Thread by @barandbench

[Day 1 Hearing: Article 370]

Five-judge Constitution bench of the Supreme Court led by CJI DY Chandrachud to commence hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution

#SupremeCourtofIndia #Article370

On board are 20 petitions challenging the Central government's decision to abrogate Article 370 of the Constitution, which resulted in the revocation of Jammu and Kashmir's special status. The erstwhile State was subsequently bifurcated into two Union Territories.
#Article370… twitter.com/i/web/status/1…

The Constitution bench assembles #Article370

CJI DY Chandrachud: We will give prominent hearing to the first counsel and then hear others on the basis of newer grounds

Sr Adv Kapil Sibal to start today

CJI: Mr Sibal please wrap up by tomorrow lunch

Sibal: It may be difficult since historical context has to be heard...… twitter.com/i/web/status/1…

Justice Kaul: Last time we had heard the case for four to five days and we have notes from that time. it was argued for about 90 percent

CJI: Let Mr Sibal open.. we will have a good idea by end of the day

#Article370 #SupremeCourt

Adv Manohar Lal Sharma: Let me say something to the Honourable court

Sr Adv CU Singh: can Justice Bose's court hear mentions..there is something urgent

CJI: There is a SOP.. when mentioning is not there.. just email to the registrar and registrar listing will inform me .. all… twitter.com/i/web/status/1…

CJI: Mr Sharma we are not calling this case with a petitioner name.. we are calling it In Re: Article 370

Sharma: I filed the first petition.. please let me argue at the end

CJI: Ofcourse

Justice Kaul: yes yes you will be the last batsman.

#Article370 #SupremeCourt

Sr Adv Kapil Sibal begins: This is a historical moment in many ways. This court will be analysing why history was tossed out on August 6, 2019 and whether procedure adopted by parliament was consistent with what democracy stands for.. whether will of J&K people can be silenced..… twitter.com/i/web/status/1…

Sr Adv Sibal appearing for Akbar Lone: whether governor of a state would have on June 28, 2018 decide to keep the assembly under suspension without even trying to find out a govt could be formed.. whether in 2018 dissolution of assembly could have taken place on June 21, 2018… twitter.com/i/web/status/1…

CJI: Like the Maharashtra case... the live transcript will be there for this case... it will be available by the end of the day #Article370 #SupremeCourt

Sr Adv Sibal : We wish to make a statement. We stand here on the premise that integration of Jammu and Kashmir with India was and will always remain UNQUESTIONABLE #Article370
#SupremeCourtofIndia

Sr Adv Sibal : There were orders passed every now and then applying the Constitution of India to Jammu and Kashmir. All laws were applicable apart from Article 370. There was no reason to take away this right

#Article370 #SupremeCourtofIndia

Sr Adv Sibal begins reading the list of dates commencing from March 9, 1846 #Article370 #SupremeCourtofIndia

Sr Adv Sibal continues reading the list of dates now from 1925 onwards #Article370 #SupremeCourtofIndia

Sr Adv Sibal : On September 7,1939, Jammu and Kashmir Constitution Act was promulgated

Continues reading list of dates

#Article370 #SupremeCourtofIndia

Sr Adv Sibal continues reading the list of dates #Article370 #SupremeCourtofIndia

Sibal: In this hearing the court has to determine what constituent assembly stands for... it stands for enacting the territories of the future... what kind of state the people wants and keeping their aspirations in mind..

exercise of constituent assembly is a political exercise… twitter.com/i/web/status/1…

Sr Adv Kapil Sibal: On 26.10.1947 the Ruler of Jammu and Kashmir, Maharaja Hari Singh, made an offer of accession to India, asking for help from the Indian Dominion to meet a grave emergency, caused by "the mass infiltration of tribesmen drawn from the distant area of North-West… https://t.co/CK790KfN4etwitter.com/i/web/status/1…

Sr Adv Sibal: at that Sheikh Abdullah was in prison... he was against the despotic ruler.. and he was against him.. but he realised that unless he is on their side he cannot act on his cause...

[Junior to Sr Adv Sibal murmurs]

Sibal to his Junior: no I do not want to take any… twitter.com/i/web/status/1…

Sr Adv Kapil Sibal reads the below attached original instrument of accession: #Article370 #SupremeCourtofIndia

Sr Adv Kapil Sibal reads schedule to the instrument of accession: #Article370 #SupremeCourtofIndia

The schedule to the Instrument of Accession being read by Sr Adv Sibal
#Article370 #SupremeCourtofIndia

Did the subjects correspond to some of the specific entries in the Govt of India Act? : CJI

Sibal: it was applicable to the ones residing in the state, who came from Pakistan..

CJI: subjects whom instrument of accession covers must cover subjects in the govt of India act.. like… twitter.com/i/web/status/1…

Sr Adv Sibal reads The Maharaja's Proclamation on 5 March 1948
Appointing a Popular Interim Government
#Article370 #SupremeCourtofIndia

Sr Adv Sibal: no revised instrument of accession was signed by the ruler of Jammu and Kashmir #SupremeCourt #Article370

Sr Adv Kapil Sibal continues reading the list of dates: Now when the Constitution of India was adopted. Please read this it is of significance.. it was in Republic Day #Article370

Justice Sanjiv Khanna: This was by an administrative order.. also the schedule to the Instrument of Accession was far more restrictive

Sr Adv Sibal: yes under Article 370

#Article370

Sibal: govt of the day accepted the fact that our relation with J&K Govt was on a separate footing and that residuary power will rest in the state and repugnancy does not arise and that is how Article 370 came into being and it continued
#Article370 #SupremeCourtofIndia

CJI: What happened to currency.. it is governed by entry 36 of list 1

Sibal: currency was Indian.. in 1954 there was another adaptation order

CJI: Were the subjects broadened by subsequent adaptation orders

Sibal: yes milord.. state said that they are integrated into India and… twitter.com/i/web/status/1…

Sibal: suddenly in parliament it was said that it was being done at 11'o clock and decided to do it one fine morning without consultation and tossed it out. #SupremeCourtofIndia #Article370

Sibal: no one disputed that J&K is a part of India..there was this understanding between govt of india and the state that there will be a constituent assembly who will decide what happens to article 370 and that is why it is called a temporary provision... it was temporary… twitter.com/i/web/status/1…

Sibal: before Article 370 could be effaced.. the concurrence of constituent assembly was needed

CJI: but after the end of 7 years.. when constituent assembly lapses then what happens

Sibal: from 1950 to 1957 only the constituent assembly could decide

CJI: No constituent… twitter.com/i/web/status/1…

Justice SK Kaul: you are saying Article 370 could not be abrogated after 1957..

Justice Sanjiv Khanna: one is interpretation is clause 3 of article 370.. you are saying proviso cannot be resorted to after 1957 and thus clause 3 is redundant.

Sibal: see the constituent… twitter.com/i/web/status/1…

CJI: So clause 3 becomes a constitutional article after 7 years... how can this be? clause 3 continues to operative... clause 3 contains a non obstante clause which overrides clause 1 as well.. article 370 (3) has the non obstante clause

Sibal: a structure was envisaged by the… twitter.com/i/web/status/1…

Sibal: you have to see the case with a historical perspective..

CJI: so once the period stipulated in clause 3 came to an end.. the power under clause 3 itself came to an end.. that is the argument..

Sibal: constituent assembly has worked itself out and that is why it is a… twitter.com/i/web/status/1…

Justice Surya Kant: If clause 3 goes then article 370 could never be abrogated...

Justice SK Kaul: temporary nature of article 370 is correlated to the term of the constituent assembly and it becomes permanent after the constituent assembly ceases to exist

#Article370

Sibal: that is why I said formation of constituent assembly is a political exercise.. it is not a law making exercise.. look at Europe and making of nation states in europe.. there was large empires.. like Austria and Hungaria.. it was break up of the empire which led to the… twitter.com/i/web/status/1…

Sibal: aspirations and desire of people whatever it may be has to be respected

Justice Kaul: if an elected assembly wants to abrogate article 370 then also it is not possible?

Sibal: No

CJI: but that is only on the basis that 370 becomes permanent after constituent assembly… twitter.com/i/web/status/1…

Justice Kaul: if an elected assembly wants to do it which represents the will of people even they cannot.. that is what you are saying..

Justice Khanna: To say that proviso to clause 3 of Article 370 will cease to operate after the constituent assembly ceases to exist..

CJI:… twitter.com/i/web/status/1…

CJI: The whole area of concurrence and consultation is confined to matters in union and concurrent list.. presidential power is untrammelled to define which subjects are applicable to the Jammu and Kashmir..

Sibal: President only orders

CJI: Clause D refers to order by… twitter.com/i/web/status/1…

Supreme Court to resume hearing now
#Article370 #SupremeCourtofIndia

CJI: Suppose in the area of union or concurrent something is not covered by subjects under instruments of accession.. state legislature is operating on state list..

Sibal: and the residuary powers..

CJI: but is this part of the instrument of accession..

Sibal: I will show how… twitter.com/i/web/status/1…

CJI: Constituent assembly is not a permanent body and it has a purpose and after it is done then it becomes functus officio.. and once that is done then proviso becomes redundant... transitional means something which necessarily has a terminus... another is temporary provisions… twitter.com/i/web/status/1…

CJI: Can we say power under clause 3 goes after constituent assembly ceases to exist and then 370 becomes permanent when it was never intended so...

Sibal: because it had to be temporary always till constituent assembly was there

CJI: Then why was it under part 21?

Sibal:… twitter.com/i/web/status/1…

Sibal: the residuary power was always with the state..

CJI: please show the constituent assembly debates... to throw light on the provision

Sibal: right away

#Article370

Sibal reads the statement of Shri N. Gopalaswami Ayyangar from the Constituent Assembly Debates #Article370

Sr Adv Sibal reads the constituent assembly debate #Article370

Sibal: this clearly gives an indication why it was temporary... there was nothing in place and the will of the people had to be taken into account.. #Article370

Sibal : we in hindsight sitting in 2023 cannot interpret a provision except on its terms. we cannot legitimise a process which is in violation of the express terms of the constitution. #Article370

Sibal: no one can deny that people of jammu and kashmir are the people of India. but we have a special relationship which is unique and cannot be jettisoned unless ofcourse such a process is followed #article370

Sr Adv Sibal: parliament took upon the constitutional responsibility saying we are the legislature, we are the constituent assembly and we exercise the will of J&K people and now we will abrogate Article 370 #Article370

Sibal: not only boundaries were changed.. they converted it into a Union Territory... never in the history of this country has a state been made into an Union Territory.. this is unthinkable.. you move away from representative democracy and you put under executive control.. there… twitter.com/i/web/status/1…

Sibal: a political act cannot be exercised by the parliament..they had no authority to do this when the constitution had come into force..
#article370

Bench rises
Hearing to resume tomorrow
#Article370 #SupremeCourtofIndia