Article 370: As SC Asks Petitioner to Swear Allegiance to India’s Sovereignty, Constitution Itself Is on Trial

Time and again, high courts and the Supreme Court have observed that it is unethical and illegal for lawyers to pass resolutions against representing accused persons in court. In 2020, when some local bar associations in Karnataka had objected to four students arrested for sedition being defended in court, the Karnataka high court intervened and sought the withdrawal of such resolutions. In A.S. Mohammed Rafi v State of Tamil Nadu, the Supreme Court deprecated the practice of advocates collectively refusing to take up the defence of those accused of certain offences.

On Monday, the Supreme Court’s Constitution Bench hearing the challenges to the reading down of Article 370 reiterated that it is duty-bound to hear submissions of every petitioner who comes to the court. “We have had people from across the political spectrum in J&K, it is welcome,” Chief Justice of India D.Y. Chandrachud said.

Therefore, the bench said it would hear senior counsel Kapil Sibal, appearing for National Conference leader and MP Mohammad Akbar Lone, who is the lead petitioner in the case. “We will hear you for Mr Lone as well. There’s no difficulty. He has come to our court, we are duty-bound to hear his submissions,” the bench told Sibal.

But the bench’s insistence that Sibal should ask Lone to file an affidavit that he unconditionally accepts that J&K is an integral part of India and that he abides by and owes allegiance to the Constitution of India is likely to bring its initial declaration – that it would hear everyone who comes to the court – into question.

The controversy arose when a counsel, representing a Kashmiri Pandits’ organisation 'Roots in Kashmir', stated that Lone had made pro-Pakistan slogans in the state assembly.  Other senior counsel including Solicitor General Tushar Mehta insisted that Lone should file an affidavit in the court asserting that he owed allegiance to the Indian Constitution and opposed secessionist forces and terrorism.

Counsel for other respondents and intervenors soon urged Lone to apologise and asked the court to take his submissions on record only if he expresses remorse for his statements, and specifically opposes secessionist activities and terrorism by Pakistan in Jammu and Kashmir.

Other observations by counsel made interesting reading. Senior advocate Rakesh Dwivedi, appearing for an intervenor supporting the Union government, said: “If he is invoking the Constitution of India, then he can’t stand outside the Constitution of India.”

Mehta warned that Lone’s lack of remorse for his statement, if ignored, might encourage others, and the efforts of the nation to bring in normalcy might be affected.

Sibal, however, objected to derailing his constitutional arguments on the basis of what his client might have said in a different context. Sibal claimed he was not responsible for what his client might have said, and that he was not even concerned with it. “Everyone has fundamental rights in this country including those who on the streets you vilify,” Sibal replied to the vociferous demand from the respondents.

Sibal’s reiteration of petitioners’ commitment to J&K being an integral part of India, and Lone’s oath as an MP owing allegiance to the Constitution of India, failed to convince the bench, which suggested that Lone could file an affidavit as a way out.

Attorney General R. Venkataramani submitted that a person seeking to enforce his fundamental rights should have faith in the Constitution – a remark which reminded observers of what human rights defender, the late K.G. Kannabiran, had told an interviewer several years ago.

Kannabiran told the interviewer that he was once asked by a judge why he, as an advocate, seeks to defend those who believe in overthrowing the Indian Constitution, on the basis of rights guaranteed by the same Constitution.  Kannabiran replied to the judge thus:

“In these cases, it is not the accused who is on trial, but the Constitution itself is on trial, as it cannot deny justice to a person who does not believe in it. Notwithstanding their values, the accused are entitled to protection under the Constitution.”

The bench’s insistence on an affidavit by Lone expressing his allegiance to the Constitution and Indian sovereignty came close to a “we-they” divide which characterises much of the discourse on J&K. Sibal put it succinctly: “To say that you must respect our sentiments as if they’re somebody else itself is creating a kind of chasm it shouldn’t be creating.”

Sibal was referring to the argument by one counsel (among the respondents) that “we respect the sentiments of people of J&K but they must also respect our sentiments”. Sibal equated such an argument to an emotive, majoritarian interpretation of the Constitution.

Sibal, however, agreed with the bench that Lone may be asked to file an affidavit explaining the circumstances of his alleged slogans raised in the assembly in support of Pakistan. On the face of it, raising slogans in support of Pakistan – without defending its overt or covert support to terrorism or secessionism – may not disqualify Lone from seeking legal remedies from the Supreme Court.

Having taken oath as an MP, Lone may not find it a problem to reiterate, as a petitioner before the Supreme Court, his allegiance to the Constitution’s ideals of fraternity and social justice and J&K being an integral part of India.  It is obvious, however, that his professed allegiance to the Indian Constitution and its sovereignty cannot come in the way of his challenging provisions of the Constitution, or its amendments, which he deems as discriminatory to the people of J&K.

The hearing is likely to conclude on Tuesday, September 5.

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