Abrogation of Article 370 | Day 12: J&K has seen rapid development since it was made a Union Territory

The President has the power to modify Article 367 to abrogate Article 370

Mehta began the day’s arguments by responding to the petitioner’s argument that the abrogation of Article 370 broke a constitutional promise made to the people of Kashmir. He cited the Courts’ judgements in H. H. Maharajadhiraja Madhav Rao Scindia v Union Of India (1970) and Raghunathrao Ganpatrao v Union Of India (1993) in an attempt to show the Court that the abrogation in fact upheld constitutional values. 

In Madhav Rao, the issue pertained to the rights of erstwhile rulers of princely states. They were bestowed with special rights and privileges such as “privy purse”—a payment made to them as part of their integration into India under Articles 291 and 362. When a resolution at the Rajya Sabha failed to remove these rights due to lack of majority, a Presidential Order was issued to remove “princely states” from the definition clause under Article 366(22) and thereby remove the system of privy purse. The Supreme Court ruled against this Order reasoning that princely states could not be removed from the definition clause of the Constitution as long as Articles 291 and 362 were present. They also held that a Presidential Order could not override a constitutional provision. Subsequently, after this judgement, Parliament passed the 26th Constitutional Amendment which “omitted” Articles 291 and 362 from the Constitution. 

This Amendment, the Solicitor General said, was challenged in Raghunathrao and the top Court upheld the Amendment on the ground that it removed preferential treatment to one class of people and upheld “fraternity” or brotherhood—a basic feature of the Constitution, as enshrined under the preamble of the Constitution. 

Reading out excerpts from the Raghunathrao judgement, Mehta argued the top Court validated the removal of a provision that undid inequality and brought the citizens of the country to the same level for the sake of brotherhood. “Dr. Ambedkar for the word ‘fraternity’ explaining that ‘fraternity means a sense of common brotherhood of all Indians.’ In a country like ours with so many disruptive forces of regionalism, communalism and linguism, it is necessary to emphasise and re-emphasise that the unity and integrity of India can be preserved only by a spirit of brotherhood. India has one common citizenship and every citizen should feel that he is Indian first irrespective of other basis.” the judgement said.

Mehta urged the Bench to read Article 370 in this light. He suggested that the abrogation of Article 370 furthered the principle of brotherhood and fraternity. Therefore, the President had the power to remove the provision which put the people of J&K on a different footing than the rest of the country. 

Chief Justice D.Y. Chandrachud however pointed out that the issue with regard to Article 370 was that the Union used Article 367—an interpretation clause to alter the meaning of “constituent assembly” to mean “legislative assembly” and in turn used this to abrogate Article 370. In a sense, this was “worse” than what happened in Madhav Rao. 

Standing firm on his ground, Mehta responded that the President had the power to use the 367 route (C.O. 272) because, after 1957, the Constituent Assembly of J&K dissolved. If it was accepted that Article 370 could not be abrogated at all, then it would mean that Article 370 was a permanent provision, which it was not. 

He added that Article 370(1)(d) equipped the President to make “other provisions”(other than Article 1 and 370) of the Indian Constitution applicable to J&K through an Order. Article 367, was one such “other provision” and so, it was constitutional to change 367 in order to modify 370. He asserted that the Supreme Court had also upheld the Article 367 route to modify Article 370 in Mohd. Maqbool Damnoo v State Of J&K (1972) when the word “Sadar-i-Riyasaat” was replaced with “governor” in the Constitution. 

The Chief interjected again to point out that in Damnoo, the change was made with the concurrence of the State Government. Mehta responded that the concurrence of the Government was received in this case as well. The only difference was that since the State’s legislative assembly had dissolved, the Governor’s concurrence was taken instead. 

President’s power to abrogate Article 370 stands independent of clause 370(3)

Trying to understand what Mehta’s arguments on the use of the “Legislative Assembly” in the place of the “Constituent Assembly” would mean for J&K, CJI Chandrachud said “According to you, at a time when there was no Legislative Assembly, the explanation was amended…to provide that the Constituent Assembly itself will be treated as a Legislative Assembly… So, the flip side is, when there is no Constituent Assembly, we treat the Legislative Assembly as the Constituent Assembly.” 

Mehta responded that this was only to democratise the process. Without the Constituent Assembly, Article 370(3) was rendered redundant. By not choosing to abrogate Article 370 when it dissolved, the Constituent Assembly left “absolute discretion” to the President. Further, the requirement under Article 370(3) to get the recommendation of the Constituent Assembly, was only just a recommendation—the President was never “bound” by it. If they so desired, the Union could have abrogated the provision without the limitations of the provision. Instead, “considering the strategic nature of the state” the Union chose to “democratise” the process of repealing the provision and chose to introduce it in both houses of Parliament.  

This sparked a debate about the meaning of the term “recommendation”, and the obligations it imposed on the President in the context of J&K. Justice B.R. Gavai brought the Solicitor General’s attention to the language of the proviso to Article 370(3) which states that the “recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification”, suggesting that the recommendation is mandatory for abrogation. Mehta stated that the purpose of adding “recommendation” was to give an option to the Constituent Assembly during its time to make recommendations, and did not apply after the body dissolved. The President’s power, he argued, could not be dependent on the decisions made by a different body. The “recommendation” at this stage, therefore, would be something the President could have ignored. 

“That may not be correct, actually”, CJI Chandrachud said. Justice Khanna added that the “Constitution as a supreme document in a democratic country will always place restrictions, whether it’s the judiciary, executive or legislature.” The Chief stated the use of the word ‘shall’ is a “clear indication that…there has to be a recommendation”. Mehta requested that the Court interpret it to mean that the recommendation may be needed, but it would still not bind the President. 

In the second half of the day, the Attorney General weighed in on this argument and stated that the role ascribed to the Constituent Assembly was small—of unenforceable recommendation. The President had the power and duty to “take stock” of what was happening in her country and decide to retain or remove Article 370. When the Constituent Assembly was not available to recommend this retention or removal, the President may go ahead, without being bound by Article 370.

Clear that the Constituent Assembly was subordinate to the Indian Constitution

Mehta reiterated his arguments from yesterday on how the Constituent Assembly was merely the name of a body that was effectively functioning as a law-making body. He had argued that Yuvraj Karan Singh had already “submitted” J&K to India and therefore could not have created a Constituent Assembly for a state that had surrendered its sovereignty. To have a Constituent Assembly and a Constitution a region must have some degree of sovereignty, not just autonomy, he said. 

The J&K Constitution, Mehta stated, had none of the attributes of a Constitution, and was simply a “piece of law” which was “known” as a Constitution till the 5th and 6th of August 2019. Evidence of this was found in the Preamble of the J&K Constitution which does not say that the Constitution is being created for the governance of the region, but instead reads that this constitution is to “further define the existing relationship of the State with the Union of India as an integral part thereof.” 

CJI D.Y. Chandrachud added a “more fundamental reason why your [Mehta’s] argument may be right.” Section 5 of the J&K Constitution which sets the extent of the powers of the executive and legislature “to all matters except those with respect to which Parliament has power…under the provisions of the Constitution of India.” This shows that instead of prescribing itself a set of powers, the J&K Constitution it only takes up what the Indian Constitution does not prescribe to Parliament. CJI Chandrachud stated that this made it “obvious” that the J&K Constitution was “meant to be subservient to India.”

Article 370 is not a permanent feature of the Constitution

Mehta was keen to prove that Article 370 was never intended to be a “permanent feature” of the Constitution as claimed by the petitioners. He asserted that it was always meant for be a “temporary” provision for several reasons. 

Firstly, the provision was inserted under Part XXI of the Constitution. This Part, Mehta argued, consisted of “Temporary, Transitional and Special Provisions” provisions of the Constitution and the framers were very mindful of where each provision was listed. They always intended for Article 370 to be a “temporary” provision, so they included the Article under Part XXI and also indicated that intention in the title of the provision. 

Secondly, Mehta contended that the powers accorded to the President as well as the State Government under Article 370 were expansive and extremely wide. They “can alter any part of the Constitution and apply it to one Part. They can delete any constitutional provision, [and] can create a provision.” Therefore, given this expanse, the framers would surely, never have contemplated this provision to “remain forever.”

Next, the impact of Article 370 was that it “deprived” the people of J&K and Ladakh of being treated at par with the citizens in the rest of the country. This is a “suggestive indication” Mehta claimed that the framers never wanted the provision to be permanent. 

Further, Mehta asserted that this was the only provision in the “entire constitution” that makes the Constitution of India and other welfare legislations of the Union applicable to a state on the basis of the concurrence of the state government. No other provision leaves this discretion to a state. Therefore, this was a “drastic provision” which could never be permanent. 

Moreover, Article 370 was the only provision which had a “self-destructive” provision under 370(3). According to Mehta, this meant that it was always meant to come to an end at some point. 

Lastly, from a “people’s perspective,” the provision treated the people of J&K differently from others. Therefore, treating it as “permanent”, Mehta concluded it was impermissible and unconstitutional as it “discriminated against a class of people”.

Reorganisation has ensured return to normalcy and rapid development in J&K 

In support of the reorganisation of J&K state to Union Territories, Mehta argued that in every country, it is important to “re-judge the boundaries” of their state. J&K was a “one of its kind state” because of its “strategic location, border state, history of terrorism,  history of infiltrations, history of influence from outside forces.” He argued that reorganisation of states is not just done with a policy consideration but with a “blueprint” on what the Union would do post reorganisation. Now, after J&K was made into a Union Territory, the people of J&K have a feeling that the country has “not left us”, he said. 

This plan included issues such as gainful employment of the youth in the mainstream, schemes for the protection of border residents from shelling, and “starting” of a democratic local self government. “The impression given to you,” Mehta said “is that it [reorganisation] was a downgradation”, and that there is no representation, no consolidated fund of India, no seat in Parliament etc. This claim, Mehta insisted was “factually wrong”, and that Policy issues such as this was not a “knee jerk reaction”, but well thought out plans of the Union. 

 

(This report will be updated)