Supreme Court Hears Challenge to the Abrogation of Article 370 | Day 15

“If 370 is beyond the reach of amendment, is it above basic structure?” Court asks Petitioners



Hello and welcome to SCO daily. Today we’ll be breaking down day 15 of arguments in the abrogation to Article 370. On Day 15 respondents concluded their arguments after five days of countering petitioners’ submissions.

The day’s hearing began with charged statements by Solicitor General Tushar Mehta who informed the Bench that the lead petitioner—Mr. Mohammad Akbar Lone—had publicly chanted “Pakistan Zindabad” in the J&K Assembly in 2018. Solicitor General Tushar Mehta argued that “a lead petitioner saying Pakistan zindabad on the floor of the House has its own seriousness.” He stated that the court must look into “who is contesting the claim of continuing 370”. He demanded that Lone must submit an affidavit declaring his allegiance to the Constitution of India, and that he strongly opposes terrorism and cessationism by Pakistan in J&K.

Hearings resumed after this scuffle in court. Senior Advocate V. Giri argued that Article 370, established a kind of relationship with India where the President needed the consent of the J&K government to make laws for the State. This meant that J&K was on a “different plane” than the other states. The abrogation, Giri suggested, removed this difference and therefore upheld Dr. Ambedkar’s vision for India. Article 368 (which deals with amendment) states that certain amendments “shall also require to be ratified by the Legislatures of not less than one-half of the States…” These words, Nataraj said, incorporated the doctrine of “collective consent” and upheld federalism. In contrast, Nataraj argued that Article 370(3) only required the recommendation of J&K’s Constituent Assembly. Article 370 did not contain the features of federalism, he said.

Senior Advocate Mahesh Jethmalani argued next, appearing for some members of the Gujjar Bakerwal community. He claimed that they constituted over 73 percent of the Scheduled Tribe population in J&K and were completely in support of the abrogation as it gave them protection and reservation for the first time.

Addressing the petitioners’ contention that the Union wrongfully used C.O. 272 to change Article 367 (by which it replaced “Constituent Assembly” with “Legislative Assembly”) to abrogate Article 370, Jethmalani argued that it was permissible because historically, these two provisions were used “synonymously.” The Bench, however, pointed out that J&K did not have a Legislative Assembly in the past which is why the Constituent Assembly often assumed that role. However, this changed after the J&K Constitution was adopted and the state got a Legislative Assembly. Jethmalani responded that if there was a constitutional authority that could take the place of J&K’s Constituent Assembly, it was the Legislative Assembly.

Guru Krishnakumar appeared on behalf of a set of people who represent displaced persons residing in Pakistan-Occupied Kashmir (POK). He argued that Section 6 of J&K’s Constitution and Article 35A of the Indian Constitution created “anomalies” that gave special rights only to the “permanent residents” of J&K, and not the displaced persons residing in POK. The Presidential Orders which abrogated Article 370, he said, rectified these “anomalies.” He submitted that approximately 23,000 to 24,000 people had received their domicile certificates since the abrogation. Kapil Sibal interjected at his point, pointing out that Article 35A was not being challenged in this batch of petitions. Kumar however, said that he was referring to this article as an “anomaly” and contended that restoring Article 370 would “resurrect these [anomalies] and Article 35A.”

In what can only be described as a chaotic turn of events, 15 counsels appeared before the lunch break to argue for various intervenors in the case. Most notably, Advocate Kanu Agarwal argued that J&K’s Constituent Assembly did not have any “original constituent powers” as the erstwhile ruler of J&K had recognised the supremacy of the Indian Constitution in his proclamation. He had acceded all sovereignty to India when he signed the Instrument of Accession and therefore, J&K’s Constituent Assembly and the Constitution it created were based on “derivative powers” which were subordinate to the Indian Constitution.

Advocate Archana Pathak Dave highlighted that the women of J&K had regained the rights to acquire property and other benefits even if they married someone outside the state after the abrogation of Article 370.

Other intervenors reiterated that Article 370 was a temporary provision and its abrogation benefited the people of J&K vastly. With this the respondents’ arguments completed in the case. Now it was time for rejoinders from the petitioners. This is the petitioner’s opportunity to reply and counter the Respondents’ arguments.

Senior Advocate Kapil Sibal opened the rejoinder, by tackling the Union’s argument that the status awarded to J&K was not special in any way. Sibal contended that the historical context in which the Instrument of Accession was signed was distinct to the region.

Sibal then addressed the respondents’ argument that the President had “absolute discretion” to “pull the plug” on Article 370 after the state’s Constituent Assembly was dissolved in 1957. The proviso to Article 370(3), he said, has two key requirements—that the recommendation of the Constituent Assembly is necessary and that it comes before the President’s decision to abrogate. He argued that this process cannot be reversed.

CJI Chandrachud pointed out that there were “significant silences” in the provision. What would happen when the “slow integration” envisaged for the state was complete? The “silences”, he indicated, lead to the conclusion that the framers of both the Indian and J&K constitutions’ framers left it to the “wise acts of statesmanship.” Sibal responded that the Court could either “interpret 370 with text and context or we find something which is not there.” Reading of the text and context, he said, showed that the recommendation of the Constituent Assembly “shall be necessary” as per Article 370(3).

Sibal then argued that the standard process, as recognised by Section 53 of the J&K Constitution, was that the Governor required the aid and advice of the Council of Ministers to dissolve the Assembly. Only Sections 36, 38 and 92 were exceptions to this rule. Sibal said that there are Constitution Bench judgments that show that the Governor could not, under the circumstances, dissolve the Assembly.

With this the Court completed its second last day of the Article 370 hearings. Make sure to watch all the episodes of SCO daily so far where we break down the 16 days of complicated arguments based on constitutional and political histories of the region for you.