J&K National Conference leader Mohd Akbar Lone attempted to bring up ‘referendum’ to substantiate his argument that the will of the people of J&K was not taken into consideration before neutering Article 370, which had acquired permanent status after the lapse of J&K Constituent Assembly (CA) in 1957.
Lone’s counsel Kapil Sibal read out the speech given in the J&K CA by then chief minister Sheikh Abdullah.
“The constitution of the Indian Union, therefore, clearly envisaged the convening of a Constituent Assembly for the J&K state, which would be, finally competent to determine the ultimate position of the state in respect of the sphere of its accession which would be incorporated as permanent provision of the Constitution,” Sibal said quoting Abdullah.
Sibal alluded to repeated reference in the J&K CA debates to the ‘will of people of J&K’ in determining the state’s relations with respect to India and said that is why while other states were quasi-federal in nature, J&K was truly federal as it had residuary powers with the state assembly and also enjoyed a special status even under the Indian Constitution.
SC: Recourse to people’s will has to be sought via established institutions
Sibal alluded to repeated reference in the J&K Constituent Assembly debates to the “will of people of J&K” in determining the state’s relations with respect to India and said that is why while other states were quasi-federal in nature, J&K was truly federal as it had residuary powers with the state assembly and also enjoyed a special status even under the Indian Constitution. This repeated references to the ‘will of the people’ was what also occasioned mention of plebiscite in J&K in the UN Security Council about its accession to India, he said. When Sibal moved to draw an analogy with the Brexit referendum on UK’s exit from the European Union, a bench of Chief Justice D Y Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant could brook no more arguments on linking of the Kashmir issue to a referendum and said, “In our established constitutional democracy, any recourse to the will of the people has to be expressed and sought in terms of established institutions.”
CJI Chandrachud said, “Yo u cannot envisage therefore a Brexit-type of referendum, which was a political decision taken by the then UK government. Within the Constitution like ours, there is no question of a referendum.”
Sibal said the Union government took a political path, not a constitutionally chartered procedure, to abrogate Article 370 of the Constitution. When it is a political decision , the ‘will of the people’ must have been ascertained. This mandato ry requirement was not complied with by the Union government, thus making the decision arbitrary as well as unconstitutional, he said.
Lone’s counsel said a day after BJP withdrew support to the coalition government with PDP in the state, the governor on June 20, 201 8 kept the assembly under suspended animation. Without taking the aid and advice of the Council of Ministers, the governor dissolved the assembly and President’s rule was imposed on December 19, 2018, which was extended on July 3, 2019 prior to abrogation of Article 370 through an executive decision on August 5.
He said, “The governor could not have represented the ‘will of the people’. He could also not have represented the views of the J&K CA or assembly. How did Parliament assume the role of CA or assembly and recommend to itself abrogation of Article 370? So from the very inception, this executive order was constitutionally flawed. The Union government created a myth by assuming that the governor was acting on the aid and advice of the Council of Ministers, which was nonexistent.”
Concluding his threeday-long arguments, Sibal said, “Constitution is a political document, but it cannot be politically misused, manoeuvred and manipulated. Even when there is a clash between constitutional arms, the court is never silent. Whenever the court is silent, the consequences have been disastrous. A Constitution is a set of values on the basis of which people are represented and their voices are heard. If such executive acts silence the voice of people, what is left of democracy? All I can say to the Supreme Court is that this is a historic moment. Historic not for the present but for the future of India. And I hope this court will not remain silent.”
