Article 370 Case | "If They're Allowed To Do This, Heavens Know What Else They'll Do" : Gopal Sankaranarayanan Warns Against Potential Mischief [Day 9]

"If they're allowed to do this, heaven knows what else they would do!," exclaimed Senior Advocate Gopal Sankaranarayanan today on the ninth day of Constitution Bench hearing in the pleas challenging dissolution of Jammu and Kashmir's special status under Article 370.

Sankaranarayanan, while concluding the arguments for petitioners, used certain "extreme examples" to argue that upholding the Centre's actions can set a precedent for great mischief, whereby Constitutional processes can be circumvented by simply changing the definition clauses under Article 367 instead of following the amendment process under Article 368.

The Supreme Court Constitution Bench hearing the matter comprised Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.

The court also witnessed arguments raised by Senior Advocate Nitya Ramakrishnan, Senior Advocate Menaka Guruswamy, Advocate Warisha Farasat along with intervenors. The important queries raised by the bench today can be found here. Other articles on today's proceedings can be found here and here. 

Matter Has Broader Implications, Kashmir Just An Avenue: Senior Advocate Gopal Sankaranarayanan

Senior Advocate Sankaranarayanan began by contextualizing the case, emphasizing that it is not merely about Kashmir but about the broader implications for the Constitution and the potential abuse of executive power. "Whenever anything that approaches or encroaches upon our rights starts, you must nip it in the bud. This is an encroachment on something we cherish the most - our constitution. Kashmir is just an avenue", he said.

Sankaranarayanan contrasted the August 2019 developments with events in Pakistan-occupied Kashmir and Gilgit Baltistan in 2018, where the Pakistani government eroded self-governance through constitutional amendments.

"Effectively, what the Pakistan government has done is to rest direct control and vest it in a council with the Prime Minister. I ask myself, isn't India different? Aren't we a democratic country run by a Constitution? Do we not adhere to certain promises that we make, which are present in the Constitution on which five constitutional benches have weighed in? Or are we going to follow the example of people who put their PMs in jails?", he said.

Addressing the issue of Article 370 being termed a "temporary" provision as per the marginal note, Sankaranarayanan argued that many provisions across the Constitution were also temporary in nature and highlighted the need to scrutinize context. 

Potential misuse of Article 367

Sankarnarayanan then went on to discuss the potential misuse of Article 367, a provision related to interpretation clauses within the Constitution. It may be recalled that in the present case, the Constitutional Order 272 issued by the President on August 5, 2019 amended the definition clauses in Article 367 to hold that "Constituent Assembly of J&K" would mean the "Legislative Assembly of J&K" and "Government of J&K" would be construed as "Governor of J&K".

If this course of action is allowed, then it would mean that the Executive can change the meanings of words with a simple amendment to Article 367, instead of following the process under Article 368, which prescribe that ratification by majority of state assemblies are required for amending certain core provisions of the Constitution. Thus, under the guise of amending the definition clauses, substantive amendments can be carried out. 

"For example- the word 'person' in Article 21 can be interpreted to mean 'person accused of an offence'. In 367, I'll put an interpretation clause and say person means person accused of an offence. So all other rights under Article 21 are out of the window".

He further said that using Article 367, the Government could say that the the phrase "legislatures of not less that half of the states" in Article 368 could mean as "Rajya Sabha" or the "Law Minister".  

At this point, CJI Chandrachud, in a lighter vein, commented, "You're giving all these ideas, Mr Sankaranarayanan"

"Which is why, please take a sledgehammer to this. Justice Hidayatullah in Madhavrao Scindia said that we must take extreme examples to test what they're doing. I'm taking these extreme examples to show that if they're allowed to do this, heavens know what else they would do!"

Privy purse case cited

In his arguments, Sankaranarayanan cited the privy purse case judgment (H.H.Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Others vs Union of India) saying that it had striking parallels with the present case. There, the Government, instead of following amendment procedure, had invoked used Article 366 to withdraw the recognition of rulers of erstwhile princely states. The Supreme Court struck down the said action. Later, the Government had to amend the Constitution to abolish privy purses.

Citing this precedent, he highlighted that following of Constitutional processes is important in a democracy.

"The executive is not the sovereign. The people are the sovereigns in our constitution. Let there be no doubt about that", he said.

Article 356 can't be used to make irreversible changes

He further questioned the decisions taken to repeal the special status of the State when it was under President's rule under Article 356. The President's power to "make such incidental and consequential provisions" under Article 356 is to be exercised for the purpose of restoring democracy in the State and not to create irreversible changes.

He used another hypothetical example here. For example, one State has filed a suit against the Union of India in the Supreme Court. The Union can impose Presidential rule in the State and the President's power to make "incidental and consequential provisions" can be exercised to take a decision to withdraw that suit filed by the State against the Union.

Also from today's hearing - Supreme Court Discusses 'Self-Limiting' Nature Of Article 370, Asks How J&K Constitution Can Bind Indian Parliament [Day 9]

'J&K Governor Had No Idea' : Petitioners Cite Satya Pal Malik's Interview Before Supreme Court In Article 370 Case

Article 370 Case : Won't Touch Special Provisions For North Eastern States Or Other Parts, Centre Tells Supreme Court