Abrogation of Article 370 | Day 13: No limit on President’s power to pull plug on special status of J&K, respondents argueChallenge to the Abrogation of Article 370
Solicitor General Tushar Mehta, Attorney General R. Venkataramani, Senior Advocates Harish Salve and Rakesh Dwivedi argued today.
In the previous hearing, Venkataramani and Mehta had argued that the framers of the Constitution never intended for Article 370 to be a permanent provision.
Article 370 of the Constitution of India provided the State of Jammu and Kashmir with a special constitutional status. The provision substantially limited Parliament’s power to legislate for the State compared to other states.
On August 5, 2019, the Union government diluted Article 370, revoking Jammu and Kashmir’s special status. First, President Ram Nath Kovind issued presidential order CO 272. This Order allowed the Union to amend Article 370 without the recommendation of the Constituent Assembly.
Since J&K was under President’s Rule at the time, the powers of the Jammu and Kashmir Legislative Assembly were vested in the Union Parliament. So, a few hours after CO 272 was issued, the Rajya Sabha recommended the abrogation of Article 370 through a Statutory Resolution under Article 370(3).
On August 6, 2019, President Kovind issued a Proclamation, CO 273, putting the Rajya Sabha’s recommendation into effect. All clauses of Article 370 ceased to operate, except Clause 1 which was amended to state that the Constitution of India applies wholly to the State, removing the special status awarded to Jammu and Kashmir.
On August 9, Parliament passed the Jammu and Kashmir Reorganisation Act, 2019. This Act bifurcated the State of Jammu and Kashmir into two Union Territories—J&K and Ladakh.
Petitions were filed challenging the constitutionality of the dilution of Article 370 and the bifurcation of the State into two Union Territories.
On August 28, 2019, a 3-Judge Bench led by former CJI Rajan Gogoi referred the case to a 5-Judge Constitution Bench.
On October 1, 2019, 5-Judge Constitution Bench of the Court comprising Justice N.V. Ramana, S.K. Kaul, R. Subhash Reddy, B.R. Gavai and Surya Kant decided to hear the case from November 14th, 2013. The petitioners sought the case to be placed before a larger Bench. On March 2nd, 2020, the Bench refused to refer it to a larger Bench.
On July 3, 2023, the Supreme Court listed the matter to a Constitution Bench led by Chief Justice D.Y. Chandrachud. The Bench assembled on July 11, 2023 and decided to hear the challenge from August 2, 2023.
Mehta: J&K is well on the path to achieving “complete statehood”
Solicitor General Tushar Mehta began the day by responding to the questions posed to him by the Bench. On Day 12 of arguments, the Bench had asked the Solicitor General to submit information on a “blueprint” or “roadmap” chalked out for the reorganised J&K, and which would indicate when elections would be conducted in the state. The Chief Justice had also asked Mehta when the Union planned to reinstate J&K’s statehood. Today, Mehta came to court equipped with different data points but didn’t commit to a date by which J&K would be made a “complete state”.
First, he submitted that the Union is ready to announce elections in J&K any time now. They were simply waiting for the Election Commission to complete updating the voters list in the state, which is “substantially over”.
He then reiterated that for the first time, a three-tier panchayat raj system would be introduced in J&K. So, Panchayat elections will be held first, seeing as District elections had already been conducted. In Ladakh, the Leh Hill Development elections had already taken place and the Kargil Hill Development Council election was scheduled at the end of September 2023. Municipality elections will follow, and then legislative assembly elections will be conducted after that.
The scheduling is based on data that suggests improvement in the law and order and development situation in J&K , Mehta said. Since August 2019, “terrorist-initiated instances” have reduced by 45.2 percent. Infiltration, which he said was a major issue in the region, had reduced by 90.2 percent. “Law & Order events” had reduced by 97.2 percent. Casualties among security personnel had reduced by 65.9 percent. Stone pelting incidents stood at zero now, he said, whereas 1767 instances had been recorded in 2018.
Mehta emphasised that this was not only because of increased security personnel but because of gainful employment of the youth who were “misled by cessationist forces and forces outside the country.” Organised bandhs by “cessationist forces”, which were 52 in 2018, had also dropped to zero.
Further, to ensure that J&K “becomes a complete state”, the central sector scheme investment stood at ₹28,400 crore. Investment proposals other than central schemes were planned to be ₹78,000 crore. Actual investment, to date, was ₹2153 crore. Out of 53 projects under the Prime Minister’s development schemes, worth ₹58,477 crore, 32 had been completed.
Justice Kaul stated that this information was “not really relevant” to the case. Mehta stated that he was just informing the Bench about the factors that informed the scheduling of elections in the region. A deeply agitated Senior Advocate Kapil Sibal, who had earlier argued for the petitioners, raised concerns against the introduction of these new facts, alleging that the Union was trying to “show that this enormous change has taken place.” He was concerned that with the case being “televised” and circulated in the “public space”, people would be misled into believing that a “great thing has been done by the government.”
The CJI reassured Sibal that the facts would not affect the constitutional questions in the case.
Venkataramani: President’s powers are not limited by an “impossible” situation
In the morning, the Attorney General commenced arguments in support of the abrogation by delving into the proper interpretation of Article 370. He asserted that the Bench had to approach the provision bearing the principle of impossibility in mind.
In In Re: Presidential Poll v Unknown (1974), the Attorney General said, the Supreme Court elaborated on two legal maxims—Impotentia excusat legem (impossibility in law is excluded) and lex non cogit ad impossibilia (the law does not compel a man to do anything which is impossible). Applying these principles to the case of Article 370, he argued that it was “impossible” to get the recommendation of J&K’s Constituent Assembly as argued by the petitioners because the Constituent Assembly did not exist after 1957. So, the President is empowered to “take stock” of the situation in J&K from time to time and decide when the abrogation of Article 370 is necessary for the state. To hold otherwise, the Attorney General suggested, would be impermissible.
Honing in on the President’s powers under Article 370, Venkataramani concluded the President was not limited or “paralysed” by the situation of impossibility. Her powers under Article 370 were “plenary.”
Venkataramani also stated that the only right way to interpret Article 370 was through its purpose, which was to ensure that J&K integrated into India. Therefore, the abrogation was in tune with the intention of the provision. He concluded his arguments by reiterating that after the accession was complete, J&K’s sovereignty was vested with India.
Salve: Art. 370(3) was a failsafe inserted for the unfettered use of the President
Petitioners had argued that the recommendation of the Constituent Assembly was mandatory before the President abrogated Article 370, under clause (3) of the provision. Salve countered this, stating that a purely textual reading would suggest that if there is a Constituent Assembly, the President must take its recommendation. However, he argued, provisions of the Constitution cannot be understood based on the text alone. The history and context in which the provision was introduced, Salve said, indicated that the President was vested with the complete power to abrogate the provision.
Constitution framers, Salve explained, were apprehensive of the “troubled history” of J&K. Considering the sensitivities of the border state, they were compelled to agree to a system where Article 370(3) would act as a “safety valve” mechanism. This fail-safe would ensure that “if the political compromise in 370(1)” failed, and there was a “need to pull the plug” on the agreement between J&K and India, Article 370(3) would be that plug. Salve said that when looking at the history of the region, one may find it difficult to “find a logic” to this political compromise. Therefore, the “safest thing for the Court,” he contended, was to give the widest meaning to the provision.
Salve: Basic structure not a right, only a limitation against which constitutional amendments tested
In a short submission in the interests of time, Salve argued that basic structure is not an independent standalone right, but a limitation against which constitutional amendments are tested. For instance, Article 21 is a part of the basic structure. So a law made to protect civil liberties, if it aligns with Article 21, aligns with the basic structure. He argued that the petitioners’ view that the exercise of Article 370 must be tested on basic structure was incorrect, as Article 370 was part of the original Constitution.
On the use of the President’s Rule to abrogate Article 370, he took the stance that this power was used when there were no alternatives. “If unfortunate circumstances” require that for a certain period of time the system of government is changed under Article 356, “then one has to accept the consequences,” he said baldly.
Dwivedi: The decision of abrogation cannot be fueled by emotions
“Let me begin with a deep breath,” Senior Advocate Rakesh Dwivedi said as he addressed the Bench today. “[After] 14 days of waiting and with some hiccups, [I’m] finally on the pitch.” He began his arguments by stating that there was a presumption of validity with the Constitutional Orders and the onus was on the petitioners to prove that it was invalid. Second, he claimed that when it comes to Article 370, there were several views and perspectives available to the Bench, but the only acceptable view, he said, was one that “sustains the exercise of powers” of the President rather than limit them.
The President’s power under Article 370, Dwivedi contended, was neither an executive one like Sibal suggested, nor a legislative one as Salve argued. Rather, it was a “constituent one” that was built into the original Constitution of India. Justice Khanna pointed out that the only “constituent power” was the power to frame the Constitution—everything else was either a legislative power or an executive one. Dwivedi maintained that the President’s powers under Article 370 were much wider than ordinary executive powers.
He went on to say that Article 370 was always meant to come to an end at the “correct time” and it was the President who had the power to decide when this time was. This decision, he said, could not be based on sentiments and fueled by emotions. “Nobody hangs on a body which is just a shell,” he said, suggesting that Article 370 could not live on in perpetuity.
Right before the close, he dwelled on the words used in Article 370. He said that Article 370(2) uses “concurrence” as the J&K’s Constituent Assembly is superior to the State Government. Article 370(3) uses “recommendation” because the President is superior to J&K’s Constituent Assembly. Therefore, Dwivedi argued, the Constituent Assembly’s recommendation could not have been binding on the President.
Dwivedi will resume arguments tomorrow, that is 1 September 2023.