Supreme Court hearing on Article 370 abrogation | Day 8

Ramakrishnan says that integration is neither a linear concept nor a quantitative one. She apprises the Bench that her arguments will be focused on shared sovereignty and integration principle.

Sen says – ‘...Another anomaly is that C.O.273 abolishes the legislature of the State. Just before this C.O.272 was passed and it applies all provisions of the Constitution. When you abolish the legislative council it has to be as per Article 169 of Constitution.’

Sen apprises the Bench that there is no materail on record to show why Article 356 [President’s Rule] was imposed. He points out that J&K rises above a number of state when it comes to effective governance based on the rule of law as per a NITI Aayog report.

Sen says that if one were to do away with this thing (Article 370) which involves historically a religious minority, that would be a regressive step.

Sen submits that asymmetrical federalism provides protection against majoritarianism and that the Indian Constitution is anti-majoritarianism.

Sen says – ‘...I will show that if there is a conscious choice to remain a minority in a region in the backdrop of horrific violence of partition, when there is a constitutional promise in the nature of Article 370, it should be strictly construed. ‘

Senior Advocate P.C. Sen says that his arguments will centre around – 1. History 2. Jurisprudence 3. Constitutional Ethos

Parikh says that the recommendation of the Constituent Assembly was interchanged by the recommendation of the Parliament. He highlights that what you cannot do directly, cannot be done indirectly.

He also apprises the Bench that Article 367 (which stipulates how the Constituion should be interpreted) was used to abrogate Article 370 becuase they could not have changed the article directly so they did it indirrectly.

Summarising Parikh’s arguments, CJI Chandrachud says – ‘So Article 357 has not been made applicable. And therefore, no Parliament can assume to itself the power of the state legislature to enact law and cannot delegate it further to the President’.

Parikh says – ‘ The 1954 presidential order was issued after the concurrence of the constituent assembly and thus the subsequent presidential orders were issued under the assumption that constituent assembly approval pre-exists’.

He highlights that if the tenure of the constituent assembly comes to and end then there can be no concurrence.

Parikh submits – ‘ The people of Kashmir came together and gave themselves a manifesto. They said they want a Constitution and economic plan for Kashmir. The sovereignty rests with the people and they express their sovereignty in a specific way. This sovereignty was translated into the J&K constitution. When there is a written constitution, the written constitution becomes supreme.’

Singh apprises the Bench about the enormity of effect of converting States into Union Territories in such a manner. He submits that by a simple majority and through Article 3 of the Constitition– all these constitutional rights many of which form the basic structure of the Constitution are wiped out.

Singh says – ‘Article 3 was not amended till the 18th Amendment when those two explanations were inserted. Now, the explanations have become the tail which is wagging the dog....The Union has used ‘or’ to mean that any permutation and combination for changes is available to the Parliament under Article 3.’

Singh says that the history of Articles 3 and 4 emanating from the 1919 Act and the Government of India Acts of 1919 and 1935 show that the power to alter boundaries, change names etc was always used to increase self representation and democratic self government and that there was no case of retrogration.

CJI DY Chandrachud says – ‘Why we are asking you to conclude early because with all the hard work done by your side, we have reached a point of mental saturation, not fatigue. We now have questions to be posed to other side...we will give you a little more time in rejoinder.’

The Bench has reconvened. The hearing has resumed.

The Bench rises for lunch. The hearing will resume at 2pm.

Singh apprises the Bench that for Ladakh as well as J&K both- the exercise which has been done is outside the purview of Article 3 of the Constitution.

Singh points out that right from the Government of India Act of 1919, the progression has consistently been towards greater self governance in the form of statehood.

‘I submit that the conversion of state into a Union Territory, if at all it could be done, could be done only under Article 368 because it clearly impinges on atleast 6-7 provisions. So it would require both special majority and ratification by more that 50%’, he adds.

Singh outlines the history of the exercise of converting a State into Union Territory by referring to the Government of India Act, 1919.

CJI Chandrachud asks if the conversion of the State into a Union Territory is severable from the abrogation of Article 370 itself?

Singh responds in the affirmative and says that those two are seperate.

‘Keeping aside Article 370, the framework around reorganization is crucial for the people of J&K. If reorganisation under Article 3 is upheld, it will threaten democracy and federalism for the country as a whole’, he adds.

Singh refers to the Supreme Court’s ruling in S.R Bommai v. Union of India to show that powers under Article 356 of the Constitution (President’s Rule) must be used sparingly and under exception circumstances.

[Undoubtedly, breakdown of the constitutional machinery in a State does gives rise to a situation of emergency. Emergency means a situation which is not normal, a situation which calls for urgent remedial action. Article 356 confers a power to be exercised by the President in exceptional circumstances to discharge the obligation cast upon him by Article 355. It is a measure to protect and preserve the Constitution, consistent with his oath]- Text from the judgment.

Singh says – ‘If this interpretation of Article 3 is upheld, then it is the thin end of the wedge for democracy and federalism and the country as a whole...Because then any party in power at the Centre, which also happens to be a party in power in a State, can just convert the state by a simple majority in state legislature and simple majority in the Parliament.’

Singh submits that States can be interchanged with Union Territories under Article 3 of the Constitution due to the the Constitution (Eighteenth Amendment) Act, 1966 but the Eighteenth Amendment was not applicable to J&K on August 5, 2019 [the day the Bill was passed in the Rajya Sabha].

Singh highlights that no power has been provided under Article 3 of the Constitution to convert a State into a Union Territory.

Parliament proceedings live | Rajya Sabha passes the J&K reorganisation Bill, 2019

Amit Shah moves resolution to remove all provisions of Article 370

Singh apprises the Bench that his arguments would focus on the The Jammu and Kashmir Reorganisation Act, 2019.

Senior advocate Dwivedi concludes his arguments. Senior Advocate C.U. Singh commences his arguments.

Justice Kaul remarks – ‘You are saying that all that happened for last few decades is wrong, noone understood the Constitution.’

In response Dwivedi points out that the Supreme Court had done a similar exercise in Indra Sawhney v. Union of India.

CJI Chandrachud points out that Article 5 of the J&K Constitution says that the legislative and executive powers of the State would extend to all matters except those with respect to which parliament has power to make laws. He remarks that it shows that the Indian Constitution would apply to J&K.

CJI Chandrachud enquires as to which is the provision in the J&K Constitution which is equivalent to Article 245 of the Indian Constitution [Extent of laws made by Parliament and by the Legislatures of States].

Diwivedi responds by saying that Articles 3, 4 and 5 of the J&K Constitution.

CJI Chandrachud points out that there are no provisions in the Indian Constitution that bars its applicablity to J&K.

CJI Chandrachud says – ‘The net consequence would be that the Constitution of India in its application to J&K would stand frozen as of 1957. Therefore, no further development in Indian Constitution can at all apply to J&K according to you. How can that be accepted?

Justice Kaul remarks – ‘As it (Article 370) has inadvertently remained on the statute, I feel very strongly about Article 370...I am putting to you the consequences of what would happen if we were to accept what you are saying.’

In response, Dwivedi says that there would be no adverse consequences and that it was the intent of the framers of the Constitution. He adds that Constitutions are not made for a day and that they are made for a lifetime for a State or nation.

Addressing Dwivedi Justice SK Kaul says that it is a little difficult to accept that the Constituent Assembly debates amounted to an assurance that Article 370 dissolved itself.

Dwivedi responds by saying that such power would exist with respect to all entries in the Union list.

‘I am not here to judge whether they were right or not, I am telling you what intent can be culled out from the debates’, he adds.

CJI Chandrachud asks – ‘After the Constituent Assembly took its decision in 1957, the dominion of India would have no power to apply any provisions of the Constitution?’

Dwivedi says – ‘Our thinking, which we have been tuned to think for last 70 years, is that one nation, one constitution. But where is that prescribed? When they gave this power of consultation and concurrence, it was in a peculiar situation, not beyond that.’

CJI DY Chandrachud asks if a speech made by an individual member of the Constituent Assembly represents a binding commitment by the nation to J&K and whether it could have a bearing on interpretation of the Constitution.

Dwivedi responds by saying that Article 238 of the Constitution cannot apply in relation to Article 370.

[Note: The subject of Article 238 was the applicability of the provisions of Part VI to the states listed in Part B of the First Schedule of the Indian Constitution. It was revoked by the Constitution (Seventh Amendment) Act, which was passed in 1956.]

CJI Chandrachud asks – which are the features of Article 370 that indicate that it ceases to exist post the formation of the J&K Constitution?

Dwivedi says that interpreting Article 370 to be a ‘temporary provision’ would mean that we are assigning it a meaning dehors the context.

‘The Constituent Assembly is always regarded by us as the most august assembly. They were men who fully knew what Constitution means. When they say Kashmir should frame their own constitution, they could not have implied something else....All provisions of concurrence and consultation were interim till the Constituent Assembly was formed’, he adds.

[Note: Article 370 is included in Part XXI of the Constitution titled ‘Temporary, Transitional and Special Provisions.]

Dwivedi refers to Constituent Assembly debates by Dr. Gopalaswami Ayyangar. He highlights that Article 370 was intended to be an interim arrangement until the J&K Constitution is enacted.

‘The final decision was with the Constituent Assembly - with regards to 1) the jurisdiction of the Union and Parliament over Kashmir and 2) the Centre and the state relations’, he adds.

Dwivedi points out that J&K’s inclusion in Article 1 of the Constitution does not mean that the internal sovereignty of J&K was ceded. He says that Article 370 ceases to operate once the Constitution of J&K was enacted in 1957.

Dwivedi apprises the Bench that sovereignty is a variable concept and has two components – internal and external sovereignty. He says that merely because Kashmir had ceded external sovereignty, it does not mean that internal sovereignty was also ceded.

Elucidating upon the unique nature of Kashmir’s accession, Dwivedi says – ‘Our basic theme is that Kashmir was different. Kashmir was different both in terms of accession to the Dominion of India where it ceded at a different time as an independent State or a nation...and it was different in the sense that it did not merge, unlike the other States.’

He also submits that the accession of Kashmir rested on the condition that it was not bound by the Constitution of India or any other future Constitution and that its internal sovereignty would always rest with the Ruler.

Senior advocate Dinesh Dwivedi apprises the Bench that the standstill agreement was a precondition for the Instrument of Accession (IoA) contrary to other States which had merged with the Dominion of India through merger agreements thereby ceding all their powers.

1947: Maharaja Hari Singh signs Instrument of Accession

The prelude to it was an intricate maze.

The Bench has convened. 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 Dinesh Dwivedi will continue his arguments today.

The Supreme Court on Thursday appeared unenthusiastic to accept an “invitation” to judicially review the “wisdom” behind the Union government’s decision to abrogate Article 370, which had given a special status to Jammu and Kashmir. Read more here.