Article 370 Continued To Operate Even After J&K Constituent Assembly Dissolution, Says Supreme Court During Hearing [Day 7 ]

On the seventh day of the Article 370 proceedings before the Supreme Court Constitution Bench, Senior Advocates Dushyant Dave, Shekhar Naphade and Dinesh Dwivedi put their arguments forth before the bench comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. 

The proceedings witnessed a discussion between CJI DY Chandrachud and Senior Advocate Dave on whether Article 370(3) had ceased to exist or not. The argument raised by Dave was that Article 370(3) had ceased to exist as it had already achieved its purpose. For context, Article 370(3) provides for the means to declare Article 370 as inoperative upon recommendation of the Constituent Assembly of J&K.

Dave argued that since the J&K Constituent Assembly no longer existed, Article 370(3) had also ceased to exist. However, Dave insisted that Article 370(1) continued to survive because if the Constitution of India was amended now and a new article was inserted, Article 370(1) would be used to apply it to J&K. To this submission, CJI said–

"You say that Article 370 has worked itself out and achieved its purpose once the Constituent Assembly of J&K has completed its task. But that would be belied by constitutional practice. Because even after 1957, there were orders issued progressively modifying the constitution in relation to J&K. This means that Article 370 had continued to operate even thereafter."

He added–

"If your argument is right, once the Constituent Assembly in 1957 takes its decision, there is no power to change any provision of the Constitution in relation to J&K."

Dave clarified that only Article 370(3) ceased to operate and Article 370(1) still continued. However, CJI DY Chandrachud asserted that the Constitution could not be read inconsistently. He stated that sans a constitutional amendment removing the inoperative clauses, the Court could either interpret all clauses to have survived or for all clauses to have perished. To this, Dave said – "Then let it all perish."

However, the CJI was not convinced and highlighted that there was over 64 years of constitutional practice applying Article 370 from 1958 to 2018 so the Article had clearly not ceased to exist. Continuing with his arguments, Dave stated that he was only concerned with the process followed and that the Article could have only removed by a constitutional amendment. 

Treaty Must Be Interpreted In Light Of Article 370: Dave

Senior Advocate Dave commenced his submissions by referring to the judgement in In Re: The Berubari Union v. Unknown (1960) to submit that the treaty-making power of the legislature had to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it. He argued that the treaty between India and J&K (Instrument of Accession) signed by Maharaja Hari Singh with the then Governor General of India to conditionally accede to the India was "now transfixed into Article 370." Therefore, the treaty had to be interpreted in the light of the limitations agreed upon by the Maharaja and India which were provided in the Indian Constitution under Article 370.

He then asserted that 'constituent power' was necessary to implement a treaty in a specific manner and the same could not be done by 'legislative power'. The said constituent power was provided under Article 368. This also meant that the action had to satisfy the requirements prescribed under Article 368, including obtaining the concurrence of a substantial section of the House which may normally mean consent of major parties of House.Therefore, to change the objectives of the IoA (which was a result of Article 370 abrogation), the parliament could not have resorted to exercising power under Article 356. Clarifying his submissions, he said–

"There are two submissions - one, that treaty is to be interpreted in light of what Constitution provides; two, if you want to touch that treaty, you can't do it as a legislative act, you have to do it in exercise of Constituent power." 

Article 370 Temporary From Perspective Of J&K, Not India: Dave

In his submissions, Senior Advocate Dave contended that Article 370 was temporary from the perspective of J&K, not temporary from perspective of Indian republic. This was because the choice to keep or remove Article 370 was left to Constituent Assembly of J&K and by an extension, the people of J&K. He stated that the Article was never intended to be permanent and the entire power of decision to make it applicable was left to Constituent Assembly. Thus, the President could not now state that Article 370 stood repealed. Arguing further that making a decision on whether Article 370 had to be continued or not was a 'one-time exercise' by the Constituent Assembly of J&K and the same could not be done again and again. He said–

"It was a one time exercise. It was not intended to be exercised again and again. Even the Constituent Assembly could not do it again. Suppose they passed a resolution later saying now we want to get out of India? Was that permissible? No."

Article 370 An Essential Feature Of Constitution for People Of J&K: Dave

"For the people of J&K this (Article 370) was the essential feature of the Constitution," said Dave while commencing the next leg of his arguments. He sought to establish the difference between the inclusion of Article 370 by the constituent assembly of India and the abrogation of the same by the Parliament of India in 2019. Stating that the constituent assembly debates took several years with the most brilliant men and women arguing the pros and cons of the same, Dave highlighted that the process of abrogation of Article 370 and reorganisation of J&K was done within a day or two. He said–

"On 5th August President issues a proclamation. Then it is sent to Rajya Sabha. Rajya Sabha sends a recommendation on the same day. Then Rajya Sabha approves reorganisation bill on the same day. Next day in Lok Sabha it is approved."

Asserting that the Article was not just a letter but "the feelings of people of J&K", he stated that while a law and order problem certainly existed, the same was not because of applicability or otherwise of the Indian Constitution in J&K.

No Justification To Abrogate Article 370: Dave

Dave contended that there was no justification for the Article to be abrogated and the same could be seen in the counter affidavit submitted by the Government of India. He stated that the counter itself provided that the Constituent Assembly of J&K did not in any manner deviate from Constitution of India and that the President had exercised his power without any material or any justification. To this, CJI DY Chandrachud asked–

"Are you inviting the court to review the wisdom of the decision of the government on the abrogation of 370? You are saying that judicial review should reassess the basis of the government's decision that it was not in national interest to continue Article 370? Judicial review would be confined to a constitutional violation."

Dave responded by submitting that if the exercise of power by the Constitution or Parliament has to be done under the Constitution itself, then constitutional sense and provisions prohibit both the President and the Parliament from touching Article 370(3) in any manner to abrogate it.

2019 BJP Election Manifesto Illegal: Dave

In his arguments, Dave also took the bench through the 2019 BJP Election manifesto which provided that if the voters voted for BJP, it would abrogate Article 370. In this context, Dave asserted that election manifestos could not be contrary to the Constitutional scheme and in 2015, even the Election Commission had issued guidelines to ensure that the manifestos must be as per constitutional scheme. He said–

"Today, because you have majority in parliament, you have done this. The only reason you did it is because you told people of India that vote for me and I'll abrogate 370. That shows that the power has been exercised for colourable considerations."

Existence Of J&K Constitution A Limitation On Powers Under Article 370(1)(d): Naphade

"Beneath the apparent constitutionality lies patent illegality," said Senior Advocate Shekhar Naphade while commencing his submissions. At the outset, he sought to establish that the formation of a Constituent Assembly was an act of sovereignty and the same was accepted by the Indian Republic. Further, even the existence of the J&K Constitution was recognised by the Indian Constitution. In this context, he submitted that no matter how widely one interpreted the power under Article 370(1)(d), the core of the J&K Constitution would always prevail. He defined this 'core' as including Part II of the J&K Constitution (Sections 3 & 5), Part V of the J&K Constitution (the Executive), and Part VI of the J&K Constitution (the Legislature) of the J&K Constitution. He asserted–

"There is no provision in the Constitution of India by which the J&K Constitution can be abrogated."

Naphade argued that originally, there were two routes to abrogate Article 370, one was through Article 370 itself and another was through Article 368. Stating that after 1957, the route of Article 370 had been closed. Thus, recourse had to be taken to Article 368. He added–

"The existence of the J&K constitution is a limitation both on the power of the President under Article 370(1)(d) and also the power of Parliament under Article 3 and 4."

Abolishing Of A State Impermissible: Naphade

Referring to the Presidential proclamation passed under Article 356, Naphade argued that the purpose of Article 356 was to restore state machinery and not destroy it. Questioning the jurisdiction of the Presidential proclamation, he said–

"The J&K assembly was dissolved in November 2018 and the governor assumed the powers under J&K constitution. The 356 proclamation came in December 2018. This presidential proclamation is clearly without jurisdiction. The reason is that the governor had already dissolved the assembly and assumed the powers of the state. Certainly, governor assuming the power can't be breakdown of state machinery. It is absurd to suggest that."

He took the argument a step further and stated that even if there was a breakdown of machinery, "Can you suspend the entire constitution? Because the president has issued a proclamation under 356? Once you accept that there are implied limitations, suspension of any part of the Constitution as a result of 356 must have a rationale nexus with the object that is to be achieved."

He then stated that Articles 355, 356, and 357 had to be read concurrently and the same would show that the only object of these provisions was that the State as a constitutional entity must survive. Thus, the J&K Reorganization Act was borne in unconstitutionality. 

Referring further to Article 3, he stated that there was a conscious omission as regards the power to abolish a state. The same had to be seen in the context of Article 1 which stated that India shall be a "Union of States". He added–

"The existence of a State is a part of the basic structure and J&K cannot be an exception to it. Because then why not tomorrow abolish Bengal? And by what parameter? According to me, no two interpretations are possible. There is a conscious omission of abolishing of states. Because India is a union of states. Article 3 has to be read with 355. If there is breakdown of machinery, restore normalcy. You cannot abolish a state."

Impact On Constitutional Structure Owing To Lack Of Representation Of J&K: Naphade

Elaborating upon the impact of turning J&K into a UT on the constitutional structure, Naphade contended the following–

1. Ladakh had no representative in the Rajya Sabha. "People of Ladakh therefore do not count as far as Rajya Sabha is concerned. So much for democracy," said Naphade while contending that people of Ladakh did not even have a say in the election of the Chairman of the Council of States under Articles 89 and 90.

2. J&K no longer has proportionate representation in the Lok Sabha. He argued that under Article 81(2), as far as other states were concerned, the number of seats were proportionate to the population of the State. But the same was no longer true for J&K.

3. J&K has no say in election of President. Naphade contended that for the election of the President, the electorate contained MPs from both Rajya Sabha and Lok Sabha and also the legislative members of respective states. Since J&K was not a state any more, it would have no say in the election of the President. "This is the exclusion of such a big area- no say in the election of the President - if not by direct, by indirect method," said Naphade.

4. People of J&K and Ladakh would have no representation in the GST council under Article 279A.

5. For appointment of High Court judges, while as far as other states were concerned, the governor was to be consulted. However, the Governor had to act on the aid and advice of council of ministers. Since there was none in J&K, this aspect was also affected.

Dual Polity For J&K Gone For A "Toss": Dwivedi

Senior Advocate Dwivedi argued that Union Territories were not a part of the federal structure as federal structures needed a "dual polity" which meant that laws had to be made both by the State legislature and the Parliament, depending upon the subject. He added–

"Noone can say that J&K didn't satisfy the requirement of federal structure. This is a case where the level of autonomy is stupendously raised. Nevertheless, it is a part of federal structure. But by reducing the state into UT, we're bring it under 246(4). So people of the state will now only have one legislature both for local and the national issues. Their right to be governed under a dual polity goes for a toss."

He also argued that unlike other states, J&K had not signed a “merger” or “standstill” agreement with India to transfer internal sovereignty of the state to India. Further, an IoA would not amount to surrender of sovereignty. Therefore, the residuary powers were retained with J&K and India had no right to breach this sovereignty.