Can't Accept Argument That Article 370 Ceased To Exist Post J&K Constitution Enactment, Says Supreme Court During Hearing [Day 8]

Closing in on the eight day of arguments in the Article 370 pleas, the Supreme Court Constitution bench expressed its reservations towards accepting the argument that Article 370 had ceased to exist once the J&K Constitution was framed. The bench comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, stated that the consequence of Article 370 ceasing to exist once the J&K Constitution was framed would be that the Constitution of India in its application to J&K would stand frozen as of 1957 and no further development in Indian constitution could then apply to J&K. On this argument, the CJI had expressed his disapproval asking, "How can that be?"

The eight day saw arguments raised by Senior Advocate Dinesh Dwivedi, Senior Advocate CU Singh, Senior Advocate Sanjay Parikh, and Senior Advocate PC Sen.

Kashmir Was 'Different': Dwivedi

The arguments of the day commenced with Senior Advocate Dinesh Dwivedi who asserted that the accession of J&K with India was distinct from that of other States as J&K never signed a standstill agreement and it acceded with India after August 15, 1947. On the other hand, other princely states ceded all their sovereignty in an unqualified manner with India by signing the standstill agreement which was a pre-condition to the accession. He then stated that J&K acceded to India as a Part B state like all the other Princely States. Article 238, which dealt with the application of provisions of Part VI to States, was made applicable to only Part B states. Dwivedi highlighted that Article 238 “keeps the promise of applying the constitution of the State to the Constitution of India” and was required for all Indian States to merge unconditionally into India. However, Article 238 was excluded in its application to J&K and was never made applicable to the State. Dwivedi asserted–

"That speaks volumes about the autonomy of the state. Our basic theme is that Kashmir was different. Kashmir was different both in terms of accession to dominion of India where it ceded at a different time as an independent state or a nation, and it was different in the sense that it didn't merge unlike the other states. The conditions added in favour of Kashmir- that we're not bound by the Constitution or the future constitution, the internal sovereignty rests with the ruler, the Union of India cannot acquire land in Kashmir- these were different."

He then stated that sovereignty was retained by the Raja of Kashmir in the Instrument of Accession. In this context, he said that the idea of sovereignty was a variable concept and consisted of two factors- internal and external. Thus, merely because a State may have ceded external sovereignty which included defence, external affairs, and communications, it did not amount to ceding of internal sovereignty as well. Continuing this line of argumentation, he said that Kashmir did not lose all internal sovereignty just because it acceded.

Article 370 Ceased To Operate Once J&K Constitution Was Enacted: Dwivedi

In the next limb of his arguments, Dwivedi stated that Article 370 ceased to operate once the Constitution of J&K was enacted in 1957. Accordingly, all the powers conferred under Article 370 (to abrogate it) also ceased to operate when the J&K Constitution was made. In that context, he stated that it was important to keep in mind the object of Article 370 and the commitments made. He said– "We always say that our framers were very wise. But when it comes to the commitments they made- we forget it."

To support his argument, Dwivedi referred to a speech of Dr Gopalaswami Ayyangar made during the Constituent Assembly debates. Referring to Article 370 as an 'interim arrangement', he said that the final decision with regard to the jurisdiction of the Union and the Indian Parliament over Kashmir as well as the Centre and State relations was always meant to be taken by the Constituent Assembly. Still referring to Dr Ayyangar's speech he stated that at the time of formation of Article 370, neither the Constituent Assembly, nor the State Legislative Assembly for J&K had existed. Thus, the Constitution makers were forced to consult the government till the Constituent Assembly of J&K was formed.

"This leaves no room for doubt. All provisions of consultation and concurrence with government of Kashmir cease to operate once the Constituent Assembly starts. All this argument that it has become permanent - we are giving meaning to the word 'temporary' used in the Constitutional provisions de hors the context," argued Dwivedi.

Referring to Constituent Assembly as the most august assembly, with "men who fully knew what Constitution means", Dwivedi asserted that when they say Kashmir should frame their own constitution, they couldn't have implied anything else. At this juncture, the CJI expressed his reservations accepting that the speech by Dr Ayyangar represented the whole country's commitment to J&K. He asked–

"Can we say that a speech made by an individual member of the Constituent Assembly, however weighty, represents a commitment by the nation to J&K? This would have a bearing on the interpretation of Constitution."

Dwivedi responded to the same by stating that the country's thinking, which it had been tuned to follow for last 70 years, was "one nation, one constitution" but the same was nowhere prescribed? He added–

"I am not here to judge whether they were right or not, I'm telling you what intent can be culled out from the debates. We may not like it but all I'm showing is the intent. And can Article 370 be divorced from the intent?"

Justice Kaul interjected his arguments and stated that it was also important to see how the usage of the Article transpired and worked out once it was implemented. However, Dwivedi maintained his stance and said that "any amount of illegality of actions taken thereafter cannot justify the validity".

Justice Kaul urged Dwivedi to see the consequences of what would happen if the bench was to accept his submission that Article 370 had ceased to exist. Dwivedi maintained his stance that there would be no adverse consequences if the argument was accepted as that was the intent of the framers when they permitted J&K to make its own Constitution. Stating that Constitutions were not made for a day and were instead made for the lifetime of a state or a nation, he added that the Constitution of J&K could not be seen as an interim measure. The bench seemed dissatisfied with this line of argumentation. The CJI said–

"The net consequence would be that the Constitution of India in its application to J&K would stand frozen as of 1957. Therefore, no further development in Indian constitution can at all apply to J&K according to you. How can that be accepted?"

Underlining further consequences, the CJI continued–

"If Article 370 ceases to operate and Article 1 continues to operate, then J&K is an integral part of India. Surely, the jurisdiction of every democratically elected institution is not excluded...There has to be then a provision in Indian constitution which excludes its application to J&K. Article 5 says that the legislative and executive powers of the State would extend to all matters except those with respect to which parliament has power to make laws. That means provisions of constitution of india. That postulates that Indian constitution does apply to J&K. Unless we accept that Art 370 existed till 2019, there would be no trammel on the jurisdiction of parliament. If we accept your argument, there would be no restraint on the power of parliament."

Adding to this, Justice Kaul said–

"You're saying that all that happened for last few decades is wrong, noone understood the constitution."

While concluding his arguments, Dwivedi mused- "I hope I did not ruffle too many feathers."

Written Constitution Is Supreme: Parikh

Senior Advocate Sanjay Parikh put forth his submissions next. He contended that the people of Kashmir had come together and gave themselves a manifesto as per which they wanted a Constitution and an economic plan for Kashmir. He added that the sovereignty of J&K rested with the people and they expressed their sovereignty in a specific way. This sovereignty, he added, was translated to J&K constitution. "When there is a written constitution, the written constitution becomes supreme," said Parikh.

In his arguments, Parikh also highlighted that Article 357 was never adopted for J&K and the implication of the same was that Indian parliament could not assume to itself the power of the State legislature to enact law and could not further delegate it to the President. He also stated that the recommendation of the Constituent Assembly was interchanged by recommendation of parliament. This meant that something which could not have been done directly, was done indirectly. 

Our constitution Is Anti-majoritarianism: Sen

Senior Advocate PC Sen, framed his arguments under three broad heads- historical, jurisprudential, and in terms of constitutional ethos. Talking about the historical context, Sen submitted that the J&K region consisted of a Muslim majority. Its population had a choice between going into Pakistan and being a majority or staying in India to be a minority. They chose the latter and made a conscious choice to remain a minority in a region in the backdrop of horrific violence of partition. He stated that in this backdrop, if there is a constitutional promise in nature of Article 370, the same should be strictly construed.

"When there is a conscious choice is made in this manner, it is all the more reason to strictly construe", contended Sen

Arguing then on jurisprudence and the constitutional ethos, Sen submitted that asymmetrical federalism, as under the Constitution, provided for protection against majoritarianism. "Our constitution is also anti-majoritarianism," Sen asserted. In this context, he stated that the moment there was a fundamental constitutional principle, there must also be a limit. While talking about anti-majoritarian rights, he also highlighted LGBTQ+ judgments and how there was a devolution taking place. He added–

"If one were to do away with this thing which involves historically a religious minority, that would be a regressive step."

Finally he argued that as per material that already existed on record J&K ranked higher than other states when it came to peace, security, effective governance based on rule of law, and upholding principles of equality. Thus, there was no reason to impose Article 356 in J&K.