New Delhi: National Conference Lok Sabha MP and lead petitioner in the Article 370 case before the Supreme Court, Akbar Lone, filed an affidavit reiterating the oath he took while being sworn in as MP to preserve and uphold the provisions of the constitution of India and to protect the territorial integrity of the nation.
Lone’s affidavit, however, failed to satisfy solicitor general (SG) Tushar Mehta, who asked the constitution bench, which reserved its verdict in the case, to read what is not written in it.
National Conference leader Mohammad Akbar Lone. Photo: Screenshot from YouTube.
Mehta alleged that Lone’s affidavit added insult to injury, as he avoided making clear his opposition to terrorism or separatist activity.
However, Chief Justice of India D.Y. Chandrachud said the bench will analyse the affidavit.
Earlier, in response to Mehta’s concerns over Lone’s affidavit and its silence over his opposition to terrorism and separatism, senior counsel Kapil Sibal asked the bench to make such affidavits mandatory for every petitioner and intervener before the court, to avoid discrimination.
Senior advocate Gopal Sankaranarayanan expressed his concern that the SG’s complaint against Lone would mean that filing a petition in this case is pushing a separatist agenda and the counsel arguing on behalf of the petitioners are backing a similar agenda.
The CJI, however, intervened to say that nobody has said that the filing of the petition constitutes a separatist agenda.
Today’s arguments
Senior counsel representing the petitioners made their rejoinder submissions in response to the arguments of the Union government and the interveners supporting it.
Sibal pointedly asked did the Union government convert a state into a union territory even though it was unprecedented.
If national security concern is a ground, then Article 3 of the constitution – enabling the Union government to reorganise a state – cannot be the solution, he said.
He also suggested that the bench should not read Article 370 – before it was read down – literally, and infer reasons for the usage of different words like concurrence, consultation and recommendation in different contexts.
“It is absurd to say that for abrogating the Article, consultation or concurrence is not required, while for applying individual Articles they would apply”, he said, saying that the constitution’s framers would never have intended such a result.
Sibal also questioned the process adopted for dissolving the Jammu and Kashmir (J&K) state assembly. Citing the Supreme Court’s judgment in S.R. Bommai v Union of India, he said the state assembly can be dissolved only after the proclamation imposing president’s rule is accepted in both houses of parliament.
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In J&K, dissolution happened without the aid and advice of the council of ministers, which is worse, he pointed out.
Another anomaly that he pointed to was the imposition of president’s rule during the governor’s rule, when there was no question of failure of the constitutional machinery.
“The whole motive and process were political, but the end result was unconstitutional”, he said while summing up.
“Ambedkar’s fear turned out to be right. He said that he could not rule out the article being used for political reasons.”
Sibal also disagreed that silences in the constitution can be interpreted to justify the president’s exercise of power to read down Article 370 in the manner it was done.
Senior counsel Rajeev Dhavan submitted that Article 3 is a mandatory provision which says that one must circulate any Bill for reorganisation to the concerned state’s legislature.
He described Article 370 as a compromise which should be understood along with other compromises in the constitution – namely, Sikhs being allowed to carry kirpans, (Explanation 1 to Article 25) and the Sixth Schedule. Getting rid of these compromises requires constitutional amendments, he submitted.
Dhavan also suggested that the words ‘concurrence’, ‘consultation’ and ‘recommendation’ have been used in Article 370 and elsewhere in the constitution to facilitate cooperative federalism.
Senior counsel Dushyant Dave asked whether the Union government, in the face of the law declared by the Supreme Court, can say that Article 370 ceased to operate.
Citing the Supreme Court’s judgment in Berubari v Union of India, he said the right way to undo a treaty is only through a constitutional amendment.
Dave expressed his concern that if constitutional morality is allowed to be trampled, then nothing will remain.
Senior advocate Gopal Subramanium contended that Article 370 was a self-controlled Article whose fate did not depend on its marginal note, describing it as a temporary provision.
He submitted that the Instrument of Accession (IoA) did not lead to the complete transfer of sovereignty. It is because Article 370 referred to the IoA and the state constituent assembly as well, he suggested.
The constitution bench is likely to deliver its verdict in the case before December 25, when Justice Sanjay Kishan Kaul – a senior member of the five-judge bench which heard the case for 16 days – retires.
