New Delhi: Senior attorney Kapil Sibal argued that there cannot be a “emotive majoritarian interpretation” of the Constitution and that the matter requires an interpretation based on “reading the text, understanding the context, and interpreting Article 370” before the Constitution Bench on Monday while hearing arguments against the repeal of Article 370.
“All J&K inhabitants are Indian citizens. They are an equal component of India as everyone else. They have a legal right to protect it if there is an Article of the Constitution that historically grants them rights, according to Sibal.
In contrast to all previous princely states in India, he said, J&K’s constitution was created after 1950.
In a previous hearing, Solicitor General Tushar Mehta contested the petitioners’ claim that J&K should get special treatment since it was the only state to have its own constitution in 1939.
He had said that this argument is “factually not well founded” and that there are 62 states that have their own constitutions, whether they are called that or are an instrument of internal government. He also added that in the late 1930s, another 286 states were working on drafting their own constitutions.
Article 370, according to Additional Solicitor General K M Natraj, is the only part of the Constitution with a self-destruction mechanism. He made this claim earlier in the day. He claimed that the fundamental structural concept was in opposition to the continuous implementation of Article 370.
The President’s powers under Article 370 are “plenary” in nature, according to the Centre’s argument before the Constitution Bench, and these exceptional powers should not be interpreted in any way that places restrictions on them.
For the intervenors, senior attorney Mahesh Jethmalani cited the preamble of the Constitution and said that the absence of the word “sovereign” in the Constitution of J&K reflected the Union’s control over the state.
He asserted that the Union of India has ultimate legal authority and pointed out that the terms “Constituent Assembly” and “Legislative Assembly” have always been used synonymously in all Constitutional Orders issued by the President.
The National Conference leader Mohammad Akbar Lone, who is one of the principal petitioners in the batch of cases brought against the repeal of Article 370 and who reportedly shouted “Pakistan Zindabad” in the state Assembly, has been asked to submit a brief affidavit stating that Jammu and Kashmir is a part of India and that he abides by and owes allegiance to the Constitution.
A number of petitions are being heard by the five-judge Constitution Bench, which also includes Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant, in opposition to the 2019 Presidential Order removing the special status granted to the former state of Jammu and Kashmir and dividing it into two Union Territories.
