation of regulation based provision for the Constitution of theLegislative Estate, confers authority on the Council to make rules for specified purposes. It is relevant to refer to only two sections of this regulation. Sectionprovides that all powerslegislative, executive, and judicial in relation to the State and its Government are herebydeclared to be and to have been always inherent and possessed and retained by His Highnessthe Maharaja of Jammu and Kashmir and nothing contained in the regulation shall affect ordeem to affect the right or the prerogative of His Highness to make it past regulations.... TheseRegulations... passing of these regulations was challenged and ultimately the court held. Butthis power is retained by the Maharaja, so therefore you can't really challenge them. Despitethe fact that, My Lords we are in the year 1959, so those powers continued and ultimately MyLords, the Court upheld them. My Lords, kindly see paragraphat PDF 10. Meanwhile, theinvasion of the state had created tremendous popular fervour and patriotic feelings in resisting the act of aggression and this popular feeling inevitably tended to exercise pressure on the Maharaja for introducing responsible and popular government. Maharaja tried to pacify thepopular demand by issuing a proclamation on March 8, 1948. By this proclamation, the State,he stated that, in accordance with the traditions of his dynasty, yet from time to time providedfor increasing association of his people with the administration of the state with the object ofrealizing the goal of full responsible government at as early a stage as possible. And he addedthat he had noted with gratification and pride the progress made so far and the legitimatedesire of his people, for the immediate establishment of fully democratic constitution basedon adult franchise with a hereditary ruler from his dynasty, from his dynasty as theconstitutional head of an executive, responsible to the legislature. Remember, by this time the1957 Constitution of Jammu and Kashmir had come into play. So the argument was, how doyou expect this Maharaja to continue with the power, when we have a Constitution of our own? So, therefore, this power and this proclamation issued by him is bad. It's in that context, thatthe judgment is rendered. It appears that before this proclamation was issued, the Maharajahad already appointed Sheikh Muhammad Abdullah, who was then the popular leader of thepeople and the head of the emergency administration. By the proclamation, the Maharajareplaced the emergency administration by popular interim government. It provided for hispowers, duties and functions pending the formation of fully democratic government. Clause 1of proclamation provides for the composition of the Ministry, Your Lordships may leave that.Straightaway come to para 23.
CHIEF JUSTICE DY CHANDRACHUD: Which paragraph?
KAPIL SIBAL: PDF page 14, paragraph 23. This was the contention of the... in the suit whichultimately came to the Supreme Court. The validity of the act is impeached mainly on theground that Yuvraj Karan Singh had no authority to promulgate the said act. It is thisargument which has been urged before us by Mr. Chatterjee in different and alternative forms,needs careful examination. The first attack against the competence of Yuvraj proceeds on theassumption at the time when the Maharaja Hari Singh conveyed his powers to Yuvraj by his proclamation at 49, he was himself no more than a Constitutional Monarch, and as such, hecould convey to Yuvraj Karan Singh no higher powers. Let us first deal with this argument.Prior to the passing of the Independence Act, the sovereignty of Maharaja Hari Singh over the State of Jammu Kashmir was subject to such limitations, as were constitutionally imposed onit by the paramountcy of the British Crown, and by the treaties and agreements entered intobetween the rulers of the State and the British Government. It cannot be disputed that so faras the internal administration and governance of the State were concerned, Maharaja HariSingh, like his predecessors, was an absolute monarch, and that all the powers, legislative, executive and judicial in relation to his State and its governance inherently vested in him. Theposition has been emphatically brought out by Sectionof the regulation. Though by thisregulation, Hari Singh gave effect to his intention to provide the association of his subjects inthe matter of legislation and administration. By Section 3, he fully preserved to himself all theexisting legislative, executive, and judicial powers. Section 3, not only preserves the saidpowers, but expressly provides that nothing contained in the regulations shall affect or deemto have affected the right and prerogative of His Highness. My Lords, Your Lordships mayleave this now. And then it is, however, urged that the constitutional position substantiallyaltered by the subsequent Constitutional Act of 1996. While we are unable to accept thisargument,andof this act in terms continue to preserve the powers, legislative, executiveand judicial as well as the right and prerogative of His highness, just as Sectionof theRegulation of 1991. So, My Lords they uphold it even though there is a Praja Sabha at thattime. They said the Maharaja's powers are intact. Of course the situation is completelychanged now. You no longer have the Maharaja. So, now all the powers are with the legislature.So, in a sense, this is a pre-1957 situation which preserve the power of the Maharaja till MyLords the Maharaja had to give up his powers. So let's not... let's quickly now.... Now kindlysee 34. Just one minute, My Lords. 34, PDF 19. Having provided for the legislative power ofParliament and for the application of the Articles of the Constitution. Article 370, Clause 2 prescribes that if the concurrence of the Government of the State required by the relevantsubclauses of Clause 1, has been given before the Constituent Assembly of Kashmir has beenconvened, such concurrence shall be placed before such Assembly for such decision as it maytake thereon. This is what I was saying in the morning as well. Even in respect of laws passedMy Lords, the concurrence of the Constituent Assembly was necessary. This clause shows thatthe Constitution makers attach great importance to the final decision of the ConstituentAssembly. And the continuance of the exercise of powers conferred on Parliament and thePresident by the relevant temporary provisions of 371 is made conditional on the final approvalby the said Constituent Assembly in such matters. Clauseauthorizes the President to declareby public notification that this Article shall cease to be operated or shall be operative only withspecified exceptions and modifications. While this power can be exercised by the Presidentonly if the Constituent Assembly of the State makes recommendations in that behalf. This isalso a Constitution Bench judgment.
CHIEF JUSTICE DY CHANDRACHUD: Which para is this, Mr. Sibal?
KAPIL SIBAL: This is para 35.
JUSTICE SANJIV KHANNA: What's the year of the judgment?
KAPIL SIBAL: 1959. Sorry, give the year please. '59, '59. After the Constitution of Jammuand Kashmir [UNCLEAR]. And this is a Constitutional Bench, My Lord. 'Clauseauthorizesthe President to declare, by public notification that this Article shall cease to be operative orshall be operative only, with specified exceptions or modification. But this power can beexercised by the President only if the Constituent Assembly of the State makesrecommendations on that behalf. Thus, the proviso to Clausealso emphasizes theimportance which was attached to the final decision of the Constituent Assembly of Kashmirin regard to the relevant matters covered by 370.' This is how this Court also understood it.The appellant contends that the scheme of this Article clearly shows that the person who wouldbe recognized by the President as the Maharaja of Jammu and Kashmir was treated as no morethan a constitutional ruler of the state. In regard to matters covered by this Article, he couldnot function or decide by himself and his own discretion. The Constitution contemplated bythis Article, had to be with the Maharaja acting on the advice of the Council of Ministers andthe concurrence prescribed by it had to be similarly obtained and given. And that brings outthe limitations of the powers of the Maharaja. It is also were to the final decision in thesematters has been deliberately left to the Constituent Assembly, which was going to beconvened for the framing of the Constitution of the State and that again emphasizes thelimitations imposed. This argument assumes that under Article 370, Sub-Article (1), it is theperson recognized by the President or the Maharaja, who has to act on the advice of the Councilof Ministers in relation to matters covered by 370. But it is possible to take the view that thesaid clause really indicates that in recognizing any person as the Maharaja of the State, thePresident has to act on the advice of the Council of Ministers for the time being in office underthe Maharaja's proclamation dated 5th March 1948. If that be the true construction of theexplanation, then the argument that before the Maharaja is consulted or his concurrence isobtained, he must act on the advice of the Ministers would not be valid. We would, however,like to deal with the argument, even on the assumption that the construction put by theappellant, the explanation is right, and then they deal with it. On the said construction, thequestions which falls for consideration is, do the provisions of 370 affect the plenary powersof the Maharaja in the matter of governance of the State? 'The effect of the application of thepresent Article has to be judged in the light of its objects and it's terms considered in thecontext of special features of the constitutional relationship between State and India. The Constitution makers were obviously anxious that the said relationship should be finallydetermined by the Constituent Assembly of the State itself.' Mark these words, please. 'That itis the main basis and purpose of the temporary provisions made by the present Article. Andso the effect of its provisions must be confined to its subject matter.It would not be permissibleor legitimate to hold that by implication, the Article sought to impose limitations on the plenary legislative powers of the Maharaja. These powers had been recognized and specifically provided by the Constitution Act of the State itself, and it was not and could not have been within the contemplation or competence of the Constitution makers to impinge even indirectlyon the said powers. It could be recalled that the Instrument of Accession those powers havebeen expressly recognized and preserved, and neither the subsequent proclamation issued byYuvraj adopting as far as it was applicable, the proposed Constitution of India, nor theConstitution Order, subsequently issued by the President, purported to impose any limitationsof the said legislative power. What form of government the state would adopt was a matterwhich had to be and naturally was left to be decided by the Constituent Assembly of the State.Until the Constituent Assembly reached its decision on that behalf, the Constitutionalrelationship between the State of India continued state in India continued to be governedbasically by the Instrument of Accession. It would therefore be unreasonable to assume thatin the application of 370 could have affected or was intended to affect the plenary power. Sothis is how this Court... Constitution Bench of this court interpreted 370. And then My Lords,they referred to 245, 254 and say that those provisions were not applicable anyway. Then itsays it is difficult to see how this article supports the appellant's contention. In fact, it is noteasy to appreciate what the application of this article to the state meant. As we've alreadypointed out, the application of the specified articles to the State was not intended to affect andconstitutionally could not have affected the form of government prevailing in the state and theplenary legislative powers of the Maharaja. And that My Lords all this was, the rest is... So thatgives you an indication as to what how a Constitutional Bench of this court looked at 370 andin the context of the Constituent Assembly, leaving it to the Constituent Assembly to decideupon the relationship between the State and the Union of India at that point in time. The nextis My Lords Lakhanpal of [UNCLEAR] this is not necessary. This is the second LakhanpalMy Lords, where My Lords the detention... Again, he challenges detention. And the detention... The law and detention was extended toyears, and therefore, that detention wasalso upheld. So we'll skip My Lord, the second Lakhanpal. Yes. sorry. The second one SampatPrakash detention. This is a case My Lords where members were sent by at the instance ofthe legislative... legislature to the...to Parliament on a recommendation on the Legislature,which was a special provision in 81 of the Jammu Kashmir's Constitution, and said that, look,there can be no direct election. It has to be three of them. Part of a few of them have to be atthe instance of the Legislature on the recommendation of the legislature. Really speaking thecore issue is..... My Lords this was a case of detention. Again a case of detention. And kindlycome to paragraph and the Law of Detention was extended from time to time till it was for 15 years at a stretch and that detention order was challenged. But My Lords see that PDF 29 paragraph starting the first argument. Continuation of paragraphMy Lords, at PDF 28. He 69challenged his detention order and the first argument he made was the following. PDF 20. MyLord has that?
CHIEF JUSTICE DY CHANDRACHUD: They say that the power of the President to makemodifications is of the widest amplitude?
KAPIL SIBAL: That's Lakhanpal.
CHIEF JUSTICE DY CHANDRACHUD: That's Lakhanpal, yeah.
KAPIL SIBAL: Lakhanpalright?
CHIEF JUSTICE DY CHANDRACHUD: And the power to make a modification includesthe power to make an amendment to the Constitution?
KAPIL SIBAL: Yes, yes. And that is also with the concurrence My Lords,. It is not withoutconcurrence. That's not without concurrence.
CHIEF JUSTICE DY CHANDRACHUD: Yes, that's right,. That concurrence is not anissue there.
KAPIL SIBAL: I am just saying My Lords, it's not in the absence of concurrence.
CHIEF JUSTICE DY CHANDRACHUD: Obviously.
JUSTICE SANJIV KHANNA: But 368 is therefore not really applicable as well, becauseyou are not amending the main Constitution?
KAPIL SIBAL: That's right. That's right. Absolutely right. Now doubt about it. Now MyLords, in this Sampat Prakash, PDFand I am inviting My Lords to paragraphat PDF28, at 29. The PDF 29, the first argument. The first argument, My Lord, has that? The firstargument was that, this article contained temporary provisions which ceased to be affectedafter the Constituent Assembly convened for the purpose of framing the Constitution ofJammu and Kashmir. Had completed its task by framing the Constitution of that State.Reliance was placed on the historical background in which Article 370 was included in theConstitution to urge that the powers under the Article were intended to be conferred only forthe limited period under the Constitution of the State was framed, and that the President could 70not resort to them after the Constituent Assembly was completed, had completed its work byframing the Constitution of the State. The background of the legislative history to whichreference was made, was brought to our notice by Learned Council by drawing attention to thespeech of Gopalaswami Ayyangar, which Your Lordships read, when he moved in theConstituent Assembly, Clause 306(a) of the bill which now corresponds to 370. It was statedby him, the conditions, I will leave that out My Lords. Then para, further down My Lords, afterthose seven items. Learned counsel urged that in this background, 370 of the Constitutioncould only have been intended to remain effective until the Constitution of the State wasframed, and the will of the people of Jammu and Kashmir had expressed. And thereafter, thisarticle must be held to have become ineffective so that the modifications made by the Presidentin exercise of the powers under this Article, subsequent to the enforcement of the Constitutionof the State would be without any authority of law. The Constitution of the State came intoforce onJanuary '56, and therefore the two orders 59 and 64 passed by the President inperpetrated exercise of power under 370 were void. It was also urged that the provisions of Clause of Article 370 support this view. It would also urge that the, support this view becauseit directs that if the concurrence of the Government of the State is given under paragraph of sub para, Subclause D of Clause 1, or under the second proviso to Subclause D of that clausebefore the Constituent Assembly for the purpose of framing the Constitution of the State isconvened, that concurrence had to be placed before such Assembly for such decision as it maytake thereon. From this, it was sought to be inferred that the power of the President, dependingon the concurrence of the government of the State, must be exercised before the dissolution ofthe Constituent Assembly of the State so that the concurrence could be placed for its decision,and that power must be held to cease to exist after the dissolution of the Assembly. We are notimpressed with either of these two arguments advanced by Ramamurthi. So far as thehistorical background is concerned, the Attorney General, appearing on behalf of government,relied on it to urge, that the provisions of 370 should be held to be, continuing in force. This isimportant "continuing in force" because the situation that existed when this Article wasincorporated in the Constitution had not materially altered, and the purpose of introducingthis article was to empower the President to exercise its discretion in applying the IndianConstitution while that situation remained unchanged. There is considerable force in thissubmission. The legislative history of this Article cannot in these circumstances be of anyassistance, but holding that the Article became ineffective after the Constituent Assembly ofthe State that were to frame the Constitution. And then My Lords, ultimately parais important. 'There are, however, much strongerreasons for holding, to the provisions of this Article continued in force and remain effectiveeven after the Constituent Assembly of the State passed the Constitution of the State. The most important provision in this connection...' Kindly note that, 'is contained in Clauseof theArticle,' which lays down that, 'this article shall cease to be operative or shall be operative onlywith such exceptions and modifications, and from such date as the President may specify, bypublic notification provided that the recommendation of the Constituent Assembly of the Statereferred to in Clause 2, shall be necessary before the President issues a notification.' My Lordsthat's what I was trying to tell, My Lord Justice Khanna. 'Before', this is a Constitutional Benchjudgment. This clause clearly envisages that the Article will continue to be operative and ceaseto be operative only if, on the recommendation of the Constituent Assembly. President maymake a direction to that effect. In fact, no such recommendation was made by the ConstituentAssembly of the State, nor was any order made by the President declaring that the Article shallcease to be operative. On the contrary, it appears that the Constituent Assembly of the Statemade a recommendation that the Article should be operative with one modification to beincorporated in the explanation of Clauseof this Article. This modification in the Article wasnotified by the President of the Ministry of Law C.O. 44, dated 15th of November '52, and laiddown that the 17th November '52, the Article was to be operative with substitution of the newexplanation for the old explanation as it existed at that time. This makes it clear that the Constituent Assembly of the State did not desire this Article should cease to be operative andin fact expressed it's agreement to the continued operation of this Article for making hisrecommendations and should preserve...
JUSTICE SANJIV KHANNA: Just one minute.
KAPIL SIBAL: The next submission made for challenging the validity of the orders ormodifications made in 59 and 64 was, that Sub-Clause (d) of Clause 1, of 370, the power thatis conferred on the President is for the purpose of applying the provisions of the Constitutionof Jammu and Kashmir, and not for the purpose of making amendments in the Constitutionas applied to that State. The interpretation sought to be placed was that, at the time of applyingany provision of the Constitution of the State of Jammu and Kashmir, the President iscompetent to make modification exceptions therein. But once any provision of the Constitution has been applied, the power under 370 would not cover any modification in theConstitution as applied. Reliance was thus placed on the nature of the power conferred on the President to urge, that the President could not from time to time amend any of the provisionsof the Constitution as applied to the State of Jammu and Kashmir. It was further urged thatthe Presidential Power under 370 should not be interpreted as applying Sectionof the General Clauses Act because the constitutional power cannot be equated with the powerconferred by the Act. My Lords the Court ultimately relied on 21. The argument and our opinion proceeds on anentirely incorrect basis. Under 371 (d), the power of the President is expressed by laying downthe provisions of the Constitution other than Article 1, of 370, which under 371(c) became applicable when the Constitution came into force. Shall apply in relation to the State of Jammu Kashmir, subject to the exceptions and modifications of the President may order specify. Whatthe President is required to do is to specify the provisions of the Constitution which are toapply to the State of Jammu Kashmir, and when making such specification he is alsoempowered to specify exceptions and modifications to those provisions. As soon as thePresident makes such a specification provisions become applicable to the State, with aspecified exception for modification. The specification by the President has to be inconsultation with the Government of the State if those provisions relate to matters in the unionlist and the concurrent list specified in the Instrument of Accession governing the accession ofthe State of the dominion of India as matters with respect to which dominion Legislature willmake law. Specification with respect to all other provisions that is, Sub-Clause(d) Clause of 370 has to be with the concurrence of the State Government. Any specification made after suchconsultation or concurrence has the effect of the provisions of the Constitution specified withexceptions and modifications become equivalent to the State of Jammu and Kashmir cannotbe said held at the nature of the power contained in this provision is [UNCLEAR] Section19 must be held to be totally inapplicable. 20That's it My Lords as far as... No parasorry. It was also urged... para 14, PDF My Lord 33.It was also urged as a power of making modifications and exceptions in the orders made byArticle 371(d) should at least be limited to making minor observations, not cover the part ofpractically abrogate an article of the Constitution applied. That submission is clearly withoutforce. Challenge to the validity of 35(c) introduced in the Constitution as applied to JammuKashmir of this grant was withheld by the court in Lakhanpal. Subsequently, the scope ofthe powers making exceptions and modification was examined. So My Lord, as long as theexceptions or modifications are made with consultation or concurrence, depending on theInstrument of Accession or the concurrent list matters, My Lord, there's no issue at all, thePresident could do it. But beyond that My lords... My Lords now therefore now this is the casethat the other side is relying upon that's 367. This is the important case that is PDFsamevolume. Maqbool Damnoo, it's apetition. Again a detention matter. After this I'll touchit for 5-10 minutes on the Re-organization Act and the rest others can do. My Lords Mr. Garg,this is again a detention matter, who appeared on behalf of the petitioner raised the followingpoints, paragraph 6, at page 40. Very inspirational lawyer Mr. Garg was. He would be sittingat the back of this court and pretend to be sleeping. When he would suddenly wake up, hewould suddenly wake everybody up including himself and he will tell the court that they were wrong or they were right. An amazing personality and wedded to the cause of... at least inmatters of preventive detention, and always appearing for the weak and for the marginalized.Always. We owe him a lot. Mr. Garg who appeared on behalf of the petitioner, raised thefollowing points before us. The Jammu Kashmir preventive detention herein referred to as theAmending Act was invalid as it was ascended to by the Sadr-e-Riyasat ....not invalid as wasnot ascended to by the Sadr-e-Riyasat. It was ascended to by the Governor, but he said theSadr-e-Riyasat was directly elected. The Governor was not directly elected, so therefore thisis completely unconstitutional because he did not give his assent to it. The proviso inserted by 4(2) of Sectionis bad because it suffers from excessive delegation. There has been noviolation of Article 21. 22. At any rate, the proviso is bad because it conflicts with Section 103 of the Constitution. Detention order is bad because the detaining authority has not applied itsmind and the Order of Detention is bad if it is not served or executed in accordance with law.In support of his contention, Learned Counsel urged the 370 was the only authority which isrecognized as the government of the State of Jammu Kashmir is the Sadr-e-Riyasat. 370 contemplate that Sadr-e-Riyasat would be the head of the State of Jammu Kashmir andJammu Kashmir's assembly had no power to abolish the office of Sadr-e-Riyasat. He furtherurged that Section 147 of the Constitution, which I've read to Your Lordship, also contemplatesthat the Sadr-e-Riyasat shall exist and be the head of state. He urged that the only possibleway of getting rid of the Sadr-e-Riyasat would be to amend the Constitution of India, asapplied to Jammu and Kashmir. Learned Attorney General who appeared on behalf of the Government. Mr. Chagla, who appeared for the State, contended that the Constitution of Jammu Kashmir, which had received the assent of the Sadr-e-Riyasat, validly amended theConstitution of Jammu Kashmir and validly provided for appointment of a Governor in placeof Sadr-e-Riyasat. And therefore, the Governor was competent to give assent to the JammuKashmir Preventive Detention. That was this limited issue. That the Sadr-e-Riyasat wasdirectly elected, Governor was appointed. The Sadr-e-Riyasat never gave its consent. Therefore, this detention law where the Governor gave consent is bad. Then straight awayMy Lords. Paragraphat PDF 42. On January 26, 1950, theConstitution Application Jammu Kashmir Order, 1950 was made by the President. On April 20, 1951, the Maharaja of Jammu Kashmir issued a proclamation, in pursuance of which theConstituent Assembly of Jammu Kashmir was convened on November 5, '51. On June 10, 1952,the basic principles of the Committee of Jammu Kashmir Constituent Assembly submitted aninterim report. Then para 14. The Constituent Assembly by a resolution adopted theserecommendations. The following part of the resolution is relevant. Now, therefore, inpursuance of the resolution datedJune '52, and having considered the report of the DraftingCommittee, this Assembly resolved that the head of the State, shall be the person recognized 74by the President of Union, on the recommendations of the Legislative Assembly. Later on MyLords, it was directly appointed. The Head of State shall be the person... he shall hold officeduring the pleasure of the President. He may, by writing under his hand addressed to thePresident, resign his office. Subject to the foregoing provisions, the head of State and holdoffice for the term of five years from the date he enters upon his office. And then, My Lordsprovided that he shall not withstanding the expiration of his term, continues to hold officeuntil his successor enters. There's the recommendation of the Legislative Assembly of theState, in respect of recognition of Head of State shall be made by election. Then My Lords,November 16, 1952. The explanation was My Lords, in a way it was amended by arecommendation of the Constituent Assembly. Just mark that. In exercise of the powersconferred by this article, the President, on the recommendation of the Constituent Assemblyof the State, declared that, as from 17th day of November, the said 370 shall be operative withthe modification that for the explanation in Clause there of, the following explanation issubstituted. For the purpose of this article the Government of the State means, the person forthe time being recognized by the President, on the recognition of the.... on therecommendation of the Legislative Assembly of the State as the Sadr-e-Riyasat of Jammu andKashmir, acting on the advice of the Council of Ministers. So, when this argument was raised,the court ultimately came to the conclusion that in essence, this Sadr-e-Riyasat is a Governor,so there is no substantial change. Then go directly toMy Lords, PDF, page 44. I am trying to hasten the pace so that... OnNovember 1756, Jammu and Kashmir's Constitution was adopted. Some sections came intoforce on the day of the.... and remaining sections came into force in '57. Then My Lords, fewlines thereafter on November 24, '65. This is important. The President, in exercise of thepowers by Clauseof Article 370 with the concurrence of the government of Jammu andKashmir made the Constitution Application to Jammu Kashmir's Second Amendment Order1965 for Sub-Clause B of Clauseof 367. Your Lordships sees that? The following clauses wereinserted. References to the person for the time being enforced, recognized by the Presidentfrom the Recommendation of Legislative Assembly as the Sadr-e-Riyasat acting on the adviceof the Council of Minister of the State for the time being in office, shall be construed asreferences to the Governor of Jammu and Kashmir, and references to the Government of thesaid State shall be construed as including references to the Governor of Jammu and Kashmir,acting on the advice of the Council of Ministers. Then in paragraph 21, according to the Attorney General this is a mere definition inserted for the purpose of the Article in accordancewith the constitutional conditions prevailing at that time. What are the constitutionalconditions My Lords? Every State had a Governor. He was not directly elected. AndConstitution of Jammu Kashmir itself stood amended in 1965 and the head of the State was to be the Governor. So, according to the Attorney General, this is a mere definition inserted forthe purpose of the Article in accordance to the constitutional conditions prevailing at the time.According to Mr. Garg, this is the kingpin of the whole relationship between the Union ofIndiaand the State of Jammu and Kashmir. According to him, neither the Jammu and Kashmir Assembly nor the President were competent to impair the functioning of the Sadr-e-Riyasat.Insofar as the Constitution of Jammu and Kashmir 6th Amendment Act 1965 replaced theSadr-e-Riyasat by the Governor is his ultra vires. According to him, either there has to be anamendment to the Constitution of India under 368 and 373 or a fresh Constituent Assemblyhad to be convened to amend the explanation. He said that if the text of the Constitution isexplicit. Effect must be given to it. And it is not the duty of the courts to improve upon theConstitution because the Constitution makers had not anticipated it. So, My Lords the Courtrejects that argument. And then My Lords at page 24, this para 24, is the heart of the matter.The learned counsel, relying on Sampat Prakash, contended that the only way of modifying370 is specified in Article 370, Sub-Article 3, itself. He said that this was expressly laid downby this court in a decision referred to. We are not concerned with the question whether Article 373 can now be utilized to amend the provisions of 371 or 2, and therefore we do not expressany opinion on that point. We are now not concerned with an amendment to Article 370, Sub18 Clause 1. We are concerned with the situation where the explanation ceased to operate. It hadto be... It has ceased to operate because there is no longer a Sadr-e-Riyasat in Jammu and Kashmir. Now My Lords next is important. 'If the definition contained in the explanationcannot apply to the words Government of the State, since the meaning of Article 367(4), asamended, will have to be given to it. It is this meaning, if this meaning is given, it is quite clearthat the Governor is competent to give the concurrent stipulated in Article 370.' And then MyLords kindly come straight away to para 29.
CHIEF JUSTICE DY CHANDRACHUD: Para?
KAPIL SIBAL: PDF page 47. I My Lords, your ...PDF page 47. If we had regarded this as anamendment to Article 370 Clause 1, then we would have to consider whether the amendatorypowers had been validly exercised or not. But as we have said, we're not concerned with thatquestion.
CHIEF JUSTICE DY CHANDRACHUD: Which para is this?.
KAPIL SIBAL: This is 29.
CHIEF JUSTICE DY CHANDRACHUD: 29.
KAPIL SIBAL: Yes. So, clearly My Lords Damnoo is not for a proposition that you canamend 370 in this process by virtue of 367(4). That's what the Union has tried to apply thatDamnoo has already decided this issue. Now I am finished with the judgments also. Now I'mleft with the last which I'll finish byo' clock,more minutes.
CHIEF JUSTICE DY CHANDRACHUD: That's the re-organization.
KAPIL SIBAL: That's the Re-organization Act. Now My Lords, let's go to the...First of all...So,Jammu and Kashmir...Constitution of India as applicable to Jammu and Kashmir, Article 3.This is My Lords at document Volume 2. Sorry 1, not 2. PDF page 65, ArticleMy Lords. So,I've shown Your Lordships the proviso already in Article 3, My Lords, that no bill shall beintroduced in Parliament without the consent of the Legislature of the State. And I've shownto Your Lordships the August 5, the bill was introduced. Now see the Constitution of India,along with this Articleof the Constitution. I'll just make a brief argument so that My Lordsthen others can...
CHIEF JUSTICE DY CHANDRACHUD: Article 3, right?
KAPIL SIBAL: Constitution of India Article 3. Formation of new States and alteration ofareas, boundaries or names of the existing States. Parliament may by law... My Lords havethat? May by law form a new State by separation of territory from any State. So if you have alarge State, you can form a new State by separation of territory of a new State, or by unitingtwo or more States. So you can form a new State by uniting two or more States or parts ofStates or by uniting any territory to a part of any State. That's the way you form States MyLords, or you bifurcate states, increase the area of any State, diminish the area of any state,alter the boundaries of any State, alter the name of any State. Provided that no bill for thepurpose shall be introduced to either House of Parliament, except on the recommendation ofthe President, and unless with a proposal contained in the bill affects the area, boundaries, orname of any of the States. The bill has been referred to by the President of the Legislature ofthat State for expressing its views thereon. Within such period as may be specified in thereference or within such period as the President may allow, the period so specified or allowedhas expired. Explanation- this is important. In this Article in Clause A to E, State includes aUnion Territory, but in the proviso State does not include a Union Territory. The power.... thenexplanation two. The power conferred on Parliament by Clause A includes the power to forma new State or Union Territory by uniting a part of any State or Union Territory to any otherState or Union Territory. Now My Lords if you're going to read in explanation one, State includes an Union Territory. Let's go back to My Lords definition now. let's see how it fits in.So now you say, form a new Union Territory. Let's read the word instead of State as UnionTerritory. If you My Lords substitute the word Union Territory wherever the word State isused, this article will make no sense and I will read it in that fashion. Form a new Unionterritory by separation of territory from any Union Territory.
CHIEF JUSTICE DY CHANDRACHUD: No. That could be by separation of territory fromany State.
KAPIL SIBAL: That's correct. So therefore you can't read therefore only in the first part, youread Union Territory. That's my submission. In other words, form an Union Territory byseparation of territory from any State. You can do that or by uniting two or more States, youcan have a Union Territory or parts of States. You can have a Union Territory or by uniting anyterritory to a part of any State. How can you create an Union Territory for Jammu and Kashmirunder this Article? You can't do it. You can carve out a Union Territory. You can't create aUnion Territory under Articleand convert it into a State into a Union Territory. That'scontrary to all principles of representative form of government. It doesn't allowextinguishment of a State completely. Can you say that tomorrow Madhya Pradesh would be a Union Territory or Bihar would be a Union Territory. You can do to one, you can do it to all.You can have a presidential form of government. Create all States. Convert all States intoUnion Territory. By what stretch of imagination can you...?
CHIEF JUSTICE DY CHANDRACHUD: What about textually?
KAPIL SIBAL: I'm sorry?
CHIEF JUSTICE DY CHANDRACHUD: Textually. The other argument is a first, but youcan't do it because you said representative democracy. But textually can you not do it?
KAPIL SIBAL: No. Because I'm saying you have formed Union Territory by separation of aterritory from a State. From any State or by uniting two or more States or parts of a State. Thisis not that exercise at all. You have created two Union Territories from a State. Where is thatpower? My Lords, there are multiple categories. What they have done doesn't fall in any of thesecategories. You can carve out a Union Territory. If you have two or more States come together,you can carve out a Union Territory. If a part of a state you can carve out a Union Territory. But you can't create two Union Territories in a State. How is that possible? Apart from whatMy Lord said, representative form of government. You can't My Lords. You are not going backMy Lords, moving away from a representative form of government. This is not a reverse. Thatwas possible. My Lords, you could have kept Ladakh, My Lords as a Union Territory. I am sorry. I am sorry. I won't go into it my colleagues will, which tells you as to how the Unionthought as to how Union Territories are to be created. In 1953, way back there is a State Reorganization Commission. My Lords my learned friend will refer to it I don't want to MyLord do that. But essentially, there are two aspects to this. The text of the Constitution doesn't allow you to do that. And the Fundamentals of Constitutional Democracy don't allow you todo that. You can't go back in time, move from representative...
CHIEF JUSTICE DY CHANDRACHUD: My judgment in NCTtraces the history of howwe had the part A, part B, part C state. How then after the 7th Amendment you replaced thepart B and part C States, and the Union Territories were created.
KAPIL SIBAL: And NCT Judgment deals with asymmetric federalism. It's a case ofasymmetric federalism. Of course now they have done something else with that YourLordships will hear now. Otherwise, My Lords, this power can be exercised at any time. MyLord, where is the voice of the people of Jammu and Kashmir? Where is the voice ofrepresentative democracy?years have passed. Have you heard My Lords any representativeform of Government? Can you convert a whole State My Lords? This way the whole, all ofIndiacan be converted. This power is given. And My Lords, the proviso said you have to take theconsent. You do away with that through an executive act. You don't even take their views. You become the legislature yourself. So where do we stand, My Lords? We stand at a situationwhere My Lords, though the Constitution is a political document, its provisions can't bemanipulated and manoeuvred for political ends. It cannot be. That's not how you interpret aConstitution. It is a political document but you cannot politically misuse it and manoeuvre itand manipulate it, which is what has been done. That can't be done. And even when there is aclash of arms, the law is never silent. The law is not concerned with that. The court is neversilent. And when the.... whenever the court has been silent, the consequences have beendisastrous. It's time for Your Lordships... and My Lords what is a Constitution? A Constitutionis a set of values, values on the basis of which people will represent themselves, and their voicewill be heard. If you, through such executive acts, silence the voice of the people, what is leftof democracy? All that I can say to Your Lordships, is that this is a historic moment. Historicnot for the present, but for the future of India. And I hope this court is not silent. Thank you.
CHIEF JUSTICE DY CHANDRACHUD: Thank you very much.