Supreme Court Hears Challenge to Abrogation of Article 370 | Day 8, 9

On Days 8 and 9, 12 counsels appearing for the petitioners in the challenge to Article 370 argued before the Supreme Court.


Hello and Welcome to SCO Daily. In this episode, we bring you updates from Days 8 and 9 of the hearings in the challenge to the Abrogation of Article 370. On these two days, which were the final days of petitioners’ arguments, the Bench heard arguments from 12 counsels.

On Day 8, the Bench heard arguments from Senior Advocates Dinesh Dwivedi, C.U. Singh, Sanjay Parikh and P.C. Sen.

Dwivedi argued that the accession of J&K to India did not mean that the state was stripped of all its powers. It was not a merger, but an accession, and with that came the retention of some autonomy and independence. This autonomy, he said, is enshrined in the J&K Constitution.

Dwivedi went on to make a novel proposition, that once this expression of autonomy was made, the whole of Article 370 ceased to operate. The Bench resisted this argument. Chief Justice D.Y. Chandrachud pointed out that if this view was accepted, the Court would effectively be stating that the Constitution of India stood “frozen” after 1957 when the J&K Constituent Assembly dissolved. This would mean that the Indian Constitution would not apply to J&K.

Agreeing with the Chief, Justice Khanna also pointed out that Dwivedi’s argument “cut through” the points made by the other petitioners who had argued that after the Constituent Assembly dissolved in 1957, Article 370(1) survived, through which India could make laws for J&K with the consultation and concurrence of its people. This provision was what gave legitimacy to the various Presidential Orders that have since been passed. Justice Kaul asked “Since 1957, so many Presidential Orders under Article 370 have been passed. Had no one thought about this?”

Dwivedi answered that every law passed in relation to J&K since 1957—Presidential Orders, and the application of several provisions of the Indian Constitution to J&K—got its legitimacy from the J&K Constitution itself. With this argument, Dwivedi seemed to argue that the basis for the relationship between India and Jammu & Kashmir comes from the state’s own constitution.

Sr. Adv. Chander Uday Singh appeared next. His arguments were focused on the reorganisation of J&K into Union Territories after the abrogation of Article 370 in 2019. He submitted that the President could not alter the status of J&K, even if the state is under President’s Rule. The President’s power under Article 365 was limited.

Senior Advocate Sanjay Parikh referred to J&K’s 1944 ‘Naya Kashmir’ Manifesto. According to this Manifesto, the people of Kashmir came together to express their desire to remove the monarchy and have a democratic constitution. This desire was communicated to the Maharaja and was ultimately translated into J&K’s Constitution. This written Constitution, he said, was supreme and could not be ignored as it was a sign of sovereignty.

The last counsel to argue on day 8 was Senior Advocate Prashanto Chandra Sen. He was the first counsel in the 8 days to highlight that the population of J&K consisted of a Muslim majority. He argued that the people of Kashmir had the choice of “either being a majority in Pakistan or choosing to take a minority status in India”, and “it chose the latter”, demonstrating a “conscious choice to remain a minority”. To respect this choice, there was a constitutional promise to protect this minority in the form of Article 370, and thus the provision must be interpreted strictly.

On Day 9 of the hearings 8 counsels appeared before the bench. Senior Advocate Nitya Ramakrishnan argued that Article 370 was a sui generis power vested with J&K. Senior Advocate Menaka Guruswamy argued that the provision reflected the constitutional intention to offer a “unique brand of federalism” to J&K. Advocate Warisha Farasat argued that J&K is unique because while most Indian states represent a “holding together” kind of federation, JK represents a “coming together” federation. This system for J&K is enshrined in the Constitution through Article 370, and therefore, must be interpreted strictly.

Advocate Irfan Hafeez Lone, Mr. Zahoor Ahmad Bhat Senior Advocate Muzaffar Hussain Baig attempted to highlight the ground impact of the abrogation in Kashmir. Lone contended that the “sentiments and aspiration of the people is intrinsic to the will of the people and is enshrined in the J&K Constitution.” Bhat, a petitioner, appeared for himself. He argued that the dilution of the special status of J&K to Union Territories is in violation of “constitutional morality, national interest and Mr Baig read excerpts from A.G. Noorani’s book Article 370: A Constitutional History of Jammu and Kashmir to argue that the abrogation is unconstitutional.

Senior Advocate Gopal Sankaranarayanan argued after lunch till the end of the day, focusing on filling the gaps in the arguments made so far. He stated that Article 370 was always designed to be permanent and argued that the words used in the provision are crucial in interpreting it. He reasoned that the words “consultation”, “concurrence” and “recommendation” used in Article 370 were crucial in interpreting the provision. The word “consultation” meant the “meeting of two minds”, that is J&K’s people and the Union. The word “recommendation”, he said, was meant to establish a system of “balance”. “A recommends to B,” he said, was the proper way to maintain this balance. But in this case, through the Presidential Orders, A was telling B what to recommend.

With this, the 18 counsels on petitioner’s side concluded arguments against the abrogation after 9 days and over 40 hours of hearings.
Stay tuned to SCObserver for more updates from the Supreme Court. Thank you for watching!