Supreme Court Hears Challenge to Abrogation of Article 370 | Day 6

Petitioners argued Constitution does not allow the President to permanently abrogate Article 370 when J&K was under President’s Rule.



Hello everyone! We’ve reached day 6 of the hearings in the challenges to the abrogation of Article 370, and here’s what happened today.

Senior Advocate Rajeev Dhavan argued today, on how the Constitution recognises and engages with different realities in different states and offers bespoke solutions. India’s social, political, economic, cultural diversity often means that some states need different rules and frameworks to govern them. Article 370 and the unique framework in which the Indian constitution applies to Jammu and Kashmir, he argued, is one such framework.

In 1954 Presidential Order C.O. 48 had made most of the Constitution apply to J&K, with some modifications and exceptions. One such provision was Article 3 of the Constitution of India, which concerns Formation of new States and alteration of areas, boundaries or names of existing States. C.O. 48 made a modification to Article 3 and stated that “no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.”

In 2019 J&K was reorganised, or split into Union Territories of J&K and Ladakh. At that time, because J&K was under President’s rule under Article 356, instead of the state legislature, Parliament gave consent. Dhavan argued that this process set for J&K cannot be substituted by using a proclamation under Article 356. He insisted that circumventing the conditions under Article 3 using the President’s Rule has the effect of a constitutional amendment, which is a gross subversion of the Constitution.

At this stage Chief Justice D.Y. Chandrachud asked—does this mean that while the President may exercise the power of a Governor and Parliament that of the State Legislature under President’s Rule, they cannot exercise powers under certain provisions like Articles 3 and 370? Dhavan responded that the powers under Article 356 are not absolute. His focus was on process and procedure. The President’s rule certainly does not grant power to amend the Constitution or deprive it of its mandatory processes.

Moving back to his argument on a diverse India needing diverse solutions, Dhavan patiently took the Court through a list of provisions in the Constitution that gave effect to the unique needs of the people in different areas.

For instance, Art. 164 appoints a Minister in the States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha to govern the welfare of scheduled castes and other backward classes, to respect the distinct demographic needs of the States. Articles 239A and 239AA, are special provisions for Pondicherry and the NCT of Delhi. Article 243 and its clauses curtail the Union’s powers in respect of Scheduled Areas in Meghalaya, Manipur, Mizoram, Nagaland, the Gorkhaland in West Bengal. Article 244A allows for the creation of an ‘autonomous state’ within Assam in certain tribal areas.

This ‘autonomy’ Dhavan argued was fundamental to our Constitution. He submitted that these special provisions were a ‘regular feature’ of the Constitution which enabled the needs of the SC/ST and OBC communities and localities to be represented in the democratic fabric of India. All these provisions, Dhavan argued, were facets of ‘multi-symmetric’ federalism. This was crucial to our Constitution and could not be done away with by executive orders.
Senior Advocate Dushyant Dave argued in the second half of the day. His main argument was that the two Presidential Orders of 2019 were abuses of Constitutional mandates under Article 370. The laws made during a President’s rule, Dave argued, were limited to that period—they could not amend permanent provisions of the Constitution indefinitely. Therefore, the President could not abrogate Article 370 when the State was under President’s rule.

Dave then pointed out that the Union justification of the abrogation was ‘national interest’. However, they had not described what this interest was. He argued that an arbitrary exercise of powers would be a serious breach of democracy.

The many days and many arguments in the hearings seemed to weigh on the Bench. They were seen urging Dhavan and Dave to finish arguments within a fixed time, to limit their arguments to points that were not made in Court before. Though they requested petitioners to complete arguments tomorrow, a swarm of lawyers convinced the Bench for more time. Dave will resume arguments tomorrow August 17, 2023, and petitioners’ arguments will complete tentatively on Tuesday next week.

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