Supreme Court Hears Challenge to Abrogation of Article 370 | Day 4

Sr. Adv. Gopal Subramanium argued that Article 370 could only be repealed with the concurrence of the J&K Constituent Assembly.



Hello and welcome to another episode of SCO Daily. Today, we’re talking about DAY 4 of hearings in the challenge to Abrogation of Article 370. On Wednesday, August 9th 2023, Senior Advocate Gopal Subramanium argued that the Constituent Assembly of J&K “was not silent on the fate of Article 370”. They expressed their intent for Article 370 to be permanent through the very document they were constituted to make—the Constitution of Jammu and Kashmir. The provisions of the Constitution of India, he said, were not made to apply to J&K only through a Presidential Order. Instead, “they were embraced by the J&K Constitution.”

Slowly taking the Court through the provisions of the J&K Constitution, Subramanium argued the provisions of the 1954 Presidential Order (which gave effect to Article 370) are embedded into the J&K Constitution. He stated that the J&K Constitution was deeply intertwined with the Constitution of India. The fact that the J&K Constitution did not abrogate or allow the Legislative Assembly to abrogate Art. 370 was the will of the members of the Constituent Assembly–and by extension the people of Kashmir— put in action. Subramanium said that the Union of India had accepted this structure and therefore could never abrogate the provision especially unilaterally. 

Subramanium asserted that Article 370 of the Constitution recognised a bilateral relationship between India and J&K. The two entities—the President of India and the Legislative Assembly of J&K—must work together to make laws for the State. Therefore, any change to Article 370 could not be a unilateral exercise without J&K’s concurrence. It has to be a ‘bilateral’ exercise with dialogue and deliberation. In contrast to this, he said, the  2019 Presidential Order– C.O. 272— was a unilateral decision of theUnion of India without J&K’s concurrence.

In the second half of the day, the Chief Justice noted that while the Indian Constitution talks about the J&K Constituent Assembly, it did not mention the J&K Constitution at all! So, he asked Subramanium—was it was necessary to include parts of the J&K Constitution into the Indian Constitution, to make it an intrinsic part of the Indian framework? Subramanium replied that the J&K Constitution was in itself a product envisaged by the J&K Constituent Assembly, a body duly recognised by the Indian constitution for this sole purpose.

Subramanium gave more reasons for why C.O. 272 was ‘defective’. The Presidential Order amended an interpretation clause of Article 367 so that ‘Constituent Assembly’ would be read as ‘Legislative Assembly of the State’. An incredulous Subramanium argued that Art. 367 was designed to ‘aid the interpretation and construction of the Constitution’. The two assemblies are distinct by nature, and one cannot be forced to mean another by simply interpreting it to be so. 

CJI Chandrachud pointed out that the main question about validity of the Presidential Order hinged on whether a valid ‘state government’ was consulted before passing the Order. Remember, that when C.O. 272 was passed, J&K was under President’s Rule, and the Parliament had assumed the power of the State Government. In the Constitutional principle of federalism it was necessary that both parts of that federal structure—the state government and the president—must be available to enable an exercise of the powers under Article 370. When the President’s order was passed in 2019, both those parts were assumed by the President himself. Subramanium asserted that the ‘state government’ in Article 370 meant a democratically elected government accountable to an Assembly.

Before the day ended, Sr. Adv Zafar Shah appearing for the Jammu and Kashmir Bar Association argued for about 20 minutes. He’s expected to continue his arguments on Thursday, 10th August 2023. 

There’s a more detailed report on, so make sure to check it out! On twitter we’ll be giving contextualised live updates of the hearings. Come follow us there! 

Thank you for watching!