A batch of petitions challenged the abrogation of Article 370 following the bifurcation of the erstwhile state of Jammu & Kashmir into two UTs.
Supreme Court
On Tuesday, 5 September, National Conference leader and Lok Sabha member — and lead Article 370-repeal challenger — Mohammad Akbar Lone submitted an affidavit, as asked by the Supreme Court, in which he said he was a responsible and dutiful citizen of India, and that he had taken an oath in Parliament to owe allegiance to the Constitution and uphold India’s unity and integrity.
The affidavit came on the day the Supreme Court reserved its judgement on a batch of petitions challenging the abrogation of Article 370, followed by the bifurcation of the erstwhile state of Jammu and Kashmir into two Union Territories (UTs) — J&K and Ladakh.
Lone, in an affidavit filed in pursuance to the 4 September direction by a five-judge Constitution Bench, said, “I am a responsible and dutiful citizen of the Union of India. I have exercised my right to approach this court through Article 32 of the Constitution. I reiterate the oath taken while being sworn in as Member of Parliament to preserve and uphold the provisions of the Constitution of India and to protect the territorial integrity of the nation.”
The Bench, headed by Chief Justice DY Chandrachud and also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, reserved the verdict on a batch of petitions challenging the abrogation of Article 370 of the Constitution and bifurcation of the state into two UTs.
Solicitor General Tushar Mehta, defending the abrogation of Article 370 and bifurcation of J&K into two UTs, objected to the affidavit, described it as “inadequate”, and referred to instances, including public meetings, where Lone had made objectionable utterances.
Referring to the part of the affidavit which read, “…that I stick to the oath taken while being sworn in as Member of Parliament…”, the solicitor general said, “This is adding insult to injury.”
On Tuesday, the Supreme Court was told that the first deputy prime minister and Union Home Minister late Sardar Vallabhbhai Patel was the “architect” of Article 370, which conferred special status on the erstwhile state of Jammu & Kashmir on its accession to India.
Senior advocate Kapil Sibal told the five-judge Constitution Bench that “Sardar Patel was the architect of 370, it was done with his approval”.
Concluding his rejoinder arguments, Sibal told the Bench that Article 370 was hammered out between the first prime minister Jawaharlal Nehru, Sardar Patel, and then-interim prime minister of J&K Sheikh Abdullah, and that it was Sardar Patel who was speaking to Sheikh Abdullah on the issue.
Referring to a letter by Nehru pointing to the issues relating to the instrument of accession by then-maharaja of J&K Hari Singh, and some additional issues raised by Sheikh Abdullah, Sibal said that Sardar Patel, while not agreeing with them, took upon himself the task of persuading the Congress party on the final draft of Article 370.
As the Bench referred to “political compromises”, Sibal agreeing with it, said, “Everybody was part of the process, all the key players (Nehru, Sardar Patel and Sheikh Abdullah) were collaborating/involved in the drafting of 370.” And in a letter, Sardar Patel “assured” Nehru that he would “persuade the party (Congress) about the final outcome of Article 370”.
The Constitution Bench reserved its verdict on the conclusion of arguments that were spread over 16 days in which petitioners challenging the abrogation of Article 370 had contended that it was a permanent feature of the relationship between the Union of India and Jammu & Kashmir.
The Bench was told that the Constitution of India and the Constitution of J&K spoke to each other through Article 370.
The hearing saw the petitioners arguing that Article 370 could not have been seen in isolation and had to be seen in the context of history, certain developments, and its linkage with other provisions of the Constitution.
It was contended that through the instrument of accession, J&K ceded its external sovereignty — relating to matters of external affairs and not the internal sovereignty, which under its Constitution, J&K retained with itself.
The Bench appeared not persuaded by this position as it said that there was nothing in the Indian Constitution recognising such a position, and said that after J&K had become part of the Union of India and accepted the Constitution of India, all the provisions of the Indian Constitution extended to it.
It was also argued by the petitioners that recourse to Article 356 — the imposition of the President’s Rule — could not be taken to denude the state of its character, change its boundaries, and convert it into a UT.
However, Attorney General Venkataramani, Solicitor General Mehta, and other lawyers defending the abrogation of Article 370 and bifurcation of J&K into two UTs said that there was nothing like external or internal sovereignty. They said that once J&K merged with India, there was only one sovereignty — the sovereignty of India.
They also defended the imposition of the President’s Rule, Lt Governor of J&K dissolving the state Assembly, abrogation of Article 370, and the bifurcation of the state into two UTs.
Mehta told the Bench that it was only after the abrogation of Article 370 that all the rights that people in India enjoyed were extended to the people of J&K.
He said that post-abrogation of Article 370, there was normalcy in the state and incidents of terrorism, stone pelting, and agitations have come down. The cases of stone pelting have come to zero.
He said that there was development in the state and Kashmir has seen a huge flow of tourists.
On 5 August, 2019, the Union government abrogated Article 370, which conferred special status to Jammu & Kashmir, and subsequently bifurcated the State into two UTs.
On 4 September, the Constitution Bench had asked senior advocate Kapil Sibal, appearing for Lone, to “furnish an affidavit from Lone stating that he swears allegiance to the Constitution of India and that Jammu and Kashmir is an integral part of the Union of India, like all Indians. We have everyone from Jammu and Kashmir here.”
Lone had allegedly raised the “Pakistan Zindabad” slogan in the Jammu and Kashmir Assembly during the PDP-BJP alliance government in 2018.
The direction from the Constitution Bench had come after Solicitor General Mehta had urged the Bench that Lone should file an affidavit stating that he owed allegiance to the Constitution of India, and opposes terrorism and secessionist forces backed by Pakistan in Jammu and Kashmir.
The Bench, on Monday, had asked Sibal if Lone unconditionally accepts that Jammu and Kashmir is an integral part of India and that he bears allegiance to the Constitution of India. Chief Justice Chandrachud said that when Lone has invoked the jurisdiction of the Supreme Court under Article 32 of the Constitution, then he has to believe in the sovereignty of the nation and Jammu and Kashmir being an integral part of India.
Attorney General Venkataramani, who was also defending the abrogation of Article 370 and bifurcation of J&K into two Union Territories, had said, “He (Lone) wants his fundamental rights to be enforced and then takes a contrary viewpoint.”
Responding to the issue, Sibal had told the Bench that Lone is a Lok Sabha member and as a Member of Parliament, he has taken the oath owing allegiance to the Constitution and accepted Jammu and Kashmir as an integral part of India.
“Nobody on this side (petitioner’s side) has challenged the sovereignty of India. He is a member of the Lok Sabha. He is a citizen of India. Of course, he does believe in Jammu and Kashmir being a part of India. How can he say otherwise? And if anyone has said it, at my level, I deprecate it,” Sibal said on Monday.
Sibal had told the Constitution Bench that the incidents happened in the J&K Assembly in 2018 and that the BJP Speaker had asked Lone to chant certain slogans as well.
“We proceed on the basis that he is willing to file an affidavit before our court that he owes allegiance, like any other citizen of India, and that Jammu and Kashmir is an integral part of India,” Chief Justice Chandrachud said on Monday.
During the hearing, an advocate appearing for NGO Roots in Kashmir — a Kashmiri Pandit group — had raised the issue stating that he has filed an affidavit about a “startling fact” which came to his knowledge.
Solicitor General Mehta followed it up by asking Lone to file an affidavit stating that he doesn’t support terrorism and secessionism and no citizen can have any objection to filing that.
NGO Roots in Kashmir had filed an affidavit in the top court alleging that Lone, who was a member of the Jammu and Kashmir Assembly from 2002 to 2018, had shouted “Pakistan zindabad” on the floor of the House and had refused to apologise for this act.
The NGO had stated that Lone was known as “a supporter of secessionist forces operating in Jammu and Kashmir which support Pakistan.” The NGO had asserted that Lone had often made pro-Pakistan statements and that would explain his opposition to any challenge that brings the people of Jammu and Kashmir at par with the rest of the country.
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