Supreme Court hearing on Article 370 abrogation | Day 9

The petitioners have concluded their arguments. The Union government will commence arguments tomorrow that is on August 24. The bench rises for the day.

Sankarnarayanan says – ‘...You can see how absurd it becomes because by using powers under Article 356, can you do something which is irreversible and destructive?’

Sankarnarayanan says that the Union government could have used Article 367 and interpreted the phrase ‘the legislature of not less than 1/2 of the state’ as Rajya sabha or the law minister.

To this, CJI Chandrachud smiles and says – ‘You are giving all these ideas Mr Sankarnarayanan.’

Sankarnarayanan says that he is citing such extreme examples to show that if they are allowed to do this, heaven knows what else they could do!

Outlining the process through which the abrogation was brought about, Sankarnarayanan argues – ’....There has to be some basic meeting of minds - as with the RBI in the demonetisation case, as between the collegium and the government- that meeting of mind does not mean your mind meeting your own mind. That is what they have sidestepped. And they have done it in the Constitution which is why it is shocking. This is not some order by the executive. This is a constitutional amendment you have brought.’

Sankarnarayanan says that the J&K Constitution refers to the Constitution of India and that all prior Constitutional Orders refer to the Constitution of J&K.

‘So there is a bridge. Acknowledgment is there even in correspondence’, he adds.

CJI Chandrachud says – ‘...Does that mean that anything said by the Constituent Assembly of J&K would bind the Parliament?...The idea was to gradually bring J&K into the mainstream.’

CJI Chandrachud asks – ‘.....Is there not intrinsic evidence that Article 370 itself is self-limiting once the Constituent Assembly has come to an end? Then do we say that our constitution must be so read to see the Constitution of J&K as an overriding document which will apply in preference to our Constitution? Though the Constitution of J&K framed its relationship with the Union of India, unless that relationship is embodied in the Indian Constitution, how will it bind the dominion of India or parliament and the executive?’

CJI Chandrachud says – ‘If the terminal point of Article 370 is the Constituent Assembly’s work, then is it not necessary that the work of the Constituent Assembly of the state of J&K has to be embodied in this constitution to make it operational?’

Sankarnarayanan responds by saying that it is not necessary because it is not provided for in the Constitution.

CJI Chandrachud enquires – ‘ If there is complete silence in Article 370, then Article 370 has worked itself out both in relation to clause (1), and in relation to (2) and (3). In which case, there are two options - your line of thinking would be that the Constitution of J&K fills the void. The other view possibly is can the Constitution of a federating unit ever rise above the source of the federating unit?’

CJI Chandrachud says – ‘.....Can we not read Article 370 as indicating two terminal points? The first terminal point is in clause (2) of Article 370- namely the formation of a Constituent Assembly for framing the Constitution. The second terminal is indicated in Article 370(3) which again refers to the recommendation of Constituent Assembly. Interestingly, Article 370 is silent on what the regime should be once the Constituent Assembly is formed and has taken its decision.’

Sankarnarayanan while highlighting the unique constitutional history of Kashmir points out that for Kashmir, there was a ministry which was headed by Dr. Ayyangar and that for every other state Sardar Patel was in charge.

Sankarnarayanan argues – ‘.....Effectively, what the Pakistan government has done is to rest direct control and vest it in a council with the Prime Minister. I ask myself, isn’t India different? Aren’t we a democratic country run by a Constitution?’

Sankarnarayanan elaborates – ‘.....In 2018, Pakistan decided to pass an amendment to their 1974 interim constitution- as they call it ‘Azad Kashmir’. The other thing Pakistan did was in the same month, they passed a Government Order with reference to Gilgit Baltistan...Both those amendments and order- what it did was take away the right of self-governance. They (Pakistan) took away the self-governance of people in those two areas and vested it to themselves. It was challenged in the High Court, the High Court allowed the challenge and it was reversed by the Supreme Court.’

Pakistani PM rejects Opposition protest over Gilgit-Baltistan Order

Civil rights groups in Pakistan have criticised the order. A complete strike was observed across Gilgit-Baltistan on Sunday on the call of the joint Opposition to protest against the order.

Saying that it is interesting and disturbing at the same time, Sankarnarayanan refers to Pakistan occupying Kashmir and Gilgit Baltistan in 2018 just a month before the abrogation of Article 370.

‘In their (Pakistan’s) constitution, there is no reference to that as a part of their territory. They still harbour hopes that there will be some accession of Kashmir with them’, he adds.

Pakistan summons India’s Deputy High Commissioner over Gilgit-Baltistan

The Pakistan cabinet on May 21 approved the Gilgit-Baltistan Order 2018 to integrate the region of Gilgit-Baltistan into the federal structure of the country.

Sankarnarayanan argues that the executive is not the sovereign and that the people are the sovereigns in our constitution.

Sankarnarayanan submits that there is no way of incremental modifications being made by virtue of resurrecting the Constituent Assembly. He says that this case is about whether such a power exists and whether the procedure has been followed.

‘...The exercise of power and manner of exercise of power is the most fraudulent exercise we have seen in this country since 1970’, he adds.

Sankanarayanan says – ‘.....It appears that Article 370(1) has excluded the possibility of Article 1 and Article 370 being in any way the subject matter of orders under Article 370(1)(d). The Constituent Assembly sitting in 1952 is faced with a choice which is provided under Article 370(3) – which is, you have to decide whether you want to keep Article 370 alive in some form or jump off the board. If they made the other choice, the impact on Article 1 would be that Article 1 would not apply to them. That is the danger of recreating a constituent assembly at any point.’

CJI Chandrachud remarks – ‘....this seems to have been a very convenient procedure - having Constitutional Orders to apply the Indian Constitution to J&K and progressively bring J&K into the mainstream. These were, in that sense, pro-tem provisions until further actions could be taken’.

CJI Chandrachud says – ‘...Article 1 is a permanent feature of the Constitution. Why did Article 370(1) contain a specific reference that Article 1 applies? The reason was that during that interim period when there was a power to modify provisions related to IoA, Article 1 could also have been modified with concurrence. During that period, when other provisions could be modified, it was made clear that Article 1 could not be modified. This is a clear indicator of the fact that Article 370 was never intended to be permanent.’

Sankarnarayanan points out that constitutional history shows that the interpretation of Article 370 has been consistent without any departure. He refers to the then Home Minister Gulzari Lal Nanda speech in the Parliament on December 4, 1964.

“May I submit that Article 370 is neither a wall nor a mountain, but that it is a tunnel. It is through this tunnel that a good deal of traffic has already passed and more will. There is no wall between Jammu and Kashmir and India. At the most, you can say it is some kind of movable partition. We can move it on our own. There is nothing coming in the way.” [Text from the Speech]

CJI Chandrachud says – ‘Abdul Ghafoor Majeed Noorani has criticised the judgment in Sampat Prakash. I was reading it after someone cited it.’

Sankarnarayanan says – ‘Mr. Dwivedi made arguments on Article 370 not surviving. Your Lordships had said that Constitutional practice trumps that....Sampat Prakash squarely rejected it....The reasoning of Sampat Prakash was that C.O 44 is proof of the fact that the order itself says that we allow 370 to stand except for the modification. It was a conscious choice by Constituent Assembly.’

[Sankarnarayanan is referring to the Supreme Court’s ruling in Sampat Prakash v. State of J&K. Read the judgment here.]

Sankaranarayanan apprises the Bench about the principle called “obsta principiis” which means that when something is damaging, it should be nipped in the bud.

‘This is an encroachment on something we cherish the most- our constitution. Kashmir is just an avenue’, he adds.

Sankarnarayana says – ‘... This case, the way we see it, is not only a case for Kashmiris. It actually opens a vista to many multifarious abuses that the executive can heap on the Constitution if the means they adopted were to be utilised in the future.’

The Bench has reconvened. The hearing has resumed.

The Bench rises for lunch. Senior Advocate Gopal Sankarnarayanan is the final counsel on the petitioners’ side. The hearing will resume at 2 pm.

Bhat says – ‘...I appear for a professor and it is very embarrassing for us when we teach this beautiful document that is the Constitution of India. The special status was downgraded to the state becoming two UTs.. this was a violation of the rights of people of J&K and cooperative federalism...’.

Farasat points out that when the abrogation took place three former Chief Ministers were in detention and most of the Legislative Assembly members were also under detention under the Public Safety Act.

‘In Delhi, if the entire polity and all of the politicians, who have actually supported, been legislative members are put in this manner...this is malice in law. We determine by actions surrounding the abrogation’, he adds.

Addressing Tewari, CJI Chandrachud asks – ‘...You have nothing to say on Article 370? So why should we hear?... We will close your Interlocutory Application (IA) by taking the submission of the Solicitor General on record.’

CJI Chandrachud disposes of the IA by recording –

‘The applicant urging their submissions through Mr. Tiwari has urged that apart from the provisions contained in Part XXI of the Constitution pertaining to J&K, there are special provisions governing the Northeast. Hence, it is submitted that the interpretation by this court in Article 370 would impact other provisions. Solicitor General has submitted on specific instructions of the Union that the Union Government has no intention to affect any of the special provisions applicable to Northeast or any part of India. The reference of this case is confined to Article 370. There is no commonality of interest in the IA and the case being heard. In any event, the Solicitor General’s statement on behad of the Union allays any apprehension in this regard. Thus, the IA stands disposed off.’

Justice Gavai says – ‘..Special Provisions are there in the state of Maharashtra also. But we are only interpreting Article 370 right now.’

CJI Chandrachud says – ‘...We should not enter that territory at all. The impact of abrogation - that point has been made. Let us not focus on North East like this. The apprehensions are allayed by the statement of the central government.’

CJI Chandrachud says – ‘Why should we deal with anything in anticipation or apprehension? We are dealing with a specific provision of Article 370. We do not have to expand the ambit on impact. When as a constitutional principle the Solicitor General has informed us that the government has no such intention why should we apprehend this at all?’

Tewari clarifies by saying that he was not referring to the current central government but was referring to the principle which is at stake.

Objecting to such a submission, Solicitor General Tushar Mehta says – ‘I have instructions to say this. We must understand the difference between temporary provision which is Article 370 and special provisions with regard to the northeast. The Central government has no intention to touch any part which gives special provisions to North East and other regions. This submission will have very potential mischief. There is no apprehension and there is no need to create apprehension.’

Tewari contends – ‘.......That is how Article 370, which applies to J&K, Article 371, the six sub-parts which apply to North East, and the sixth schedule of the Constitution which applies to Assam, Tripura, and Meghalaya, becomes relevant in this matter. Even a slight apprehension in the periphery of India can have serious implications. Your lordships are currently dealing with one such situation in Manipur.’

Tewari submits that the Constitution of India in addition to being a politico-legal compact also serves as a national security instrumentality in terms of unifying the periphery of India to the interland.

‘...National security is not merely about the use of the hard power of the state. Independent India decided to manage its periphery through Constitutional guarantees. Because we were building a republic’, he adds.

Tewari says – ‘.....The underlying principle of autonomy under Article 370 and Article 371 is more or less the same. So therefore, what your lordships will hold in this matter, will have implications on Article 371.’

Guruswamy concludes her arguments by saying – ‘....We the people through our drafters made promises. It is surely an axiom of decency, and constitutional integrity to keep our promises. ‘

Guruswamy says that prior to the impugned actions, Ladakh had 4 MLAs and two Multi State Cooperative Societies. She points out that the Ladakh Autonomous Hills Development Council Act provided for the hills development councils which has now been rendered null.

Guruswamy refers to Article 171 of the Constitution [Composition of the Legislative Councils] and says – ‘...There was a reason this was done- to recognise the state, to bring diversity within the state...There was an understanding that there would be regional representation to hold the three regions together- Jammu, Kashmir, and Ladakh.’

Guruswamy argues that the abrogation of Article 370 and the subsequent Jammu and Kashmir Reorganisation Act, 2019 by abolishing the bicameralism legislature of J&K has further violated the unique autonomy secured by the State of J&K.

Guruswamy refers to Sections 4 and 5 of the J&K Constitution and says that the abrogation of Article 370 has vitiated the unique internal sovereignty guaranteed by both the J&K Constitution and the Indian Constitution.

‘...Keeping the residuary powers of the state with J&K is unique to the State of J&K...this brand of sovereignty is unique to J&K’, she adds.

Guruswamy says – ‘.....It was envisaged by our founders for the State of J&K to integrate with the Union of India. It is not just Article 1 and Article 370 which is part of that constitutional intention. It’s much more than that. It’s the specific Provisions of J&K Constitution - Sections 4 and 5. Such territorial integrity was not promised to any other state. This was all a part of the founding intention.’

Guruswamy submits that there are certain seminal founding moments for constitutions and that those moments are important because this court has walked the path of transformative & expansive constitutional interpretation.

‘Your jurisprudential moorings derive legitimacy from our drafters’ constitutional intention. If my lords had chosen a different path since the 1970s- of minimalist interpretation, of limited review- then we would not have to worry about the constitution’s founding moments’, she adds.

‘Guruswamy says – ‘.....I am on the founders’ constitutional intention. When we think of this country’s founding, at the time of partition, 46-49 hours the Assembly was drafting the constitution. We know what was happening in J&K. India’s first Prime Minister in a speech in Hindi said we are a nation whose land of this nation is strewn with blood...that is our constitutional founding.’

Guruswamy points out that yesterday a question was posed to senior advocate Dinesh Dwivedi that whether a statement made by a member of the constituent assembly can be accorded the status of the will of the people.

‘......It is a particularly important question because in this case there is not one but two constituent bodies. In many ways it is unique. It poses us a seminal constitutional question- can the constitution be altered in ways opposed to the founders’ intention?

Ramakrishnan says – ‘......In October 2019, I visited the valley with a friend.. and the one name that resonated across the valley was Mahatma Gandhi.. his legacy must be borne in mind while deciding this case.’

Addressing Ramakrishnan’s submission, Justice Kaul says – ‘This is a post facto statement’.

Ramakrishnan responds by saying – ‘....Yes, only on that level you may consider it.’

Ramakrishnan reads from the transcript of the interview given by former Governor of J&K Satyapal Malik to the news portal The Wire.

‘.....He had no idea on the night of August 4 what was coming. And he has given concurrence like this?’, she adds.

Satya Pal Malik’s statement shows how consultation was bypassed: NC, PDP

The National Conference and the Peoples Democratic Party on April 16 said former J&K Governor Satya Pal Malik’s account of the reading down of Article 370 in 2019 showed that the mandated consultation mechanism had been completely bypassed by the Centre.   

Ramakrishnan points out that it is in this state of affairs that there is a proclamation of the president’s rule and the President usurps the power of the State government under Article 370(1).

She highlights that the power under Article 356 is subject to a post-appraisal by the state legislature but however, this power is ironically used to destroy all possibilities of a state legislature.

Ramakrishnan continues to apprise the Bench about the circumstances leading up to the abrogation.

‘.....56 out of 87 MPs stake the claim. Governor is not there. It is on record that the secretary has acknowledged the WhatsApp message. He does not answer the phone, fax does not go through. He is informed on WhatsApp and a public tweet tagging the Governor is issued. By 8.16 this is done and by 8.57 we are notified that the house has been dissolved. What earthly reason does the governor have to dissolve?’

J&K | Governor's decision to dissolve Assembly 'based on material available to him from multiple sources'

The Mehbooba Mufti-led PDP and the Sajjad Lone-led People's Conference have both staked claim to form govt.

Providing a brief overview of the circumstances that led to the abrogation, Ramakrishnan says –

‘Governor’s rule was imposed because one party had withdrawn and no other political party was ready to form the government. This is why the rule was imposed, not because of any security issue or danger. Then what earthly reason did the governor have to dissolve the house within 30 mins of two political saying that we are ready to form the government?’

Ramakrishnan emphasises that the recommendation for abrogation has to emanate from an agency that is equal in mandate and stature. She adds that after 1957, there is no agency which is equal to the Constituent Assembly of J&K.

‘Some thought and sensitivity and democratic stirrings are required to think of an agency that could express this will. But one thing is clear- it cannot be any agency of the centre’, she adds.

Ramakrishnan contends that even a responsible state government’s consent will not suffice for changing the terms of Article 370 and that such a recommendation has to emanate directly from a constituent assembly. She says that a constituent assembly signifies an exclusive agency, exclusively devoted for the representation of J&K.

Ramakrisnan says – ‘...Function is a duty. Power is a discretion. It is a sui generis power given to a responsible state government. It cannot be taken over under Article 356 [President’s Rule] which is subservient to Article 370.’

Ramakrishnan argues that the will of the people of J&K permeates every part of Article 370 and that Article 370(1) continues to survive. She highlights that a Governor not advised by the council of ministers is not recognised by Article 370 and thus any Constitutional Order (C.O.) issued during the President’s Rule is not competent.

Ramakrishnan says that Article 370 reflects and incorporates an entrustment of popular sovereignty to a divisible and shared legal sovereignty between the Centre and the state. She highlights that the provision reflects the merging of the democratic will of the people of J&K with the rest of India.

Ramakrishnan says that once the people of J&K acceded, they became Indians. She points out that even before the Sikh regiment reached Srinagar, it was the Kashmiris in the valley who fought the intruders and that many of them were martyred.

‘We are not waiting for them to integrate anymore. There is a democratic argument to be made of shared sovereignty’, she adds.

Senior advocate Nitya Ramakrishnan says that the spoken or unspoken assumption that Article 370 is temporary and is lying for greater integration is fallacious.

‘Integration is not a measure of how much control the Centre has. It is not a function of central control or power. It would be wrong to say that people in Union Territories are more integrated than people in a Schedule VI area. That is not how our democracy works’, she adds.

The Bench has convened. The hearing has resumed.