Article 370 Debate in Supreme Court: Kapil Sibal Emphasizes Historical Context and Rejects Majoritarian Interpretation
On the fifteenth day of the Article 370 hearings, the Supreme Court, led by Chief Justice of India DY Chandrachud and comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, transitioned from the arguments of the Union government to the rejoinder arguments presented by the petitioners.
Senior Advocate Kapil Sibal, representing the petitioners, began by emphasizing the historical context of Jammu and Kashmir’s accession to India. He highlighted that the state’s accession was unique, given its geographical detachment from the rest of India. Sibal stated,
“What transpired in Jammu and Kashmir was solely to ensure its integral association with India.”
Sibal expressed his concerns over the portrayal of the petitioners’ arguments, clarifying that they never challenged India’s sovereignty. He remarked,
“We cannot reduce this case to an emotive, majoritarian interpretation of the Constitution of India. All residents in Jammu and Kashmir are citizens of India. If historically there is an Article which gives them certain rights, they’re entitled to defend that as a matter of law.”
The senior advocate then delved into the intricacies of Article 370, asserting that the Parliament’s powers concerning Jammu and Kashmir were restricted by this Article. He emphasized that the integration of Jammu and Kashmir into India was intended to be a gradual process, facilitated by communication between the two executives.
The CJI, in response, pointed out the ambiguities in Article 370, especially in the absence of explicit provisions detailing the process post-integration. He remarked,
“So, we are dealing with a provision that perhaps lies even higher than the basic structure doctrine.”
Sibal, however, countered this by emphasizing that the court’s role was not to find a solution but to assess the validity of the actions taken by the Union concerning Article 370.
Sibal also critiqued the Union’s use of Article 356, asserting that the imposition of the President’s Rule and the subsequent substitution of the constituent assembly with the legislative assembly were not in line with constitutional norms. He stated,
“The democratic process can’t be stultified.”
The hearing also saw the court asking the petitioner to file an affidavit affirming allegiance to the Indian Constitution and accepting India’s sovereignty.
As the debate on Article 370 continues, the nation keenly awaits the Supreme Court’s judgment on this pivotal issue, which will shape the discourse on Jammu & Kashmir’s relationship with the Union of India.
