On day two, Senior lawyer Kapil Sibal is scheduled to continue his arguments on the petitions challenging the abrogation of Article 370 on August 5, 2019 by the central Government.
On Day 1, Sibal presented his arguments for over eight hours against the alloted time of ten hours and said that the abrogation was completely unconstitutional.
17 more petitions are scheduled to be heard by the five bench judge headed by the Chief Justice of India, Justice Chandrachud.
Several lawyers of the Supreme court have said that the people of Jammu Kashmir have high expectations from the court and the court can play a historic role like the old times and be a part of glory.
Live updates
1030 AM: Kapil Sibal There is a nuanced interpretation of Article 370. There were substantive provisions of the Constitution of India that were to be made applicable to J&K. These were all done through the application order. That’s the power under 370(1)(d)- with concurrence.
370(1)(b)(i) and (ii) talks of the lists.
1045 AM: substantive provisions of the Constitution were made applicable- that also with concurrence.This was being done between 1951-57 when the Constitution was being made.
1954 constitutional order which superseded the 1950 order shows what was done. Nothing was ever done without concurrence except those four items mentioned in the instrument of accession..Never!
1050 AM: This is passed by a constitutional order applicable to J&K. That’s the solemn promise made- that you will not change the boundaries. And that’s with concurrence. And that’s exactly what they did without concurrence.
CJI DY Chandrachud: What’s the distinction between consultation with the Govt of State which is referred to in the first proviso to Art 370(1)(d) and then clause (i) of (b). There has to be a reason.
Sibal: Clause (b)(i) says “make law”- it only deals with the lists.
CJI DY Chandrachud: I was just thinking aloud- (b)(i) refers to the specification of matters which are covered by the IoA, in respect of which parliament can make laws.
CJI DY Chandrachud: The first proviso to (d) will obviously not cover that category.
CJI DY Chandrachud: Possibly, the meaning which can be attributed to the proviso to (d) is this- when the president is making an exception or modification to another provision of Constitution, then the President has been given the power.
CJI DY Chandrachud: I was wondering, what (d) says that if the President is making a modification, exception- then you require a consultation or concurrence in terms of second proviso
Sibal: (b)(i) specifies lists under which it can make laws. It doesn’t say anything more than that. The law is not yet being made. So they are correlating the making of law to the items of lists.
12:35 PM: CJI: even when the Parliament amenda the constitution, it is not exercising the powers of constituent assembly, it may be exercising a constituent power. But because it is a limited power, which is restricted, hoi are subservient to the constitution. Therefore you’re bound by the provisions of the constitution.
12:37: Sibal: Yes, that is our submission. That is what we said at the onset.
2:00 P.M:
Justice Sanjiv Khanna: there is a slight difference between article 370 and what is stated here.. article 370 has an element of flexibility.. lets not go into how it was done etc.. whether with consultation or acceptance… when we read clause 3.. at the time when constitution was adopted there was no constitution of J&K and there was no constituent assembly.. but they knew constituent assembly will come.. why cannot we accept that argument that constituent assembly for the purpose of the proviso could also be interpreted to include the legislative assembly …keeping in mind that parliament could have amended article 370 also and if the objective was not to close or not to put the article 370 in a straight
Sibal: the flexibility was at the instance of the constituent assembly and not the parliament ..this was not given to the legislature because article 147 of J&K constitution says there cannot be any such flexibility at all.
CJI: When was the first reference to the Constituent assembly in the documents prior to the Constitution of India.. I read it in the Proclamation of the Maharaja… when the maharaja issued his proclamation..
Sibal: it was contemplated by the constitution makers that there shall be a constituent assembly and that is why it came into existence in 1951.
Justice Kaul: everything is a political process Mr Sibal.. all that has to be seen is that whether it is a constitutional process or not.
3:05 PM: Sibal: The Governor issued a proclamation order on June 20, one day after BJP withdrew support from PDP. In November 19, a month ahead of scheduled expiry of proclamation order, the governor dissolved the assembly… PDP faxed the Governor that they have support of national conference party and would form govt.. but the governor says he was in Jammu and the fax was sent to Srinagar.. so he goes ahead and dissolves the legislative assembly.
CJI: Without aid and advice?
Sibal: no Nothing.. this was a pure political act.. governor and govt was acting in tandem to toss out article 370..
CJI: which is the power of dissolution under J&K Constitution?
Sibal: yes, article 53.
3:20: PM: If the parliament stops consulting the state. You lose the link between the centre and the state altogether. You absorb the powers of the state with yourself as the executive, as well as the parliament and the legislature. And you decide without reference to any other institution.
3:50 PM: The centre gave itself the consent and those people who gave themselves this constitution are left out of the process. This is essentially a break down of the constitutional structure.
4:00 P.M: The bench has risen up for the day. The hearing will resume on Tuesday (August 08).