Abrogation of Article 370 | Day 16: SC reserves judgement after hearing arguments from 40 counselChallenge to 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 and was followed by Senior Advocates Gopal Subramanium, Zafar Shah, Rajeev Dhavan and Dinesh Dwivedi.
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.
Sibal: The Union’s move was political, and the result was unconstitutional
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. Today, Sibal argued that Art 370(3) is not silent on this matter. He argued 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 when 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. Sibal then said that “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.”
He repeated his argument that the structure of the J&K Constitution requires that the Governor take the aid and advice of the Council of Ministers before dissolving the legislative assembly. The dissolution of the J&K Legislative Assembly in 2018, therefore, was illegal and void.
Sibal then moved to the argument made by Attorney General R. Venkataramani that the doctrine of impossibility applies in this case, to the extent that it was “impossible” to get the recommendation of J&K’s Constituent Assembly to abrogate Article 370. Sibal stated that this argument was never raised by the petitioners, and yet they were having to deal with it. He argued that the doctrine of impossibility was only attracted if there is a constitutional obligation to be performed, and another obligation renders it impossible to be done. Sibal suggested that the matter was straightforward—if the process under Article 370 is upheld, it is possible, and if it is not upheld, it becomes unconstitutional.
Subramanium: The President never had untrammelled power over J&K
Senior Advocate Gopal Subramanium dealt first 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(2) refers to a Constituent Assembly of J&K formed “for the purpose of framing the constitution.” The second piece of evidence 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.
Next, Subramanium argued that the word “recommendation” in Article 370(3) was “chosen consciously” as a “condition precedent.” He took the Court through Presidential Order C.O. 44, Resolutions of the J&K Constituent Assembly which passed C.O. 48, and the Presidential Order. C.O. 48 itself, which all referred to having had the recommendation of the J&K Constituent Assembly. Further, he argued that Article 370 itself negated unilateralism, as the process stipulated under it involved the J&K state, the legislature and the Constituent Assembly.
Subramanium then said that J&K’s executive and legislative power extended to “all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India.” The CJI explained that this meant that the domain of the J&K Constitution “was that which was defined by the Constitution of India” 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.
Shah: While complete integration is a “noble” thought, the autonomy of J&K cannot be taken away
Senior Advocate Zafar Shah sought to argue only on the “fundamentals” of the case. Understanding why the Constituent Assembly of J&K decided to keep Article 370 itself, he said, speaks to the importance of the provision.
Though integration with India was certain, there was no doubt that there was an “ocean of autonomy” that was retained by the state. After the Instrument of Accession was signed, Shah said, sovereignty was not lost. (The Chief Justice said that he found the phrase, “ocean of autonomy” so interesting that he had added it to his notes in inverted commas.)
Being a resident of J&K himself, Shah 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 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.”
While the Union’s “noble thoughts” about national growth were important, Shah said that “you cannot form a nation by force, by compulsion, you have to win the hearts of the people.”
Dhavan: Presidential Order was invalid even by Union’s standards, since Council of Ministers was not consulted
First, Senior Advocate Dhavan responded to the Union’s argument that Article 370 was a temporary provision. Dhavan stated that after the J&K Constitution came into force, and J&K’s Constituent Assembly dissolved, Article 370, especially Articles 370(2) and 370(3) assumed the nature of “special provisions” under the Constitution and lost their “temporariness.” They indicated the principle of “cooperative federalism” through which India and J&K interacted with each other.
He then argued that Article 370(3), being a permanent and mandatory provision under the Constitution, could not be defied by the Union for any reason, even necessity.
Yesterday, 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 raised an issue of the violation of the constitutional rights of the people of J&K. That’s one way in which basic structure entered the conversation here.
Next, focusing on C.O. 272 and 273, Dhavan asserted that the Union failed to fulfil the processes set out in these two C.Os. According to C.O. 272, Dhavan read, “references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers.” As was previously established, Dhavan argued, the Union did not act on the “aid and advice” of the Council of Ministers. So even by the Union’s own standards, C.O. 272 was invalid.
C.O. 273 says “In exercise of the powers conferred by clause (3) of Article 370 read with clause (1) of article 370 of the Constitution of India, the President, on the recommendation of Parliament, is pleased to declare that…” Under clause 3 of Article 370, Dhavan pointed out, the “recommendation of the Constituent Assembly” was necessary before the President issues such a notification. Therefore the Parliament’s recommendation was invalid.
Lastly, Dhavan submitted that Section 73 of the J&K Reorganisation Act, 2019 gave the President untethered powers to “suspend the operation of all or any of the provisions” of the legislation for an indefinite period of time. That indicated that the “roadmap” to restore J&K’s statehood was an “illusion.”
Dwivedi: The President’s power under Article 370 is not plenary but is subject to judicial review
Dwivedi was the last counsel to address the Bench before the day’s arguments concluded. Countering the Union’s claim that the President’s power under Article 370 was a plenary power, he claimed that no power was “imperium to the Constitution” and “unreviewable by the Supreme Court.”
Dwivedi further 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. On Day 8 of the hearings, as petitioners completed their arguments, the Bench had commented that they were not “fatigued” but only “mentally saturated” by the arguments made so far. At the end of Day 16 of hearings, their fatigue was evident as they sternly ordered all the other counsels to submit their rejoinders on paper.
The Bench then reserved judgement in the case.