Article 370 Case Hearing (Day 16):Senior Advocate Kapil Sibal concludes his arguments
New Delhi:The Supreme Court will continue hearing the petitions challenging the repeal of the special status of Jammu and Kashmir under Article 370 of the Constitution.
The Constitution Bench led by Chief Justice of India DY Chandrachud is likely to conclude the arguments today.
What are the arguments of Kapil Sibal?
Sibal: Let the court speak on behalf of people of India because this court or any government acts for people of India. And it should not be that acts of India should be done when a part of the people of India are silenced…
Sibal: How can they make a state into a UT? Under what provison of law? Under what power? There may be a national security situation. But that national security situation can be dealt with under 352. 352-359 deals with that. So how can you use Article 3?
Sibal: Then it is also not their case that they did it for national security. Pulwama happened in Feb 2019 during president’s rule. And then they held elections in May 2019. What is the justification of not constituting the state for 4.5 years?
Sibal: 370 says “may” not “shall”. Where is the question of impossibility?
Sibal: Now coming to impossiblity- an argument not raised in counter affidavits…If there is a constitutional obligation to be performed and it has to be performed, then the principle of impossibility comes is…where is the obligation for 370?
Sibal: Once the dissolution took place, 356 could not be imposed. Any act of dissolution has to take place after the aid and advice of council of ministers.
Sibal: If you give such power to parliament under 356, anything can happen. I’m digressing a bit but with respect to Maharashtra, I said that if Maharashtra is upheld, it will happen again and it happened in Maharashtra itself.
Sibal: If you look at Article 371- it starts with “Notwithstanding anything in the Constitution”…368 would not apply to any provision of the Constitution in this chapter (Chapter XXI). Is that not against basic structure?
Sibal: As far as J&K was concerned, they had an added proviso. That constitutionally means that the complete merger we’re talking about de hors the proviso could not be done.
Sibal: How can they make a state into a UT? Under what provison of law? Under what power? There may be a national security situation. But that national security situation can be dealt with under 352. 352-359 deals with that. So how can you use Article 3?
Sibal: If you have to uphold (CO) 272 and 273 you will have to uphold it on its own terms.
Sibal: When it comes to 370(1)(b), you have to consult or concur. If it comes to 370(1)(d), again consult and concur. When it comes to 370(3), you can abrogate without consultation or concurrence? How can that interpretation ever be accepted by a constitutional court.
Sibal: Then it is also not their case that they did it for national security. Pulwama happened in Feb 2019 during president’s rule. And then they held elections in May 2019. What is the justification of not constituting the state for 4.5 years?
Sr Adv Gopal Subramanium: It might have been a temporary provision initially. But the provision has adequate evidence to suggest that it could be there to stay. This is the crux of the matter.
Subramanium: It was the Constitution of India that gave the people of J&K to have the ability to determine their political future.