Art 370 petitioner must show allegiance to Constitution: SC

The bench said it wants Akbar Lone to file his personal affidavit within 24 hours in deference to the Constitution and integrity of the nation.

A person seeking to assert constitutional rights must be unequivocal about his allegiance to the Constitution and sovereignty of the people of India, the Supreme Court emphasised on Monday, demanding a categorical affidavit from National Conference parliamentarian Akbar Lone pledging allegiance to the country’s sovereignty after the court received complaints that Lone in 2018 raised ‘Pakistan zindabad’ slogans in the Jammu & Kashmir assembly.

The court directed Akbar Lone to file his affidavit by Tuesday when the court will hear the case for the sixteenth consecutive day (ANI)

Lone is one of the chief petitioners before the constitution bench, which is hearing a clutch of petitions against the 2019 abrogation of Article 370 that granted J&K special status and restructured the state into two Union territories.

“Do we take it that Mr Lone unconditionally accepts the sovereignty of India and that J&K is an integral part of India? When he invokes the jurisdiction of our court under Article 32 of the Constitution, he, therefore, has to necessarily abide and owe allegiance to the Indian Constitution,” the five-judge bench, headed by Chief Justice of India Dhananjaya Y Chandrachud, told senior counsel Kapil Sibal, who represents the NC leader.

The bench, which included justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R Gavai and Surya Kant, said it wants Lone to file his personal affidavit within 24 hours in deference to the Constitution and integrity of the nation.

“We want to have it from him that he unconditionally accepts that J&K is an integral part of India and that he abides by and owes allegiance to the Constitution...Here, in this court, you argue that J&K is an integral part of India. But if your client says something outside which is in contradiction...then probably, he is also accepting that there was a problem that needed to be dealt with,” the bench said.

The complaint against Lone was made by Roots in Kashmir, an organisation of Kashmiri Pandit youth that filed an application on Saturday, contending that Lone is a known protagonist for secessionist forces in J&K that support Pakistan and that in February 2018, he had raised pro-Pakistan slogans on the floor of the assembly.

During the proceedings on Monday, solicitor general Tushar Mehta stood up to oppose Lone’s intervention in the case, arguing that somebody who does not owe his allegiance to India does not deserve an audience from the Supreme Court.

“He should file an affidavit saying he owes allegiance to the Union of India and the Indian Constitution. He should state that he is against the secessionist forces. He must say he is opposed to terrorism by Pakistan in J&K or anywhere else. Efforts of the nation to bring stability to the region, which has been substantially successful so far, may get affected if something like this is allowed. Such things coming from an MP have their own seriousness,” Mehta added. Attorney general R Venkataramani supported Mehta.

Responding, the bench said it will enquire from Sibal, Lone’s lawyer, about what he has to say on this after the Union government and those supporting the 2019 abrogation complete their submissions.

When Sibal appeared before the bench to argue the matter in rejoinder, he began by saying that nobody on the petitioner’s side challenged the sovereignty of India and that he would rather want to focus on the legal arguments.

“I am not standing for him or what he said, if he said it. If he has said it, in what circumstances, is it recorded, you ask him for an affidavit...He is a member of parliament today. He has sworn to the Constitution of India. He is a citizen of India. How can he say otherwise? And if anyone has said it, at my level, I deprecate it,” Sibal said.

The bench, however, said it wants Lone to submit a specific affidavit. “That’s a submission Mr Sibal. But we want to have it from him 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,” said the bench.

Sibal said he would rather focus on pure constitutional issues involved in the matter, since the incident being mentioned may have different versions. “There was a speaker of the BJP (Bharatiya Janata Party) who was present there when this allegedly happened. There are some people who asked him to say something he didn’t say. And now, it’s not part of record, it’s withdrawn, it’s deleted. 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 this?” asked Sibal.

Unmoved, the bench retorted: “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 J&K is an integral part of India... We have heard people from across the political spectrum in J&K. But all of them have come in one spirit, which is that they abide by the integrity of India.”

It directed Lone to file his affidavit by Tuesday when the court will hear the case for the sixteenth consecutive day. The constitution bench is expected to conclude the hearing on Tuesday and reserve its verdict in the matter.

On the fifteenth day of the hearing, those supporting the August 2019 abrogation wrapped up their arguments. Senior counsel V Giri, Mahesh Jethmalani and additional solicitor general KM Nataraj and Vikramjit Banerjee argued that abrogation of Article 370 was necessary for complete integration of J&K into the Union.

Giri at one point said that continuance of Article 370 was in derogation of the basic structure of the Constitution, but the bench was unimpressed. “This might be a little too far-fetched because then that would be to postulate that original Article 370 was violative of basic structure. You can’t invite us to hold in your favour on an unstatutable proposition,” it said.

The bench is seized of a raft of petitions, filed by parliamentarians from the National Conference party, Kashmiri citizens, former bureaucrats and various organisations that have laid the challenge to the abrogation of Article 370 soon after the presidential order in August 2019. On July 3, the Supreme Court notified the setting up of a new constitution bench, comprising its five most senior judges, that began day-to-day hearing from August 2.