[Article 370 hearing] Power under Article 3 does not extend to effacing a State into Union Territory, Supreme Court told

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Sibal told the Constitution bench today that the central question was whether the Union could constitutionally terminate a relationship envisaged under Article 370. He added that the abrogation was politically motivated and the impugned executive orders were political acts.

Senior Advocate Kapil Sibal today concluded with his submissions in the pleas challenging abrogation of Article 370 of the Constitution of India that granted special status to erstwhile Jammu and Kashmir.

The Senior lawyer told a five-judge bench today that the power under Article 3 of the Constitution does not extend to effacing the character of a State into a Union Territory.

"...therefore it is the interaction of the constitutional values of federalism, separation of powers etc. that are at play..which we have to see if it is unlimited..Is it an unlimited power that can be used to make permanent and irreversible changes.. can constituent power be equated with ordinary legislative power..can constitutional change happen without consultation with the people of J&K, despite an express provision in that regard..Can the union change a state into a UT without a consultation with the people of that state...those are the constitutional questions that have to be considered while deciding on the exercise of this majoritarian constitutional power..", Sibal added.

Referring to the government's majority in the parliament, through which it passed The Jammu and Kashmir Reorganisation Bill, 2019, Sibal said, "This majoritarian culture cannot destroy the edifice of what our forefathers gave us..they cannot do what they like if they have a majority.."

Referring to the famous Miller Case of the United Kingdom wherein Boris Johnson requested the Queen to prorogue the parliament, Sibal submitted that UK Supreme Court had held that executive power could not be used to bypass parliament, but the present case was much worse. "You give powers to the governor which he does not have..you as parliament assume powers of the state legislature..what powers does the president have to pass such an order..we are dealing here with the consequence of executive power..", he added.

On the assumption that Article 370 was in fact temporary, Sibal argued that even in that case, the constitution would give the process for amendment and modality had to be within it, not outside and not within executive power of the union.

In conclusion, Sibal submitted,

"Where is the voice of people of J&K? Where is the voice of representative government. Five years have passed..you do not take consent..you don't even take their views..where do we stand..the constitution is a political document, but you cannot politically misuse and maneuver it..that can't' be done..A constitution is a set of values..if you do such executive acts..you silence the voices..this is a historic moment for the future..I hope the court does not remain silent..."

NotablySenior Advocate Gopal Subramanium will begin with his submissions on behalf od another petitioner in the case tomorrow.


Senior Advocate Kapil Sibal had on Day 1 of hearing, told the Supreme Court that the central government abrogated through a political act Article 370 of the Constitution of India, which granted special status to the erstwhile state of Jammu and Kashmir.

"...the govt of the day is staring at this provision and according to me through a political act, not a constitutional procedure declare that it was to be tossed out of the window..such a political act cannot be done by the parliament, it cannot take such a decision..", Sibal had said.

On Day 2 of the hearing, dealing with the petitioners submission that the parliament could not have amended the Constitution to abrogate Article 370, CJI DY Chandrachud had questioned if a new category was being created apart from the basic structure that could not be amended.

A five-judge bench of the Supreme Court, comprising CJI Chandrachud with Justices SK Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, was further told by Senior Advocate Kapil Sibal that Article 370 could not be abrogated, as the constituent assembly of the state which had the power to do so, was non-existent.

Recently, the central government had filed its affidavit in the matter submitting that the abrogation of Article 370 was a historic constitutional step which has brought unprecedented development, progress, security and stability to the region, which was often missing during the old Article 370 regime.

In its most recent counter affidavit filed in the pleas challenging the abrogation of Article 370the Union of India had further submitted,

" ...since 2019, the entire region has witnessed an unprecedented era of peace, progress and prosperity. It is submitted that, life has returned to normalcy in the region after over three decades of turmoil. It is submitted that schools, colleges, universities, hospitals and other public institutions are functioning efficiently without any strikes or any kind of disturbances during the last three years. The earlier practice of daily hartals, strikes, stone pelting and bandhs are things of the past now."