Supreme Court Hears Challenge to the Abrogation of Article 370 | Day 16

The SC reserved judgement after hearing arguments from 40 counsel


Hello and welcome to SCO Daily!
Today we bring you updates from the FINAL day—day 16 in the hearings challenging the abrogation of Article 370.

The day’s hearing began with raised voices and tempers running high, as Solicitor General Tushar Mehta opposed the affidavit filed by lead petitioner Mohammad Akbar Lone, declaring that his allegiance lay with the Constitution of India. Mehta insisted that Lone’s affidavit declare that he withdraws the statements made publicly, and that he does not support terrorist or any separatist activity.

Senior Advocate Gopal Sankarnarayanan, in turn, pointed to the Union’s affidavit which describes Lone’s acts as “pushing a separatist agenda.” Sankarnarayanan raised “strong objections to the Government of India taking the stance” that filing a case under Article 370 was pushing such an agenda. The CJI stated “anyone who accesses justice under Article 32 cannot be turned out on the ground that they are following an agenda.” He explained that, as judges, the Bench understands the “anguish” of the people who approach the court, and that they know how to handle it.

The Bench firmly instructed counsel to come back to the merits of the case. Senior Advocate Kapil Sibal resumed his rejoinder arguments.

In the previous hearing, CJI D.Y. Chandrachud had pointed out “significant silences” in Article 370 on the status of J&K and India once the “slow integration” was complete. Responding to that, Sibal argued that Art 370(3) is not silent on this matter. He stated that after the J&K Constitution was drafted, the Constituent Assembly “completed its constitutional task” and set down a procedure of bilateralism in Article 370(1). This is further evidenced in C.O. 48 of 1954 in which a proviso was added to Article 368(2), which stated that no constitutional amendments concerning J&K could be brought about unless the process under Article 370(1) was followed. Therefore, Sibal argued, “there were no silences left to fill except that of the people of J&K who were never consulted when issuing C.O. 272 and 273.”

Senior Advocate Gopal Subramanium argued next, and dealt with the Chief Justice’s question of whether there is evidence in the Indian Constitution that the J&K Constitution was applicable to India. Subramanium said that the first evidence is in the text of Article 370 itself. 370 clause (2) refers to a Constituent Assembly of J&K formed “for the purpose of framing the constitution.” The second piece of evidence, he said, is that Part VI of the Constitution, which concerns the functioning of state governments, was rendered inapplicable to J&K. That, he suggested, “alludes to or cognitively takes note of” institutions such as a legislature, executive, high courts, etc as set up by the J&K Constitution.

Subramanium then said that J&K’s executive and legislative power extended to “all matters except those with respect to which Parliament has the power to make laws for the State under the provisions of the Constitution of India.” Chief Justice Chandrachud explained that this meant that the domain of the J&K Constitution “was that which the Constitution of India defined” and therefore could not be considered to be superior to India. It was also not at par, because the applicability of the Indian Constitution and the demarcation of the power of the Parliament were both made by the Indian Constitution itself, bringing the J&K one squarely under its wing. Subramanium said that while the J&K Constitution was not superior, it could not “easily” be considered inferior because all “the establishment of the institutions and their genesis” derive legitimacy from the J&K Constitution, and not the Indian one. Subramanium contended that the Indian Constituent Assembly gave a sense of “space” and “sense of choice” for the people of J&K to decide their own fate.

Senior Advocate Zafar Shah who was the only lawyer from J&K to argue in the rejoinder said that to call the J&K Constitution inferior was not palatable to its people. In fact, he said, the J&K Constitution was on a “better footing” than its Indian counterpart, since it was drafted by a democratically elected Constituent Assembly. (India’s Constituent Assembly members had been elected by provincial assembly members through proportional representation.)

After the Presidential Order of August 2019, the “ocean of autonomy” that J&K retained was reduced to a “pond”, Shah said, which led to the people of J&K losing their identity. “Why can’t the Union of India accept that there can be two Constitutions?” he asked while saying that “self-governance is better than good governance.”

Senior Advocate Rajeev Dhavan appeared next. On day 15, the Chief had asked if Article 370 was “above the basic structure” because the petitioners had claimed that it could not be amended under Article 368. Today, Dhavan clarified that they had not challenged the abrogation on the grounds that there were limitations under Article 368. Rather, the abrogation had violated the constitutional rights of the people of J&K. That’s one way in which basic structure entered the conversation here.

Lastly, the Bench heard arguments from Senior Advocate Dinesh Dwivedi who argued that the Union had wrongfully relied on Mohd. Maqbool Damnoo v State Of Jammu And Kashmir (1972) to justify the use of Article 367. The facts of that case were different and did not make substantive changes to the Constitution. The only material available to the President to abrogate Article 370, he suggested, was “consultation” and “concurrence” with the state of J&K.

After Dwivedi’s arguments, the Court erupted with overlapping pleas and requests by a sea of advocates who wanted a few minutes to add to the rejoinder. The Bench sternly ordered all the other counsels to submit their rejoinders on paper. With this 16 days of hearings in the challenge to Abrogation of Article 370 concluded. Make sure to watch all the episodes of SCO daily where we brokedown the complex arguments made by the 40 lawyers in this case.

We also invite you to write to us either in comments or at, with your thoughts on the case, and any feedback on our coverage. Thank you for watching!