24 Aug 2023 7:37 AM GMT
After an exhaustive span of nine days dedicated to hearings, the petitioners have drawn the curtains on their arguments in the batch of pleas challenging the dissolution of Jammu and Kashmir's special status under Article 370. The Constitution bench of the Supreme Court, led by Chief Justice of India DY Chandrachud and composed of Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, presided over these hearings.
This article is a comprehensive and concise encapsulation of all the arguments raised by the petitioners. It seeks to serve as a means to navigate through all the arguments raised by the petitioners in the matter so far.
ON HISTORY AND CONTOURS OF ARTICLE 370
The petitioner counsels all stressed upon the unique nature of J&K's relationship with India which got embodied in the Indian constitutional setup. In this context, the petitioners provided the bench with a history of J&K's accession with India and the subsequent formation of the Constitution of J&K. While stating that the concept of sovereignty had two components–internal and external sovereignty, it was highlighted that the Maharaja of J&K did not give up the internal sovereignty to the Dominion of India while acceding as he never signed a merger agreement with India. Thus, while the power to make laws relating to foreign affairs, communication, and defence lied with the Union as per the Instrument of Accession (IoA), the internal sovereignty of J&K which provided it with powers to legislate on all other matters remained with the Maharaja. It was asserted that this residual power of the Maharaja came to be subsumed by the Article 370, which gave J&K a special status and helped the state retain its constitutional autonomy.
Senior Advocate Gopal Subramanium, in his arguments asserted that the two frameworks of the Constitution of India and the Constitution of J&K were not isolated entities but rather intertwined in a complementary manner. Their coexistence, he emphasized, formed the very essence of the dynamic relationship between India and J&K. In this context, it was added that there existed not one but two Constituent Assemblies- one of India and another of the J&K. Article 370, as per the senior counsel, acted as a "bridge" between the state of J&K and India and removing it would mean removing that passage.
The argument that Article 370 had assumed permanence and was no longer a 'temporary' provision post the dissolution of the J&K Constituent Assembly in 1957 was raised by various counsels throughout the proceedings. It was argued by Senior Advocate Sibal that Article 370 was called a 'temporary' provision only because when the Constitution of India came into force, the Constituent Assembly of J&K did not exist. He argued that the Constitution makers foresaw the formation of the Constituent Assembly of J&K, and it was understood that this Assembly would have the authority to determine the future course of Article 370. Once the Constituent Assembly came into being, created the Constitution for the State, and then ceased to exist after its tenure from 1951 to 1957 without recommending the removal of Article 370, the Article became a permanent feature of the Constitution. It was also argued that the Constituent Assembly had already made its mind and decided not to abrogate Article 370. In a similar vein, Senior Advocate Dushyant Dave asserted that the purpose of Article 370(3) (which provided for means to abrogate Article 370) was limited and it only existed so that the Constituent Assembly of J&K could decide whether Article 370 was to remain operative or not. Thus, once the Constituent Assembly had dissolved, Article 370(3) ceased to exist, making Article 370 a permanent feature of the Indian Constitution.
Senior Advocate Zaffar Shah stated that the history of the region solidified the idea of protecting individuals who lived in the State of J&K as permanent residents. Tracing the roots of this protection, Shah asserted that the same was granted to the permanent residents in terms of a notification of 1927. He said that at that time the King of the region would bring people from other regions of the country such as Punjab and permanent residents of J&K were left without any jobs. Owing to the agitation caused by this, a notification was passed in 1927 which restricted appointment to permanent residents. He argued that this was essential to keep the region intact.
Interestingly, Senior Advocate Rakesh Dwivedi took a different route while interpreting Article 370 and stated that Article 370 ceased to operate entirely once the Constitution of J&K was enacted in 1957. Accordingly, all the powers conferred under Article 370 (to abrogate it) also ceased to operate when the J&K Constitution was made. Referring to Article 370 as an 'interim arrangement', he said that the final decision with regard to the jurisdiction of the Union and the Indian Parliament over Kashmir as well as the Centre and State relations was always meant to be taken by the Constituent Assembly.
ON THE PROCEDURE ADOPTED BY THE UNION
For context, Article 370 could only be amended by the recommendation of the J&K Constituent Assembly as per Article 370(3). However, the J&K Constituent Assembly had already dissolved in 1957. Thus, the 2019 CO 272 order introduced a clause to Article 367. This clause stated that the expression 'Constituent Assembly of the State', referred to in Article 370, should be read as the 'Legislative Assembly of the State'. Since there was no legislative assembly of J&K owing to its dissolution and the state was under Presidential rule, the recommendation of the Parliament was treated as equivalent to the recommendation of the legislative assembly.
Referring to this, it was argued that a constituent assembly was a political body made to draft a Constitution and was not confined by anything. On the other hand, a legislative assembly was elected by the people and had to strictly work within the confines of the Constitution. Thus, the Indian parliament, under the current constitutional framework, could not convert itself into a Constituent Assembly.
The petitioners argued that the concurrence of the State of J&K to pass the 2019 Presidential Orders was necessary. In this context, Senior Advocate Sibal underlined that all previous Constitution Orders though which substantive provisions of the Constitution of India were made applicable to J&K were passed with concurrence of the State of J&K. On a similar vein, Senior Advocate Zaffar Shah asserted that Article 370 envisaged the government of the state to be aided and advised by the council of ministers. He added that the same was an extremely important part of the power to be exercised by the Governor as the head of the state in making any kind of recommendation to the President. Thus, Shah contended that the Governor, by communicating the State Government's concurrence to pass the 2019 Presidential Order when there existed no council of ministers, had breached this oath under Article 31 of the J&K Constitution and was liable to be impeached. It was also highlighted that Article 370(1)(i) used the term “consultation” and Article 370(1)(ii) as well as 370(1)(d) used the term "concurrence". Shah underlined that "concurrence" meant that both parties had to agree.
The petitioners in their arguments also stressed upon the misuse of Article 356, which imposes President's Rule in a State. The counsels underscored the historical misuse of Article 356 and emphasized that this provision was never intended to be exploited in the manner witnessed in J&K. It was argued that there were certain "conditionalities" necessary for the exercise of Article 356, as per which all the documents concerning the President's Rule had to be made publicly available and placed before the Parliament. The same was not done in this case. Further, it was emphasised by various counsels that the purpose of Article 356 was to restore state machinery and not destroy it but the President's Rule in J&K was imposed to destroy the state legislature. It was added that President's Rule under Article 356 was in its nature "temporary" and thus permanent actions could not be taken under it. It was also argued that under Article 356 Union could only exercise the functions of the State Government and not the powers. However, Article 370 provided the State Government with powers, and not merely functions. Thus, the Union could not exercise powers of state legislature by utilising Article 356.
The petitioners argued that the amendment of Article 370 through Article 367 was invalid. For context, as Article 370 could not have been amended directly without the recommendation of the Constituent Assembly of J&K, the 2019 Orders had amended Article 367 (a provision related to interpretation clauses within the Constitution) to interpret the words 'Constituent Assembly' under Article 370 as 'Legislative Assembly of J&K' and the term 'Government of J&K' as 'Governor of J&K'.
Referring to this, Senior Advocate Gopal Subramanium asserted that the Union had "emasculated bilateralism inbuilt in Article 370(1)" and its actions had allowed the Centre to do indirectly, something which could not have been done directly.
Senior Advocate Gopal Sankaranarayanan also discussed this and underlined the potential misuse of Article 367. He asserted that if this course of action was allowed, then it would mean that the executive could change the meanings of words with a simple amendment to Article 367, instead of following the process under Article 368, which prescribes that ratification by majority of state assemblies are required for amending certain core provisions of the Constitution. Thus, under the guise of amending the definition clauses, substantive amendments could be carried out. Providing an 'extreme' example of the same, Sankaranarayanan said, "For example- the word 'person' in Article 21 can be interpreted to mean 'person accused of an offence'. In 367, I'll put an interpretation clause and say person means person accused of an offence. So all other rights under Article 21 are out of the window."
On the correct procedure required to amend or abrogate Article 370, it was argued that post the dissolution of the Constituent Assembly, Article 370(2) and (3) became otiose. Thus, to dissolve Article 370, the proper procedure was to amend the Indian Constitution and then repeal Article 370 as per Article 368. This was because Article 370(1) was an executive power, which could only be amended through Article 368.
ON INDIAN CONSTITUTIONAL ETHOS
The petitioners emphasised that India followed asymmetrical federalism and a 'dual-polity' system. The concept of asymmetric federalism recognizes that the diversity and heterogeneity of a polity are reflected in the diversity of its federal arrangements. Thus, it was asserted that the Indian Constitution took note of special conditions and special needs of people. This was a core feature of the Indian federal structure and could not be removed. In this context, it was argued that autonomy of States within the federation was fundamental to the Constitution and that special provisions made in relation to people of different States were a regular feature of the Constitution. "Take that away and we don't need such a big Constitution," Senior Advocate Rajeev Dhavan had said during his arguments.
Another argument raised by petitioner counsels was that while Article 3 of the Indian Constitution granted the power to Union to alter the boundaries of states and even create smaller states through bifurcation, it had never before been used to convert an entire state into a Union Territory (UT). The argument first raised by Senior Advocate Sibal was elaborated upon by Senior Advocate CU Singh who submitted that historical context showed that Article 3 had always been used for increasing self governance by converting UTs into States and not the other way round. It was also argued that the essence of representative democracy was compromised when Parliament becomes the sole spokesperson for a region's wishes, disregarding the constitutional requirement to consider the views of the state.
Elaborating upon the impact of turning J&K into a UT on the constitutional structure, Senior Advocate Shekhar Naphade and Senior Advocate CU Singh highlighted the following–
1. Ladakh had no representative in the Rajya Sabha. "People of Ladakh therefore do not count as far as Rajya Sabha is concerned. So much for democracy," said Naphade while contending that people of Ladakh did not even have a say in the election of the Chairman of the Council of States under Articles 89 and 90.
2. J&K no longer has proportionate representation in the Lok Sabha. It was argued that under Article 81(2), as far as other states were concerned, the number of seats were proportionate to the population of the State. But the same was no longer true for J&K.
3. J&K has no say in election of President. Naphade contended that for the election of the President, the electorate contained MPs from both Rajya Sabha and Lok Sabha and also the legislative members of respective states. Since J&K was not a state any more, it would have no say in the election of the President.
4. People of J&K and Ladakh would have no representation in the GST council under Article 279A.
5. For appointment of High Court judges, while as far as other states were concerned, the governor was to be consulted. However, the Governor had to act on the aid and advice of council of ministers. Since there was none in J&K, this aspect was also affected.
6. Legislative powers under Article 246 of the Constitution read with the Seventh Schedule as applicable to Jammu and Kashmir were affected by the transfer of such powers from the State to the Centre.
7. Executive powers with the State under Article 162 with respect to List II and III were also denuded.
8. Article 73 which had a specific provision stating that Union cannot exercise powers of the State List was also affected.
Senior Advocate Menaka Guruswamy argued that the foundational intentions of the Constitution's drafters had to be taken into consideration. She stated that the court's approach to constitutional interpretation had always been transformative and expansive and the same was commendable because of India's complex foundation. She argued that the Court's jurisprudential moorings derived legitimacy from the drafters' constitutional intention. Thus, the founders' intentions could not be sidelined.
ON POLITICAL AGENDA
Elaborating upon the backdrop of the abrogation of Article 370, Senior Advocate Dushyant Dave asserted that the ruling party had exercised its constitutional powers to achieve political ends and the same could not be done. It was stated that the BJP had formed a government in association with a local party in J&K and it suddenly withdrew the support from that government. As a result, the government fell. Eventually, the governor's rule and then later the President's Rule was passed. Highlighting the trajectory of the case, Dave had asked– "What more classic example of abuse of power than this?"
In his arguments, Senior Advocate Dushyant Dave also took the bench through the 2019 BJP Election manifesto which provided that if the voters voted for BJP, it would abrogate Article 370. In this context, Dave asserted that election manifestos could not be contrary to the Constitutional scheme and in 2015, even the Election Commission had issued guidelines to ensure that the manifestos must be as per constitutional scheme. He said–
"Today, because you have majority in parliament, you have done this. The only reason you did it is because you told people of India that vote for me and I'll abrogate 370. That shows that the power has been exercised for colourable considerations."
Senior Advocate Nitya Ramakrishnan, in her arguments, challenged the assumption that Article 370 was temporary and served as a means of 'greater integration'. She urged the court for reconsidering this conventional narrative and contended that the notion that Article 370 was established as a stepping stone to eventual integration was fundamentally flawed. Integration, she argued, was not merely a measure of Central control but rather a complex process that extended beyond administrative governance.
Senior Advocate Nitya Ramakrishnan expressed concerns that any attempts to modify Article 370 without adhering to the proper constitutional processes could undermine the democratic principles enshrined in the article. She criticized the erosion of the democratic will of the people of J&K through processes she deemed to be motivated by "malintent." In this context, Ramakrishnan highlighted the circumstances surrounding the imposition of Governor's rule and the subsequent dissolution of the state assembly. She questioned the swift dissolution of the house within 30 minutes of political parties expressing their readiness to form a government. She presented evidence, including WhatsApp messages and public tweets, to emphasize that the governor's decision appeared hasty and possibly lacked a reasonable basis.
She also referred to the interview given by Satyapal Malik (Governor of J&K) to Karan Thapar of 'The Wire' in April this year to highlight that the Governor had no prior knowledge about the Centre's decisions on August 4, 2019. Ramakrishnan read out the following portion from Malik's interview:
"I did not know anything. I was merely called by the home minister one day prior saying, Satyapal I’m sending a letter tomorrow morning please get it passed by a committee before 11 tomorrow and send it to me".
Detailed reports of each day's hearing given below :