Abrogation of Article 370 | Day 14: Legitimacy of J&K Constitution came directly from the Indian Constitution, respondents argueChallenge to the Abrogation of Article 370
Today, the Bench heard arguments from Senior Advocates Rakesh Dwivedi and V. Giri in support of the abrogation of Article 370.
Dwivedi argued that Article 370 accorded the President of India “constituent powers” to abrogate the provision. Giri submitted that the “recommendation” of J&K’s Constituent Assembly lost its significance in 1957 and therefore did not limit the President from abrogating Article 370.
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.
Dwivedi: President’s power under Article 370 is a Constituent Power
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 relied on Kesavananda Bharati v. State of Kerala (1973) which defined constituent power as “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 (including Articles 109 read with 198, 103 read with 192, and 113 read with 207) 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.
Dwivedi: The source of legitimacy of the J&K Constitution is the Indian Constitution, not the Maharaja of the State
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: J&K Constitution does not enjoy the same extent of powers as the Indian Constitution
Dwivedi 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.
Dwivedi’s contention was that it was a situation of “devolution of powers”, where the Constitution of India had “devolved powers on the Yuvraj acting on the advice of the Council of Ministers, to form a constitution.”
Giri: J&K’s Constituent Assembly ceases to have any significance after J&K’s Constitution is framed.
Senior Advocate V. Giri addressed the Bench for about 15 minutes before the close. 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.
Giri will resume arguments on Monday, 4 September 2023.