Supreme Court Hears Challenge to the Abrogation of Article 370 | Day 14

Respondents argued that the legitimacy of J&K Constitution came directly from the Indian Constitution


Hello and Welcome to SCO daily! We’ll be breaking down day 14 of Arguments in the Article 370 hearings today!

Senior Advocate Rakesh Dwivedi continued his argument on how the President’s power under Article 370 was a constituent power. In the previous hearing, Justice Khanna had stated that the only “constituent power” was the power to frame the Constitution. Today, Dwivedi explained that constituent power is “the power which enables the amendment of the provisions of the Constitution.” It is the nature of a power granted to a body that can be defined as “constituent”, irrespective of the body that it is vested in. Chief Justice D.Y. Chandrachud added to the argument with examples. The Court exercises “legislative” powers by making rules for its function, Parliament exercises “judicial” power when it initiates contempt proceedings. The Chief summarised Dwivedi’s arguments for him, stating that Article 370 was a constituent power because it is a power to amend the application of the Constitution to J&K.

Dwivedi then added to the respondent’s argument that the need for the “recommendation” of the J&K Constituent Assembly to abrogate Article 370 was not binding on the President. He took the court through various provisions in the Constitution where the language adopted by the framers left no ambiguity on whether the President could act on his or her discretion. Dwivedi argued that if they chose to do so, the framers could have made it abundantly clear that the President did not enjoy “absolute discretion” under Article 370, explicitly binding him to the recommendation of the Constituent Assembly.

Next, Dwivedi addressed the petitioners’ contention that the source of the powers of the J&K Constituent Assembly and the J&K Constitution “flows from the crown of [Maharaja] Hari Singh.” Almost mockingly, Dwivedi recounted that the petitioners had argued that there was a bilateralism with the Indian and J&K Constitutions, with “the two sovereigns talking to each other, whispering to each other and all that.” He countered that Article 370 was the source of power over “the creation and disappearance” of the J&K Constituent Assembly and the J&K Constitution.

Further, Dwivedi said, the provision “substitutes the Maharaja for the Maharaja acting on the advice of the council of ministers,” effectively declaring the monarchy “dead.” This ensured that the people’s voice was taken into account, and the Maharaja could not act on his own. With the power of the monarch stripped away, he could not have created the Constituent Assembly by himself.

Dwivedi then argued that the J&K Constituent Assembly was bound by the limitations imposed on it by the Constitution of India. First, the Assembly had to ensure that the sovereign democratic republic of India was not adversely impacted by the J&K Constitution. Second, it had to ensure that their Constitution enshrined the principles of justice, liberty, equality and fraternity, in line with the Indian counterpart. Third, the Assembly was bound by Article 1 and could not declare that J&K was not a federal unit of India. Fourth, it could not be said that permanent residents of J&K would not be citizens of India. This showed that the J&K Constitution was subordinate to the Indian one.

Senior Advocate V. Giri addressed the bench next. Reiterating his colleagues’ views, he argued that after the accession, J&K did not retain any “residuary sovereignty.” Chronologically, the draft Indian Constitution which contained Article 370 existed even before J&K’s Constituent Assembly came into existence in 1951. Further, Yuvraj Karan Singh, in his proclamation dated 25 November 1949, had declared that the relationship between India and J&K would be governed by the Indian Constitution. This proclamation, Giri argued, made it clear that J&K was part of India and was bound by the contours of the Indian Constitution, vesting the state’s sovereignty completely with the Union.

On the powers of the President, Giri submitted that the President’s power to abrogate Article 370 was absolute. He anchored his argument to the words used in Article 370. He explained that the “recommendation” sought under Article 370(3) was from J&K’s Constituent Assembly established under Article 370(2). Under Article 370(2), the purpose and function of this Constituent Assembly was limited to the creation of the J&K Constitution. After the J&K Constitution was created and the Constituent Assembly dissolved in 1957, the provision had a “natural death.” The requirement of “recommendation” under Article 370(3) also had no significance and it was “co-terminus” with Article 370(2). Therefore the President’s power to abrogate the Article did not “cease to exist” because the Constituent Assembly did not exist.

That was a wrap on day 14! Hearings will continue on Monday, that is 4 September 2023. Make sure to visit for a detailed report of the day’s hearing! Thank you for watching.