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Art 370 hearing: NC Leader Akbar Lone to file affidavit saying he owes allegiance to Constitution

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New Delhi: The Supreme Court Monday asked National Conference leader Mohammad Akbar Lone to file an affidavit swearing allegiance to the Constitution of India and accepting the country’s sovereignty unconditionally, after the ‘Pakistan zindabad’ slogan that he allegedly raised in the Jammu & Kashmir assembly in 2018 kicked up a massive row.

Lone, the lead petitioner challenging the abrogation of Article 370 that accorded special status to the erstwhile state of Jammu and Kashmir, will file the affidavit by Tuesday, senior advocate Kapil Sibal, who represented him in the matter, told a five-judge bench headed by Chief Justice DY Chandrachud.

The senior lawyer said he will not represent Lone if he does not file the affidavit as sought.

“He is an MP of Lok Sabha. He is a citizen of India and sworn to his office by the Constitution. He accepts the sovereignty of India,” Sibal told the bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant.

Earlier in the day, Solicitor General Tushar Mehta, appearing for the Centre, told the bench that the central government wanted Lone to apologise for raising Pakistan zindabad’ (long live Pakistan) slogan in the Jammu and Kashmir Assembly in 2018.

Lone has to state that he owes allegiance to the Constitution and apologises for raising the slogan on the floor of the House, the law officer said, while pointing to the matter having been brought to the court’s notice by a Kashmiri Pandit group.

NGO ‘Roots in Kashmir’, which claims to be a group of Kashmiri Pandit youths, has questioned the credentials of Lone, claiming he was a supporter of secessionist forces.

The moment bench re-assembled in the post-lunch session, Justice Kaul pointed to Sibal that lawyers for respondents (those supporting abrogation of Article 370) have submitted that what Lone allegedly said was “not in sync”.

Sibal said, “I’m not concerned with that. If he has said it, in what circumstances, is it recorded, you ask him for an affidavit. I won’t stand for him in this court, if he doesn’t file an affidavit.”

The CJI then told the senior lawyer that Lone will have to file an affidavit that he unconditionally accepts the sovereignty of India and that Jammu and Kashmir is an integral part of India.

“How can he say otherwise? He is a member of Parliament. And if he has said it, at my level, I deprecate it. I personally don’t subscribe to what he has said,” Sibal said.

Mehta said it is one thing that Sibal deprecates it and asked whether Lone, a litigant, file an affidavit to say that “he does not support terrorism and secessionism. No citizen can have any objection in filing that.”

The CJI then told Sibal, “When he invokes the jurisdiction of our court under Article 32 of the Constitution, we take it that he necessarily abides by the Constitution. We want to have it from him in the affidavit that he unconditionally accepts that J&K is an integral part of India and that he abides by and owes allegiance to the Constitution of India.”

Sibal said the alleged incident is of the J-K assembly session in 2018 and there were other people also who were present.

“I was not aware of it until this morning, when someone pointed it out to me. Let’s not go into all these. There was a Speaker of the assembly from BJP who asked him to say something. He was asked to say something which people ask other people to say on the streets of this country. Why do we need to go into all this? Let’s focus on our legal issue,” Sibal said without elaborating further.

The bench then told Sibal to ask Lone to file a short affidavit by Tuesday, and said it likes to hear different voices and has heard people from Srinagar and other parts of Jammu and Kashmir.

“We will hear you (Sibal) for Mr. Lone as well. There’s no difficulty. He has come to our court, we’re duty bound to hear his submissions. All that we want to say here is that we welcome everyone here. We heard people from across the political spectrum in J&K. We like to hear different voices,” the CJI said.

Attorney General R Venkataramani said a person seeking to enforce his fundamental rights should have faith in the Constitution.

Sibal then continued with his legal submission in his rejoinder arguments and said he has at the outset stated they have not challenged the sovereignty of India and insisted that Jammu and Kashmir is an integral part of India.

Sibal said Lone and other petitioners challenging the Centre’s decision have always maintained that Jammu and Kashmir is an integral part of India.

“We cannot make this case into an emotive majoritarian interpretation of the Constitution. If we look at history, Jammu and Kashmir is not completely linked to India. The erstwhile state had a separate detailed Constitution, administrative and executive structure. It was never asked to sign a merger agreement,” Sibal said.

He told the bench that when Article 370 says that ‘concurrence’ of the state government with respect to certain subjects is required, it means the executive can also say ‘no’.

The CJI told Sibal, advancing rejoinder arguments, that the Indian Constitution does not specify what would happen after the Constitution of Jammu and Kashmir comes into force.

“You see, there is no express provision. There is a complete silence as to what would happen after the J-K Constitution comes into force. It was like allowing Article 370 to operate and let the process of integration (of J-K) get over. But, at what time integration will be over is not hedged in the Constitution of India,” the CJI said.

Sibal reiterated his argument that Article 370 acquired a permanent character once the term of the constituent assembly of Jammu and Kashmir got over in 1957 after drafting the state’s Constitution.

“We should interpret the Constitution textually and contextually, but not by looking at what there is in silence,” he said.

Sibal said abrogation of Article 370 is a political process and it must have a “political solution”.

“So, you are saying there is no solution for abrogation of Article 370 within the Constitution and that a political solution has to be found. We have to keep in mind that all solutions have to be within the framework of the Constitution,” CJI Chandrachud told Sibal.

Sibal’s submissions remained inconclusive and will continue on Tuesday.

Earlier in the day, the top court heard arguments of counsel for intervenors, who are defending the Centre’s August 5, 2019 decision to abrogate Article 370 that accorded special status to the erstwhile state of Jammu and Kashmir.

Among those who advanced their arguments included KM Nataraj and Vikramjeet Banerjee (both Additional Solicitor General), senior advocate V Giri and others.

The bench made it clear that Tuesday will be the last day for hearing submissions on Article 370.

The intervenors had told the apex court on September 1 that the decision to abrogate provisions of Article 370 was not made by the political executive alone and Indian Parliament was taken into confidence.

Several petitions challenging the abrogation of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which split the erstwhile state into two union territories – Jammu and Kashmir, and Ladakh – were referred to a Constitution bench in 2019.

Press Trust of India

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