Article 370 | Petitioners Banking On A 'Sinking Crown', No Residuary Power Remains With J&K: Respondents Argue [Day 14]

The fourteenth day of the Article 370 pleas before the Constitution bench of the Supreme Court saw arguments raised by the respondents pertaining to the powers of the President to abrogate Article 370 and the recommendatory power of the Constituent Assembly of J&K. The bench comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant was hearing the matter. 

Monarchy Dead, Petitioners Banking On A 'Sinking Crown': Senior Advocate Rakesh Dwivedi

Senior Advocate Rakesh Dwivedi, continuing his arguments from the previous day, asserted that the power provided under the substantive part of Article 370(3), could not be construed to mean that if the proviso lapses, the constituent power provided to the President also lapsed. He added–

"Yes, the proviso is a limitation so long as the JKCA(Jammu and Kashmir Constituent Assembly) is alive. It's death doesn't mean the death of the main power."

Countering arguments made by the petitioners concerning federalism, Dwivedi asserted that the Constitution framers wanted 'equal federalism' for all states and that was the Basic Structure of the Constitution—not asymmetry, difference, or diversity which all happened on account of special conditions of particular areas. He argued that any difference of power that was founded on special conditions could never be permanent because the moment the conditions changed, those provisions had to change as well. Elaborating upon the same, he said–

"The rider goes, the main part expands. The proviso goes, the main part expands and there would be no need for approval. The president means council of ministers and the council of ministers means collectively responsible to the parliament. So Article 53 read with 73 and read with 75(3), council of ministers can go to the parliament any time to obtain its views."

He added that the President had not taken the decision of abrogation on his own and had taken the whole of parliament into confidence. In this context, he stated that "the voice of the whole country is heard, including members of parliament of Kashmir who are also represented under council of ministers."

In his arguments, Dwivedi also contended that there was no residuary sovereignty left with Jammu and Kashmir as alleged by the petitioners. He stated that if the argument of the petitioners that 'residuary sovereignty, remnant sovereignty, and internal sovereignty' remained in Jammu and Kashmir was accepted then the same would be extremely potent. He added that such 'remnant sovereignty' had to be found within the Constitution of India if it existed. However, the same was not true. He said–

"So the monarchy is dead. Petitioners submissions are banking on a sinking crown."

J&K Constituent Assembly Didn't Enjoy Freedom That Indian Constituent Assembly Had: Dwivedi

As per Dwivedi, while framing of the J&K Constitution, the J&K Constituent Assembly did not enjoy the same freedom that the Constituent Assembly of India had as it was bound by various things. He listed the following as bounds on the J&K Constituent Assembly–

1. The J&K Constituent Assembly was bound in a manner that the sovereign democratic republic of India is not adversely affected.

2. The J&K Constituent Assembly had to ensure justice, liberty, fraternity.

3. It was also bound by Article 1 of the Indian Constitution and could thus, not declare themselves as not being a part of the federal unit of India.

4. The J&K Constituent Assembly could not say that any part of the J&K territory could not form a Union Territory of India.

5. It could not also say that the people who are permanent residents of J&K would not be the citizens of India.

"This methodology of the J&K Constituent Assembly is very akin to juristic concept of devolution of powers," added Dwivedi. For context, devolution of power is the statutory delegation of powers from the central government of a sovereign state to govern at a regional or local level. It is a form of administrative decentralization. Dwivedi stated that this concept was frequently applied in the UK, where the parliament of UK was considered to be supreme but other states such as Scotland, Northern Island, and the Wales had their own parliaments. He elaborated–

"So it doesn't matter that you call it Sadar-i-Riyasat, CM, Governor– the stature doesn't expand by these expressions. The stature depends on nature of power exercised. It doesn't equate with the nature of power of Prime Minister of India even if you call it Prime Minister."

He then added that the idea of having a Constituent Assembly of J&K emanated from the Government of India itself.

Concluding his arguments, Dwivedi remarked–

"It is surprising that my friends on the right, wedded to democracy, are seeking permanence based on a crown which is long gone. The king is dead, long live the king. You don't have to accede or execute a document for the purpose of becoming units. The preamble, Articles 1, 5, fundamental rights- all those make the republic. Without it, there is no republic."

No Residuary Power Remains With J&K: Senior Advocate V Giri

In his arguments, Senior Advocate Giri stated that the integration of J&K with India was now complete and there was no residuary power which existed with J&K any more. He added that while ideally Article 370 would've been deleted after the dissolution of the Constituent Assembly of J&K in 1957, even now it could not be contended that the power of the president under Article 370(3) ceased to be available because the proviso to Article 370(3) was no longer available to be operative as the Constituent Assembly didn't exist. He said–

"The recommendation power of the Constituent Assembly was intended to be co terminus with the life of the Constituent Assembly which was dissolved after the constitution of state was made."