Day 6: 21 January 2020
During the day-long hearing today, Senior Advocate Dinesh Dwivedi and later on Sr.Adv. Sanjay Parikh touched upon three key issues:
Prior to the start of substantive arguments, the Bench made some clarifications as regards the order in which the counsels will make their submissions and the issues they will be addressing.
When the Bench assembled, Sr.Adv.Dwivedi submitted that there is a conflict between two earlier Constitution Bench judgments on the scope of Article 370. Therefore, the present set of challenges needs to be referred to a larger bench, added Dwivedi. Although some counsels were opposed to this suggestion, the Bench directed Sr.Adv.Dwivedi and Sr.Adv. Sanjay Parikh to address it on the reference issue.
Article 370 is temporary in nature
Sr.Adv.Dwivedi began his submissions by submitting that he was praying for the abrogation orders to be set aside. He then went on to argue that Article 370 was meant to be a temporary arrangement and with the dissolution of the Constituent Assembly for Jammu and Kashmir (‘J&K CA’), the provision ceased to have effect. Elaborating on this, he submitted that although no time line was provided for Article 370 to cease operation, it was meant to operate only till such time that a constitution was framed for J&K. Once the J&K Constitution came into effect, it became the governing document for the relationship between the Union and J&K, added Dwivedi.
In the same vein, Dwivedi added that the consent of the State Government for Presidential Orders under Article 370(1) could only have been given till such time the J&K CA came into being. He relied substantially on the Constituent Assembly Debates and the decision in Prem Nath Kaul to assert that the constitution framers envisaged the powers under the provision to be temporary in nature and the final say on its continuation was left to the J&K CA.
Parliament’s amendment powers do not extend to J&K
Another argument that was strongly canvassed by Dwivedi was in relation to the applicability of the Constitution of India to J&K. He laid special emphasis on Article 368 (which provides for the Parliament’s power to amend the Constitution) and pointed out that the language used in it only allows amending the provisions of ‘THIS’ constitution, i.e, Constitution of India. Thus, he argued that Article 368 doesn't permit amendment of the J&K Constitution.
In the course of his submissions, he also sought to provide historical credence to the above argument. He did so by stating that while the power of amendment is necessary to enable changes based on changes in social order, it is not unlimited. Moreover, the federal arrangement entered into with J&K was such that it was given more flexibility within the federal scheme. Thus, he concluded that the power to amend under Article 368 was neither uniform nor applicable to J&K.
Distinguishing Mohd. Damnoo and Sampat Prakash
Substantial time was spent by Sr.Adv.Dwivedi in explaining why the judgments in Mohd.Damnoo and Sampat Prakash do not negate the petitioner’s case that the abrogation orders are invalid.
(Note: In Damnoo, an amendment to Art 370 was effected much like the way it was done in the recent abrogation orders and the same was upheld by the Supreme Court of India. In Sampat Prakash, certain Presidential Orders under Article 370 were upheld)
As for Mohd. Damnoo, he submitted that the word 'Sadr-e-Riyasat' was first deleted from the J&K Constitution by an amendment dated April 10, 1965 and replaced with the word 'Governor'. It was only after this that the Constitution of India was similarly amended in November, 1965. This, he said, indicates that Article 370 does not control the power of amendment of the J&K Constitution. Therefore, Article 370 could not be utilized for repealing the J&K Constitution itself, he submitted.
Mr. Dwivedi then moved on to distinguishing the judgment in Sampat Prakash. He submitted that the judgment relied upon reasons, which were based on Presidential orders passed before the Constitution of J&K came into being (in 1952 and 1954). Thereafter, the J&K Constituent Assembly gave its concurrence to these orders as well. However, those reasons could not be used later, after the J&K Constituent Assembly ceased to exist, to justify similar Presidential orders. Once the Assembly was no longer there, the Presidential powers were also curtailed.
He further submitted that if Article 370 is interpreted in a way that allows for amending the relationship between J&K and the State, then the purpose of carving out a separate constitution for J&K would be defeated. This, he submitted, would give the Union the precise power that it did not get under the deal that was struck with the Maharaja when J&K joined the Union of India.
Thereafter, Justice Subhash Reddy enquired as to who could recommend the abrogation of Article 370, now that the J&K Constituent Assembly had ceased to exist. Sr. Adv. Dwivedi responded that even though perhaps there is no provision for this at all, but under no circumstance can extra-constitutional means be taken.
Before concluding his arguments, he reiterated that there are two parallel constitutions at work in the present instance - the Constitution of India and that of J&K. Therefore, the power to amend/repeal must be found in either one of those and since it is not, there can't be a constitutional repeal.
Article 370 is 'frozen in time'
Sr.Adv.Sanjay Parikh thereafter commenced arguments on behalf of the Petitioners in WP 1368/2019 – People’s Union for Civil Liberties. He argued that ‘Article 370 was frozen in time’, i.e., everything that could be done under the provision could only have been done while the J&K Constituent Assembly still existed. Once the Assembly ceased to exist, he submitted that the provision was frozen in time and was only kept on the books as proof of the manner in which the accession and constitution-framing for J&K took place.
Given this, he submitted that all Presidential Orders issued after the cessation of the J&K Constituent Assembly are void ab initio (ineffective from the beginning) because they could not have been issued without the concurrence of the J&K Constituent Assembly.
With this, the bench rose for the day. Sr.Adv. Parikh will continue tomorrow and is expected to address the Court for another hour.
(Court reporting by Ila Sheel and Mansi Sood)