Article 370 Case | J&K Retained Autonomy, It Signed IoA To 'Shake Hands' With India, Not To Embrace It Fully : Zaffar Shah To Supreme Court [Day 5]

On the fifth day of the Indian Supreme Court's hearing in the batch of petitions challenging the dilution of Article 370 of the Constitution of India, Senior Advocate Zaffar Shah, appearing for the J&K High Court Bar Association argued that the State of Jammu and Kashmir (J&K) had retained some constitutional autonomy as it had signed an Instrument of Accession (IoA) and not a merger agreement. 

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

J&K Retained Constitutional Autonomy As It Didn't Sign A Merger Agreement

Senior Advocate Shah commenced his arguments by underlining the autonomous nature of the erstwhile state of J&K. He did so by taking the bench through the history of J&K's accession with India and the subsequent formation of the Constitution of J&K. He first highlighted that the Maharaja of J&K did not handover his entire sovereignty to the Dominion of India and instead kept with himself certain powers, including the power to make laws except those relating to foreign affairs, communication, and defence. As per Shah, this residual power of the Maharaja came to be subsumed by the Article 370, which envisioned that it would be entirely for the people of J&K to integrate with India. He argued that J&K had not signed a merger agreement with the Dominion of India like the other states, instead, it had signed the IoA to "shake hands" with India but not "embrace it" entirely.

Shah then elaborated upon Article 370 and stated that since J&K had already "donated" some of its powers to India in the IoA, namely the power of defence, communication, foreign affairs, the State wanted there to be no more donation. Therefore, Article 370 was framed in a manner where its consultation or concurrence was necessary to make laws. He asserted that there were limitations provided in Article 370 itself with regard to the power of the Indian parliament to make laws for J&K. One of these limitations was that if a law was to be made on a subject provided under List I or List III, which was not a subject covered by the IoA, the concurrence with the State Government was required. This, according to Shah meant concurrence of the people of the state via the council of ministers. He reiterated that this "special treatment" was given to J&K because there was no merger agreement it had signed. Therefore, the autonomy granted to J&K had to be maintained.

He argued that there existed a limitation on parliament to make laws in J&K because despite having acceded with India, the mechanism for J&K was different as it had subsumed the residuary authority that Maharaja had. He added–

"We believe that we have constitutional autonomy under the Constitution of India itself. That was taken away. We're contending that you cannot take away the autonomy of the State. This autonomy comes from IoA and Article 370." 

President 'Deoperationalised' Article 370 To Take J&K's Constitutional Autonomy

Describing Article 370 as an Article which could have been a “substitute for a merger agreement if complete integration (of J&K with India) had to take place”, Shah elaborated further upon the constitutional autonomy of the State as embedded in Article 370. Shah highlighted that Article 370(1)(i) used the term “consultation” and Article 370(1)(ii) as well as 370(1)(d) used the term "concurrence". He underlined that "concurrence" meant that both parties had to agree. He added that under Article 370, it could not be conceived that the Parliament extends Indian laws to be applicable to J&K when there is no corresponding constitutional Entry for the same which would support the extension of the law to the State.

In this backdrop, taking the bench through CO 272, he argued that the presidential order stated that "the article ceases to be operative". Thus, this was not a mere amendment but the President was provided with the power to deoperationalise the article. Describing the government's action as gradually "chipping the power of the State legislature" he stated that while in 1950, the State legislature had the total power of making laws except three subjects, subsequent to Article 370, they had to concur with the Union and request them to apply laws. 

The discussion then shifted to the issue of assumed permanence of Article 370. In this context, Justice Kaul said–

"Saying that 370 is permanent is really difficult. Suppose the state itself says that we want all laws to apply, then where does 370 goes? Then we really come back to the process. Was this process permissible of not?"

Shah argued that the question was whether on 5th August 2019 the Article had become permanent because the machinery was not available to remove it. He added–

"If you want to completely integrate, we have to get rid of IoA, 370, and execute a merger agreement. We go back to the roots."

Justice Kaul responded–

"These were historical developments that too place. The effectiveness of 370 in terms of preserving the rights in the state to lay down the law shifted. Something still remained. That something which remained, they removed it by process of 370. Whether the process was right or wrong is the question...Under 370, which was the medium of communication between centre and state, a methodology was established. That truly if you wanted to do it, you could...Historically too if you see it has been done over a period of time."

At this juncture, the bench also orally observed that the surrender of Jammu and Kashmir's sovereignty to India had been unconditional and absolute. It was further underlined by the bench that fetters placed on the Indian Parliament in terms of its law making powers in relation to Jammu and Kashmir does not mean any dilution of the sovereignty vested in India. 

Permanent Residents Must Be Protected

In the next limb of his arguments, Shah again took the bench through the history and stated that the idea was to protect individuals who lived in the State of J&K as permanent residents. Tracing the roots of this protection, Shah asserted that the same was granted to the permanent residents in terms of a notification of 1927. He said–

"Interestingly, at that point of time, an agitation was raised by a community. Unfortunately they left us. And we owe a lot to that community because we were taught by them. They agitated because they were the educated class. The king would get people from Punjab and other areas. So they said they need jobs and agitated. That resulted in a notification of 1927. It restricted appointment to permanent residents."

He gave several reasons for the said protection which included protection of jobs and properties and grant of additional rights and privileges. However, the most important reason he stated was to keep the region intact. Underlining that J&K was made of three regions- Ladakh, Kashmir, Jammu, he stated that the erstwhile Maharaja wanted to bring all the three together and thus the State was formed. Expressing his anguish on divisions created, he said–

"What is done now? It has been divided. The people are divided. Part of it is with Pakistan, part of it with China- about 2000 kms in Aksai Chan, remaining part is here. We're being sandwiched by all forces being applied. We need to be united with the three regions. We need to live how we were living."

Council Of Ministers Necessary For Concurrence

Shah then stated that Article 370 envisaged the government of the state to be aided and advised by the council of ministers. He added that the same was an extremely important part of the power to be exercised by the Governor as the head of the state in making any kind of recommendation to the President. Thus, he argued that the Governor, by communicating the State Government's concurrence to pass the 2019 Presidential Order when there existed no council of ministers, had breached this oath under Article 31 of the J&K Constitution and was liable to be impeached. Expounding further on his point, her said–

"In terms of the presidential notification, the President of India assumes to himself the powers of the governor not only under the constitution of India but also the constitution of J&K. When he assumes to himself the jurisdiction that I'm the governor, I fail to understand who could make the recommendation under 356?"

He highlighted further that the opening words of CO 272 were "the president in concurrence with Government of J&K..." and the same meant a government which had council of ministers in place. He added that this council of ministers also established the political presence of people and as an extension, also established an element of democracy.

Concluding his arguments, he said–

"You use 367, alter 370, take it back and then you kill 367 itself. It's not a bonafide action. It's not legitimate. 370 as a matter of fact, is a case of where the government wants to do something but there is a constitutional obstacle."

This was followed by the submissions of Senior Advocate Rajeev Dhavan who, in his limited time, highlighted that India was the most diverse nation in the world and this diversity was reflected in the Indian Constitution. He urged the court to honour the historic promises made to the people of J&K. Senior Advocate Dhavan will resume his arguments on 16.08.2023.