Supreme Court hearing on Article 370 abrogation | Day 14

Giri says – ‘...The recommendation power of the Constituent Assembly was intended to be co-terminus with the life of the Constituent Assembly which was dissolved after the Constitution of the state was made.’

Senior Advocate V Giri is appearing on behalf of an applicant in an interlocutory application (IA)- the All India Kashmiri Samaj.

Senior Advocate Rakesh Dwivedi concludes his submissions by stating – ‘It is surprising that my friends on the right, wedded to democracy, are seeking permanence based on a crown which is long gone. The king is dead, long live the king.’

Dwivedi takes the bench through documents – the minutes of meeting of the Indian Cabinet, the Mountbatten papers to show that the minute the accession was finalised, J&K became an integral part of India.

Dwivedi argues – ‘..Our independence is not a grant of the Indian Independence Act, 1947. We had already resolved to form a Republic. We amended the adaptation order to make it clear to the rulers of all states that the moment you sign the Instrument, you are a part of the Union, you are integral.’

Outlining the ambit of powers that was enjoyed by the Constituent Assembly of J&K, Dwivedi says that while framing the J&K Constitution, the J&K Constituent Assembly did not enjoy the same freedom that the Constituent Assembly of India had.

He elaborates– ‘..It was bound by Article 1. It could not declare that we are not the federal unit of India....Throughout it follows the dictat and respects the Constitution of India and there is very little difference in it. This methodology of the J&K Constituent Assembly is very akin to the juristic concept of devolution of powers. It is not an independent power like the Constituent Assembly of India.’

Dwivedi says– ‘The petitioners contend that the source of these two bodies flows from the crown of Harisingh. That is to say, residuary sovereignty, remnant sovereignty, and internal sovereignty...From this idea of remaining sovereignty, there was a further concept introduced - bilateralism. There are two sovereigns- the main sovereign and the remnant sovereign...if you accept that some sovereignty remained after the signing of the Instrument of Accession– that is very potent.’

Dwivedi says– ‘So the fact that Parliament’s recommendation has been obtained...the Parliament is not a foreign body. Any issue can be brought before the Parliament. Obtaining of recommendation is not foreign to the exercise of power under Article 370(3).’

He points out that instead of an executive action being taken, the whole Parliament was taken into confidence while abrogating Article 370, and that included members of the Parliament of Kashmir who are also represented under the council of ministers. He highlights that since the Council of Ministers is responsible to the Parliament, it can always go to the Parliament.

Dwivedi contends that the word ‘recommendation’ under Article 370(3) means that the assent of the Constituent Assembly was not necessary to abrogate Article 370.

Dwivedi submits– ‘ A power which enables amendment of the provisions of the Constitution, be it a derived constitutional power – its nature is constituent. The fact that it rests with the Parliament or the President would not make a difference. It is certainly not like the ordinance-making power.’

Dwivedi says that the proviso to Article 370(3) cannot be construed to mean that if it lapses, the constituent power also lapses.

‘Yes, the proviso is a limitation so long as the J&K Constituent assembly is alive. It’s death does not mean the death of the main power’, he adds.

The Bench has convened. The hearing has begun.

The Constitution Bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant will continue to hear arguments advanced by the Union government today.

The Centre on Thursday conveyed to the Supreme Court its inability to commit to an exact time period within which the Union Territory of Jammu and Kashmir would be restored to full Statehood. The Union government, however, said Jammu and Kashmir was ready to hold elections “any time now”.

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