Supreme Court hearing on Article 370 abrogation | Day 16

Dave says further– ‘There is nothing, even after 2019 violence has gone on unabated. People are being killed. Soldiers are dying. You have millions of troops...yes, tourism has developed because Kashmir is the most beautiful place in the world.’

Dave submits–

‘It is not that people of J&K will die if Article 370 is taken away. The question is people have a right to feel...a constitutional promise can it be taken away in this manner that has been done? They are also citizens of India. They are not foreigners. You are taking away from a sizeable section of India a special status which was conferred upon them by Constitutional framers’.

Dave argues– ‘It is not the case of the government of India that Article 370 has not worked for the last 73 years. Not one example to show that Article 370 has failed. Every time the government wanted to apply anything, it was automatically accepted by the State of J&K. So it is unfathomable that why is it that suddenly you get up and overnight do this? In their manifesto, the BJP categorically says in 2019 that we will abrogate Article 370. Because 370 had become a bone of contention with certain sections of the country.’

Dave underscores that Article 370 was never meant to be a temporary provision and accordingly says–

‘..For 70 years if the government of India order after order exercises powers under Article 370 can it now lie in their mouth to say that Article 370 is temporary? That is how they have acted..merely because the government has changed does it mean it has become temporary? Article 370 was never meant to be temporary. The only reason why it was made temporary was to give the Constituent Assembly a right.’

Dave argues – ‘..Whichever way your Lordships look at this- democracy, federalism, rule of law- each one of them is a basic structure of the Constitution. Every one of those principles is completely thrown out of the window by this.’

Senior advocate Rajeev Dhavan concludes his arguments by saying– ‘What is the reliefs we are seeking? If we stay within a very a narrow surface..then Mr. Sibal is right, all your Lordships have to adjudicate is the temporality of Article 370, C.O. 272, C.O.273 and whether mandatory provisions are defeasible. That is all that is before your Lordships.....as soon as Article 370 is born that is the provision is the incorporated provision and there is no other.’

Reiterating that there is a distinction between internal and external sovereignty, Dhavan says–

‘Nobody has argued that the Indian Constitution is not sovereign or that Article 1 doesn’t apply across the board. But I had earlier made a distinction between internal and external sovereignty. How sovereignty is to be exercised is what one means by the internal sovereignty. It is the exercise of sovereignty distributed throughout the Constitution.’

Dhavan says– ‘They are (Centre) unable to provide a roadmap for the restoration of statehood. They too are in essence arguing that the Reorganization Act is transitional in nature.....This is no roadmap at all. It is entirely illusory.’

Dhavan refers to Section 13 of the J&K Constitution to show that socialism and secularism are recognised in the J&K Constitution contrary to the arguments of the respondents.

[Section 13 of the J&K Constitution- State to establish a socialist order of society for the promotion of welfare of the people: prime object of the State consistent with the ideals and objectives of the freedom movement envisaged In “New Kashmir” shall be the promotion of the welfare of the mass of the people by establishing and preserving a socialist order of society wherein all exploitation of man has been abolished and wherein justice-social, economic and political-shall inform all the institutions of national life.]

Dhavan says– ‘Any compromises in the Constitution follow from an important insight of Fali Nariman- if today we were asked to make a constitution, we would not succeed...Israel was never able to come to terms with a constitution because it never was able to evolve a compromise...That is the process of constitution making - to accommodate a large number of views and come to a compromise.’

Refuting the submissions of the respondents, Dhavan contends–

‘The argument from the other side is that it remained temporary for 60-odd years. The argument is just a farce. If the Constitution has continued for such a long period of time and being used for such a long period of time, you cannot say that it is a temporary provision. ‘

Dhavan says–

‘Democracy had to be preserved as part of co-operative federalism. Hence to make it a balanced co-operative federalism we find the words concurrence, consultation, and recommend. These are methods of co-operation in a co-operative federalism and they are writ large in the sixth-schedule as well.’

Shah concludes his arguments by saying–

‘Insofar as the development is concerned, they say self-governance is better than good governance - give our self-governance back. They say the nation has to grow, we want to have a unified nation. Of course, very good thought. But for that you need to win over the hearts of the people....You cannot form a nation by force or by compulsion. Win the hearts of the people.’

Shah submits–

‘Why can’t the Union of India accept that there can be two Constitutions? Why can’t the Union of India accept that it is a kind of a federation in which there can be two Constitutions? There are examples all over the world where there can be two Constitutions. It is not a solitary case in the world. Why can’t that fact be accepted?’

Senior advocate Zaffar Shah argues that residual sovereignty remained with the Maharaja of J&K which eventually got transferred to the people of J&K. He says that in the exercise of such a residual sovereignty, the constitution of J&K was made.

Subramanium says that powers under Article 356 [President’s Rule] were never intended to be used for the purpose of usurping state legislatures.

‘That notional vesting of power is limited for a small purpose under Article 356. Article 370 is not a purpose intra vires Article 356. It is alien to Article 356’, he adds.

Subramanium says– ‘It is a Constitution. The J&K HC owes its existence to this constitution. The legislature of J&K owes its existence to this constitution. These are institutions of a permanent nature established under the Constitution....the establishment of the institutions owes their genesis not to the Indian Constitution but to the J&K Constitution’.

Subramanium refers to Section 3 of the J&K Constitution and says–

‘This is a part of a Constitution. What is the further integration we are talking about? It is an article of faith. It is a parchment of pride for the people of J&K...they have said this in the forefront in Section 3.

[Note: Section 3 of J&K Constitution- Relationship of the State with the Union of India: The State of Jammu and Kashmir is and shall be an integral part of the Union of India.]

Subramanium refers to the J&K Constitution and says–

‘The J&K Constitution not only makes integration absolutely beyond any pale of doubt. Unity and integrity with India is beyond the pale of doubt in the Constitution. It reserves provisions for the application of the Constitution of India in the State of J&K’.

Subramanium argues– ‘President is a part of the Parliament. Parliament, by its very definition, includes the President and two houses. The President can never act without the aid and advice of the council of ministers. The governors could but not the President. A claim of untrammeled power of President is flawed.’

Subramanium says– ‘It was the Constitution of India that gave the people of J&K to have the ability to determine their political future. The constitution does recognise the Jammu and Kashmir Constitution. Please see the text of Article 370 itself.’

Senior advocate Kapil Sibal concludes his submissions by saying– ‘Your Lordships are ultimately the arbiter of what this Constitution should look like and how it is to be interpreted. But I only want to request your Lordships to think of one thing as I walk out in silence from this court – let the court speak on behalf of the people of India because this court, this government, or any government or any administration acts for the people of India and it should not be that acts are done when a part of the people of India are silent– who have never been consulted and whose fate would be decided by the cabinet sitting here without reference to the Parliament, without reference to legislature, without reference to the people..people are central to the Constitution of India, we should not forget that.’

Questioning why the Union government has not yet restored J&K’s statehood, Sibal submits–

‘Then it is also not their case that they did it for national security. Pulwama happened in February 2019 during the President’s rule. And then they held elections in May 2019. What is the justification for not constituting the state for 4.5 years? You say you are going to have municipal, and local governance elections, and tourism has increased. So what is the impediment then? What is the constitutional logic that you can use to deny people of J&K statehood?’, he says.

Sibal argues that there is no question of impossibility because there is no constitutional obligation of abrogation imposed under Article 370.

‘Now coming to impossibility- an argument not raised in counter affidavits...If there is a constitutional obligation to be performed and it has to be performed, then the principle of impossibility comes...where is the obligation for Article 370?.. It says “may” not “shall”. Where is the question of impossibility?’, he adds.

[Article 370 (3) reads as – Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification.]

Sibal says– ‘Once the dissolution (dissolution of the Assembly) took place, Article 356 (President’s Rule) could not be imposed. Any act of dissolution has to take place after the aid and advice of the Council of Ministers.’

Sibal says that abrogation of Article 370 is not possible without the concurrence or consultation with the State government.

‘..When it comes to Article 370(1)(b), you have to consult or concur. If it comes to Article 370(1)(d), again consult and concur. When it comes to Article 370(3), you can abrogate without consultation or concurrence? How can that interpretation ever be accepted by a constitutional court? That is a constitutional absurdity- that for an individual article you have to concur but for the whole abrogation you don’t have to concur?’, he adds.

CJI Chandrachud says– ‘Equally the proclamation executed by Yuvraj says that the entire relationship between J&K and Union would be governed by the Constitution of India and all previous understandings are superseded.’

Sibal contends that all other princely states followed a uniform pattern of integration, other than J&K and that it was the only state that was excluded from Part B states.

‘Bilateralism is at the heart of the process...There cannot be a unilateral act by the Parliament. There is no silence in the Constitution’, he adds.

CJI Chandrachud continues further– ‘...On merits, it is on the court to separate the grain from the shaft but I do not think that...we have not heard the government. We will put a lid on this. We have not heard from either the Attorney General or the Solicitor General that these petitions should be dismissed on the grounds that they are a separatist agenda. They have argued the matter in merits. It has been argued on constitutional terms. We have said that we will resolve on these terms...sometimes when intervenors come before this court, there is anguish...that anguish- we as judges know how to deal with it.’

CJI Chandrachud remarks– ‘Mr Sankarnarayanan, this is unfortunate. Nobody can say that because a petition under Article 32 has been filed...up to this point nobody has said that the filing of the petition constitutes separatist agenda. Access to our court for ventilating grievances of citizens within the framework of the Constitution is a constitutional right in itself. Anyone who accesses justice under Article 32 cannot be turned out on the ground that you are following this agenda or that agenda.

Objecting to the contentions of the respondents, Senior Advocate Gopal Sankarnarayanan says– ‘ They say pushing a separatist agenda. Filing a petition in this court is pushing a separatist agenda? I have a very strong objection to the Government of India taking this stand. All of us are pushing a separatist agenda by being here.’

SG Tushar Mehta says – ‘...I will not read it but the first thing which was highlighted in a public rally. My learned friend objects to this being televised but this is a public rally. See this...when the terrorist attack took place...sympathy is only for terrorists and civilians. India is referred to as if it is a foreign country. His affidavit must say that I withdraw these statements. I do not support terrorism, I do not support any separatist activity and no citizen in this country can logically say that.’

Solicitor General Tushar Mehta refers to the affidavit filed by National Conference leader Mohammad Akbar Lone.

‘I saw his (Mohammad Akbar Lone’s) affidavit last night. I would request your lordships to see three statements’, he says.

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 rejoinder submissions advanced by the petitioners today. The Respondents concluded their arguments on September 4.

The Supreme Court on September 4 said it wants National Conference party leader Mohammad Akbar Lone, a petitioner in the Article 370 abrogation challenge case, to file an affidavit stating that he “unconditionally accepts” that Jammu and Kashmir is an integral part of India and he owes allegiance to the country’s Constitution.

Read more here.

Chief Justice of India D.Y. Chandrachud on September 4 said petitioners were placing Article 370 on a pedestal loftier than the Basic Structure Doctrine of the Constitution and even beyond the reach of the amending powers of Parliament.

Read more here.