Article 370 | 'Self Governance Better, No Constitutional Logic In Denying J&K Statehood': Petitioners Tell Supreme Court On Final Day

Yesterday marked the final day of arguments in the long-pending case challenging the Union Government's 2019 decision to repeal the special status of Jammu and Kashmir (J&K)under Article 370 of the Constitution, with the Supreme Court reserving its judgement in the matter. The day saw rejoinder arguments made by Senior Advocate Kapil Sibal, Senior Advocate Gopal Subramanium, Senior Advocate Zaffar Shah, Senior Advocate Rajeev Dhavan, and Senior Advocate Dushyant Dave. 

If You Give Such Power To Parliament, Anything Can Happen: Senior Advocate Kapil Sibal

In his arguments, Senior Advocate Sibal took the bench through the White Paper on Indian States (1950) where the list of merger agreements of States with India was given and asserted that while all other 552 states followed a uniform pattern of integration, the same was not true of J&K. He stated that after the Constitution of J&K was framed, the Constitution (Application to Jammu and Kashmir) Order, 1954 (Presidential Order CO 48) through an amendment, inserted a proviso to Article 368(2) as applicable to J&K. The said proviso ensured that Article 370 was not amended even through the exercise of constituent powers exercised under Article 368. He added that another reason why Article 368 did not apply to Article 370 was that Article 370 begins with a non-obstante clause.

Sibal reiterated from his earlier submissions that bilateralism was meant to be at the heart of the process of abrogation of Article 370 and such a unilateral act by the parliament could not be condoned. He then moved to the interpretation of Article 370 and stated that the Article only had two colons and the rest were all semi-colons. He said that the two colons resided in Article 370(1)(d) and clause (3). In this context, Sibal contended that, "you cannot exercise that power independently". Adding on to his arguments on the need of bilateralism, he stated that Article 370 was only a process of integration and thus–

"If you have to uphold CO 272 and 273 you will have to uphold it on its own terms. When it comes to 370(1)(b), you have to consult or concur. If it comes to 370(1)(d), again consult and concur. When it comes to 370(3), you can abrogate without consultation or concurrence? How can that interpretation ever be accepted by a constitutional court. That's a constitutional absurdity- that for individual article you have to concur but for the whole abrogation you don't have to concur?"

Sibal also stated that all articles under Chapter XXI of the Constitution, which provided with temporary, transitional, and special provisions start with a non-obstante clause and cannot be touched by Article 368. As far as J&K was concerned, there was an extra proviso added in terms of Article 370(3).

Regarding the misuse of Article 356, the senior advocate stated that once the dissolution of the legislative assembly had taken place, Article 356 could not have been imposed. "If you give such power to parliament under 356, anything can happen. I'm digressing a bit but with respect to Maharashtra, I said that if Maharashtra is upheld, it will happen again and it happened in Maharashtra itself," he said. He underscored that Constitutional adjudication is not for a particular case but will have a precedent value for prosperity.

To counter the submission made by the SG that the government had to modify Article 367 to amend Article 370 because it was impossible to amend Article 370 in any other way, Sibal stated that since there was no constitutional obligation to be performed in the case, the principle of impossibility could not be applied in this case. He said–

"370 says "may" not "shall"[abrogate Article]. Where is the question of impossibility?"

Finally, Sibal asserted that even if there had been a national security situation, the same should have been dealt with under the provisions of Article 352-259 and that resorting to Article 3 and converting the State to a Union Territory was impermissible. Supporting his arguments, he said–

"Pulwama happened in February 2019 during the President's rule and then they held elections in May 2019. What is the justification of not constituting the state for 4.5 years? You say you're going to have municipal, local governance elections, tourism has increased. So what is the impediment then? What's the constitutional logic that you can use to deny people of J&K statehood?"

Constitution Of India Recognises Constitution Of J&K: Senior Advocate Gopal Subramanium

Senior Advocate Gopal Subramanium, in his arguments stated that while Article 370 may have been a temporary provision initially, there was now adequate evidence to suggest that the Article was here to stay. He said that the Constitution of India had given the people of J&K the ability to determine their political future and that the  Constitution of India does recognise the J&K Constitution.

He also argued that the word 'recommendation' in Article 370(3) was chosen consciously because the Constituent Assembly of J&K was not constituted by the Government of India and it was under the proclamation of the Maharaja. He stated that the President was a part of the parliament as the Parliament, by its very definition, included the President and the two houses. Further, the President could never act without the aid and advice of council of ministers and thus, the claim of untrammelled power of President was flawed.

He said, "What is the further integration we're talking about? It is an article of faith, it's a parchment of pride for the people of J&K."

The CJI then stated–

"The domain of the Constitution of J&K was that which was defined by Constitution of India. This was not therefore a Constitution which was at par with or superior to Constitution of India."

While Subramanium agreed that the J&K Constitution was not superior to the Indian Constitution, he also expressed reservations in calling the J&K Constitution as inferior to the Indian Constitution. He stated that the same was because the J&K Constitution had established courts of law and the legislature. He said–

"It's a constitution. The J&K HC owes its existence to this constitution. The legislature of J&K owes its existence to this constitution. These are institutions of a permanent nature established under the Constitution."

Self Governance Better Than Good Governance: Senior Advocate Zaffar Shah 

Senior Advocate Zaffar Shah commenced his rejoinder arguments by taking the bench through the history of J&K's accession with India. He reiterated from his earlier submissions that the residual sovereignty had remained with the Maharaja and later got transferred over to people and in the exercise of that residual sovereignty, the Constitution of J&K was made. He said–

"In 1957, we adopted our own constitution. Prior to that, we had Constituent Assembly. But after the constitution was adopted- the state government comes under existence under the constitution of J&K. At the same time, it is required to give concurrence under Article 370."

Insofar that development is concerned, he asserted that "self governance is better than good governance" and urged the bench to give J&K its self governance back. He said–

"They say nation has to grow, we want to have a unified nation. Of course, very good thought. But for that you need to win hearts of people. You cannot form a nation by force or by compulsion. Win the hearts of the people."

Compromises Throughout Constitution: Senior Advocate Rajeev Dhavan

Senior Advocate Rajeev Dhavan commenced his arguments by pondering upon the question of temporality. He stated that there were two sets of powers assigned to Constituent Assembly of the J&K. First one was to reject the Constitution making process completely, that was through Article 370(3). The Constituent Assembly did not exercise that power. The second one was to fulfill its task of making a constitution. The same was fulfilled in 1956. He stated that after the Constitution was made, Article 370 ceased to be a temporary provision.

He then spoke of the importance of compromises in the constitution making process. He said–

"Article 370 is a compromise. You will find compromises throughout in the Constitution. Take for example Article 25, Sikhs are allowed to carry their daggers. You want to get rid of that? You'll have to have a constitutional amendment. This is a compromise. The entire 6th schedule is a compromise...Any compromises in the Constitution follow from an important insight...if today we were asked to make a constitution, we would not succeed...Israel was never able to come to terms with a constitution because it never was able to evolve a compromise. That is the process of constitution making - to accomodate a large number of views and come to a compromise."

He added that the argument that socialism and secularism was not recognised in J&K was flawed as Section 13 of the J&K constitution recognised the same.

On Article 3 and the reorganisation of J&K, he stated that Article 3 had a mandatory provision requirig the Union to circulate any bill for reorganization to that State's legislature. He stated that this mandatory provision was not followed. He added–

"It is true that the centre is not bound by all your recommendations and subsequent changes can take place. But this doesn't take away from the fact that Art 3 is a mandatory provision."

In his arguments, Dhavan also referred to the Union's promise of restoring statehood of J&K as 'illusory'. He added that the Constitution was divided itself into two halves- a federation of states and devolutionary provisions. He stated that UTs formed a part of the devolutionary provisions and were not a part of the federation of States. Concluding his arguments, he said–

"What is the relief we're seeking? All your lordships have to adjudicate is the temporality of Article 370...and whether mandatory provisions are defeasible. The antecedent speeches are totally and completely irrelevant because as soon as 370 is born, that is the provision that is the incorporated provison."

Not One Example Of Article 370 Failing Can Be Provided: Senior Advocate Dushyant Dave

Senior Advocate Dushyant Dave concluded the rejoinder arguments for the petitioners and asserted that, "whichever way your lordships look at this- democracy, federalism, rule of law- each one of them is a basic structure of the Constitution. Every one of those principles are completely thrown out of the window by this."

He argued that for 70 years, if the government of India had, through multiple constitutional orders, exercised powers under Article 370, it could not now say that Article 370 was a temporary provision. He added–

"Merely because government has changed does it mean it has become temporary? It is not the case of government of India that 370 has not worked for the last 73 years. Not one example to show that 370 has failed. Everytime the government wanted to apply anything, it was automatically accepted by state of J&K."

Stating that it was unfathomable that the government abrogated Article 370, he stated that the only reason they did so was because in their manifesto, BJP had categorically stated in 2019 that it will abrogate Article 370. Adding that Article 370 had become a 'bone of contention' with certain sections of the country, he argued that noone really understood what the article was and that the article simply integrated J&K with India. He said–

"It's not that people of J&K will die if 370 is taken away. But people have a right to feel that can a constitutional promise be taken away like this? They're also citizens of India, they're not foreigners. There is nothing, even after 2019. Violence has gone on unabated. People are being killed. Soldiers are dying. You have millions of troops..."

He argued that constitutional morality must be in the heart of all citizens and that the court should not "allow union to steamroll so that people lose their love and affection."

Concluding his submissions, he said, "You can't rule by force all the time otherwise the governance is lost..."

Coverage of previous days :