Supreme Court hearing on Article 370 abrogation | Day 7

CJI Chandrachud: We would like to conclude this side’s (petitioners’) submissions by Tuesday.

The bench rises for the day. The hearing will resume again on Tuesday that is on August 22.

Dwivedi says that the IoA would not amount to a surrender of sovereignty because there is no merger agreement unlike in the case of other states.

‘The other states not only acceded before August 15 1947, they signed a precondition that they will sign the standstill agreements which cover the matters of local concerns. After that, they acceded to the Union of India’, Dwivedi adds.

Pointing out the loss of ‘dual polity’ due to the conversion of the State into a Union Territory, Dwivedi says–

‘So people of the state will now only have one legislature both for local and national issues. Their right to be governed under a dual polity goes for a toss.’

Dwivedi says that his submissions pertain to the demolition of a State into a Union Territory. He points out that Article 1 of the Constitution says that India is a ‘Union of States’.

He apprises the Bench that although Union Territories are a part of the territory of India, as per Article 1 of the Constitution, however, they are not a part of the federal structure. He submits that by reducing the State into a Union territory, it is being brought under the fold of Article 246(4) of the Constitution.

Highlighting another consequence, Naphade says that the people of J&K and Ladakh also do not have any representation in the GST council under Article 279A of the Constitution.

‘The whole constitutional structure is demolished, substantively restructured vis-a-vis J&K’, he adds.

Highlighting how the people of J&K have no say in the election of the President, Naphade points out that for the election of the President, the electorate contains the Members of Parliament of both the Rajya Sabha and the Lok Sabha as well as the legislative members of respective states. But since J&K is not a State anymore, it has no say in the election of the President.

Naphade further highlights that J&K does not have proportionate representation in the Lok Sabha which amounts to discrimination under Article 14 of the Constitution.

Outlining the impact of the abrogation, Naphade points out that Ladakh has no representative in the Rajya Sabha now and that the people of Ladakh, therefore, do not count as far as the Rajya Sabha is concerned.

Naphade submits – ‘According to me, no two interpretations are possible. There is a conscious omission of abolishing states. Because India is a Union of states. Article 3 has to be read with Article 355. If there is a breakdown of machinery, restore normalcy. You cannot abolish a state.’

Naphade says that the existence of States is a part of the basic structure of the Constitution and J&K cannot be an exception to this.

Naphade submits that there is a conscious omission in Article 3 of the Constitution with regard to the power to abolish a State.

‘...There is no ambiguity at all. There is not even a whisper of abolishing of states’, Naphade adds.

[Note: Article 3 empowers the Parliament to form new States and alter or modify the boundaries of existing states]

Naphade refers to the Supreme Court’s ruling in S.R. Bommai v. Union Of India to contend that the purpose of Article 356 of the Constitution (President’s Rule) is to restore a State.

Naphade says that the Jammu and Kashmir Reorganisation Act, 2019 was born in unconstitutionality.

Naphade submits that the Presidential Proclamation is without jurisdiction and has been invoked for a collateral purpose which is apparent on the face of the record.

He asks if the entire J&K Constitution can be suspended merely because the President has issued a proclamation under Article 356 of the Constitution.

Opining on the purpose behind Article 356 of the Constitution [President’s Rule], Naphade argues that the provision is not a license to do something unconstitutional.

‘...What is the purpose of Article 356? There is a breakdown of the machinery, accepted. The affairs of the state cannot be carried out in accordance with Constitution, accepted. But does that justify doing something which is unconstitutional?’, Naphade says.

Naphade submits that the existence of the J&K constitution is a limitation both on the powers of the President under Article 370(1)(d) and also on the power of Parliament under Articles 3 and 4.

Naphade argues– ‘...The question is, does it not contemplate that the Constitution of India, as framed, recognises the existence of the J&K Constitution and therefore doing away with that can only be through a constitutional process’.

Naphade apprises the Bench that there existed two routes for abrogating Article 370. One was through Article 370 itself but this route was closed after the dissolution of the Constituent Assembly in 1957. The other way is to take recourse to Article 368 of the Constitution.

Naphade says – ‘....The question therefore is, if the J&K Constituent Assembly was convened by a sovereign authority, that sovereignty merges into the sovereignty of the Constituent Assembly and it ultimately gets transferred to the Constitution of J&K.’

Naphade highlights that the existence of the J&K Constitution is recognised by the Constitution of India and that Article 370(1)(d) of the Constitution could not have been invoked in such a manner that it results in the complete abrogation of the J&K Constitution.

Naphade argues that there is no provision in the Indian Constitution through which the J&K Constitution could have been abrogated. He points out that Article 370(1)(d) itself recognises Constituent Assembly and that a Constituent Assembly has to be a sovereign body.

Naphade submits that no matter how widely Article 370(1)(d) is interpreted, the ‘core’ of the J&K Constitution will prevail and that the core consists of – Part II (The State-relationship with India; the territory of J&K and powers of Legis and Executive) Part V (Executive) and Part VI (Legislature) of the J&K Constitution.

The Bench has reconvened. The hearing has resumed.

The bench has risen for lunch. The hearing will resume at 2pm.

Naphade says –’ You are replacing a fundamental concept of Constituent Assembly with the Legislative Assembly. The legislative assembly is a creature or product of the Constituent Assembly. So this exercise is not permissible.’

Senior advocate Naphade submits that beneath the apparent constitutionality lies patent illegality. He argues that there are implied limitations on the power to modify.

Citing an example, Naphade says –’ Take an example - while applying the Indian constitution to J&K, let us say that Articles 14 or 21 do not apply. Will it or will it not trouble your conscience?’

Dave points out that in the 2019 manifesto, the BJP government had stated that it will repeal Article 370. He apprises the Bench that the court had earlier underscored that manifestos cannot be contrary to constitutional values and had issued directions to the Election Commission to ensure that constitutional values are upheld.

‘....The only reason you did it is because you told the people of India that vote for me and I will abrogate Article 370. That shows that the power has been exercised for colourable considerations. Actual exercise is fraud with irrelevant considerations which cannot apply’, Dave adds.

Dave submits that the parliamentary exercise of power, in this case, was a complete case of colourable exercise of power and that this was done because the J&K Assembly was dissolved. He contends further that the abrogation was a fraud on the Constitution.

Addressing Dave’s argument, CJI Chandrachud asks –’ Mr. Dave, do we really need to labour on the counter? We have to interpret the constitutional provision as it stands. How is this relevant?’

In response, Dave says – ‘I bow down. There are no reasons available in the presidential exercise, nor are they given in the counter’.

Referring to the Union government’s counter affidavit, Dave says that it is a bundle of contradictions.

Responding to the CJI, Dave says that he wants to highlight that there has been fraud on the Constitution and that the President has exercised powers under Article 370 which he is not permitted to do. He submits further that the President has exercised powers without any justification.

CJI Chandrachud points out that judicial review must be confined to a constitutional violation.

CJI Chandrachud asks Dave if he is inviting the court to judicially review the wisdom underlying the decision to abrogate Article 370.

‘Are you inviting the court to review the wisdom of the decision of the government on the abrogation of Article 370? You are saying that judicial review should reassess the basis of the government’s decision that it was not in the national interest to continue Article 370?’, CJI Chandrachud enquires.

Dave says that the abrogation was an extraordinary parliamentary act – it was neither legislative nor constituent.

Pointing out the permanent character of Article 370, Dave refers to the Supreme Court’s ruling in Sampat Prakash v. State Of Jammu & Kashmir (1968).

Dave refers to the Supreme Court’s ruling in Prem Nath Kaul v. The State Of Jammu & Kashmir (1959) to argue that the Constituent Assembly of J&K solely held the power to repeal Article 370.

Dave says that Article 370 is not merely a letter but is a reflection of the feelings of the people of J&K.

Dave contends that the constituent assembly debates are instrumental in understanding the intent behind Article 370.

‘These constitutional assembly debates took several years! These are men and women who were the most brilliant of those born in this country. We owe gratitude to them. If we were to interpret Constitution as today’s Government tells us, then we would be doing a great disservice to them. They knew what India’s problems were. They knew about the diversity of this country. They felt the pain of every part of this country. And that pain they brought in these provisions’, Dave adds.

Dave submits that for the people of J&K, Article 370 was an essential feature of the Constitution. He says – ‘Today’s house has no moral or constitutional authority to do this just because it has the majority.’

Dave says that there is a wrong narrative in the country that J&K is not a part of India due to Article 370. He says that it has always been an integral part of India and that such an incorrect narrative was also rejected by Jawaharlal Nehru.

Dave refers to statements in the Constituent Assembly debates by Dr. Gopalaswami Ayyangar.

‘Again, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the State’. [Quote from the speech]

Dave says that it is not the case of the Union government that the abrogation was necessitated because there were impediments in running the administration of the State. He says except for national security and some violence, no reason has been cited for the abrogation.

Addressing Dave, CJI Chandrachud remarks –

‘Your submission is that once Constituent Assembly made its decision, there was no question of invoking the proviso to clause (3) and ​Article 370​ becomes a permanent feature. There is one inconsistency in accepting that submission. Because if it is right, the consequence would be that once the Constituent Assembly completed its task in 1957, there could be no amendment to the Constitution at all in application to J&K under 370(2). This is belied not merely by constitutional practice but the acceptance by both the state of J&K and GOI that amendments were being made by the constitution even after 1957 and until the disputed amendment of 2019.’

CJI Chandrachud says – ‘Your whole argument is that Article 370 has worked itself out. But that would be belied by constitutional practice. Because even after 1957, there were orders issued progressively modifying the Constitution in relation to J&K. This means that Article 370 had continued to operate even thereafter. Therefore, it would not be correct to postulate that Article 370 achieved its life.’

Dave says that amendments could have been brought through Article 370(1) of the Constitution from time to time as many provisions of the Constitution were not made applicable to J&K initially.

Addressing Dave, CJI Chandrachud enquires if Article 30 had served its purpose after the Constituent Assembly finished its task in 1957 then where was the opportunity to issue constitutional orders post 1957.

‘If your argument is right, where is the power to alter Constitution at all? You are saying post-Constituent Assembly, dissolution there was no power to make any changes pertaining to JK at all! There has to be a logical consistency in how we interpret Articles 370(1), (2), (3)‘, CJI says.

Dave argues that the power to abrogate Article 370 does not lie with the President and that only the Constituent Assembly (dissolved in 1957) could have exercised such powers.

‘This Article has lived its life and achieved its purpose. Article 370(1) survives because if tomorrow the Constitution is amended and a new article is inserted, we would want it to apply to J&K also’, Dave adds.

Dave submits that the abrogation of Article 370 could not have been done without the concurrence of the J&K government. He says that ‘state government’ has to be understood in the context of democracy and cannot be interpreted as the Governor exercising omnibus powers.

Referring to Article 370, Dave adds – ‘Why is it temporary? Why? Because of democracy. You could only do it if Constituent Assembly approved it.’

Dave highlights that he has a two-fold submission. First is that the treaty (Article 370 as an extension of the IoA) has to be interpreted in light of what the Constitution provides and second is that if the treaty has to be amended then it cannot be done through a legislative act but has to be done through the exercise of Constituent power.

‘Constitution is durable. If it served a need of the hour on that day, does not mean that the need be wished away’, Dave says.

Dave reads from the In Re: The Berubai judgment – ‘... the Bill has to be passed in each House by a majority of the total membership of the House and by a majority of not less than two-thirds of the House present and voting; that is to say, it should obtain the concurrence of a substantial section of the House which may normally mean the consent of the major parties of the House, and that is a safeguard provided by the Article in matters of this kind.’

‘You cannot resort to some kind of executive power, authorise the President to do this, do away with everything that Article 3 provides in the garb of Article 356 power. It makes a mockery of constitutional safeguards’, Dave adds.

Dave continues to read from the Supreme Court’s ruling in In Re: The Berubari. He refers to the following paragraph in the judgment–

‘Therefore our conclusion is that it would not be competent to Parliament to make a law relatable to Article 3 of the Constitution for the purpose of implementing the Agreement. It is conceded by the learned Attorney-General that this conclusion must inevitably mean that the law necessary to implement the Agreement has to be passed under Article 368’.

He contends that the abrogation could not have been done through the exercise of legislative powers and that only constituent power should have been exercised under Article 368 of the Constitution.

Drawing from the Supreme Court’s ruling in Re: The Berubai, Dave says that the treaty in question (Instrument of Accession) here is between the erstwhile ruler and the Governor-General which is now transfixed into Article 370.

‘It was absolute brilliant statesmanship on their part to bring that into the Constitution to assure the people of J&K that we mean what we say. So the treaty will have to be interpreted in the light of Article 370’, Dave adds.

Senior advocate Dushyant Dave refers to the Supreme Court’s ruling in In Re: The Berubari Union (1960).

‘But though from the human point of view great hardship is inevitably involved in cession of territory by one country to the other there can be no doubt that a sovereign state can exercise its right to cede a part of its territory to a foreign state. This power, it may be added, is of course subject to the limitations which the Constitution of the state may either expressly or by necessary implication impose in that behalf; in other words, the question as to how treaties can be made by a sovereign State in regard to a cession of the national territory and how treaties, when made, can be implemented would be governed by the provisions in the Constitution of the country. Stated broadly the treaty-making power would have to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it. Whether the treaty made can be implemented by ordinary legislation or by the constitutional amendment will naturally depend on the provisions of the Constitution itself’. [Text from the judgment]

The Bench has reconvened. The hearing has resumed.

The Constitution Bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant will resume hearing from 10:30 am today.

Senior advocate Dushyant Dave will continue his arguments today.

The Supreme Court is scheduled to hear from August 2 a batch of petitions challenging abrogation of Article 370 of the Constitution that bestowed special status on the erstwhile State of Jammu and Kashmir. A five-judge constitution Bench headed by Chief Justice D.Y. Chandrachud will conduct day-to-day hearing from today.

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