Article 370 | Argument That Resurrection Of Article 370 Would Violate Basic Structure Too 'Far Fetched': Supreme Court [Day 15]

On the fifteenth day of the Article 370 proceedings before the Supreme Court Constitution Bench, the Union Government, along with other respondents drew their arguments to a close before a bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. The bench closed the arguments of the respondents' side.

During the hearing, the bench expressed disagreement with the argument raised by Senior Advocate V Giri that if Article 370 was resurrected, that would be violative of the basic structure of the Indian Constitution. The bench found this to be an untenable argument with CJI stating– 

"This might be a little too far fetched because then that would be to postulate that original Article 370 was violative of basic structure."

Article 370 Was Not In Sync With General Federal Features Of Indian Constitution: Senior Advocate V Giri

Continuing his submissions from the previous hearings, Senior Advocate V Giri argued that Article 370 carved out an area for Jammu and Kashmir which was not 'in sync' with the general federal features of the Constitution for the rest of the country. He stated that the Article set out the relationship between Union and Jammu and Kashmir at a plane which was different from the relationship between Union and all other states. He added that when Article 370 was abrogated by Constitutional Order 272 and all the provisions of the Indian Constitution became applicable to Jammu and Kashmir, the state of Jammu and Kashmir became a state 'at complete par with all other states'.

He then stated that if Article 370 was resurrected, that would be violative of the basic structure of the Indian Constitution. However, the bench expressed its reservations towards accepting the argument with the CJI remarking–

"This might be a little too far fetched because then that would be to postulate that original Article 370 was violative of basic structure."

When Giri insisted that Article 370, at the time it existed, had already been challenged on the ground, CJI said– "You can't invite us to hold in your favour on an unstateable proposition."

Extraordinary Power Of President Under 370(3) Must Be Read Without Any Restrictions: ASG KM Nataraj

Additional Solicitor General KM Nataraj, appearing for the Union asserted that Article 370 was the only provision in the Constitution which had 'a self destruction mechanism'. He further argued that the Article did not confer any kind of rights on the citizens of J&K and in fact, the continued application of Article 370 discriminated between citizens of Jammu and Kashmir and other citizens of the nation and thus, opposed the basic structure of the Indian Constitution.

Juxtaposing Article 370 with Article 368, the ASG submitted that the doctrine of federalism had no application in so far as the process under Article 370 was concerned. He stated that Article 368 recognised federalism in the context of an amendment to Constitution and also introduced the collective consent theory. However, Article 370, used the word 'recommendation' and thus, he stated that "reading these two articles together in a different language will make either of them redundant."

Justice Khanna, clarifying the submissions of the ASG remarked–

"Mr Nataraj, what you're probably trying to highlight is that the argument that the federal structure gets affected because of abrogation of 370 should not be accepted for the reason that the federal structure is protected by 368."

ASG Nataraj responded in an affirmative and underlined that the power provided to the President under Article 370(3) was a "unique, extraordinary power" and consisted of the the flavours of constituent power, executive power, and legislative power- all combined in one. Thus, he argued that such an extraordinary power should not be read with any limitations and it must be given the fullest meaning.

CO 272 Didn't Make A Substantive Change, Just Recognised An Implicit Provision: Senior Advocate Mahesh Jethmalani

Senior Advocate Mahesh Jethmalani was appearing for intervenors who were members of the Gujjar Bakerwal community in Jammu and Kashmir. The Gujjar Bakerwal is a scheduled tribe and constitutes over 73.25% of the total Scheduled Tribe population of Jammu and Kashmir, informed Jethmalani to the bench. He stated that the reason why the community supported the abrogation of Article 370 was because prior to the amendment, the provisions of the Indian Constitution pertaining to scheduled tribes were never applied to Jammu and Kashmir.

In his arguments, Jethmalani asserted that as far as political sovereignty was concerned, it rested with the Union government and the same could be proved by 'a simple look at the Preamble' of both Indian and Jammu and Kashmir Constitution. He underlined that while the word 'sovereign' was a key feature in the Indian Constitution, in contrast, the Jammu and Kashmir Constitution's Preamble made no mention of sovereignty and even defined the existing relationship of Union and the state. This was 'an acknowledgement of the Union's sovereignty over the state', as per Jethmalani. He added that Article 370(3) was indicative of the fact that ultimate 'legal sovereignty' rested with the Union of India. 

Jethmalani also took the bench though various constitution orders such as CO 10, CO 39, and CO 48 to prove that the Constituent Assembly and the Legislative assembly insofar as it applied to the Constitution of India were synonymous. He highlighted that while passing the CO 48, for the first time Article 367 route was utilised to amend the Indian Constitution's application to Jammu and Kashmir. To this, the CJI remarked–

"The fact still remains that after the Constitution of Jammu and Kashmir was framed on 26 Jan, 1957, Article 367(4)(d) was again amended to delete clause (d). So that equivalence between constituent and legislative assembly ceases the moment Constitution of J&K is framed."

However, Jethmalani asserted that the clause was deleted because after the dissolution of the Constituent Assembly, the constituent power of Jammu and Kashmir was now with the legislative assembly. He also reiterated the SG's submission that the alternative conclusion would have been that one could never abrogate Article 370. He said–

"All that the amendment to 367 did was to recognise an implicit provision. It was not only synonymous but also its successor. CO 272 did not make a substantive change. It made a clarificatory change which was already implicit."

Rights Perspective Trumps All Allegations Of Procedural Infirmities: Senior Advocate Gurukrishna Kumar

Senior Advocate Gurukrishna Kumar, appearing for persons displaced from the portion of Jammu and Kashmir which is now called Pakistan occupied Kashmir (PoK), asserted that a 'rights perspective' was the decisive factor in determining the tenability of the challenge mounted by the petitioners in the matter. Stating that the rights perspective would trump all allegations of procedural infirmities, he underlined the discrimination and loss of rights suffered by the applicants he was representing. He primarily focused on the rights of those displaced during the partition and were excluded from being recognised as 'permanent residents' of Jammu and Kashmir under Section 6 of the Jammu and Kashmir Constitution and Article 35A of the Indian Constitution. He added–

"I have given the case of how around 8700 people left that place during partition. Today, after the promulgation of impugned COs, at least 23,000 people have received domicile certificates."

Arguing that the impugned COs were reflective of transformative constitutionalism, he stated that the COs also ensured that the Constitution of India with all its plenary scope applied to the State of Jammu and Kashmir. "The challenge of the petitioners is contradiction in terms because this is a case where application of constitution of India is sought to be challenged. The COs make provisions for realisation of rights," he said.

This was followed by arguments raised by the intervenors. Advocate Kanu Agrawal, for Union, argued that the federal diversity in the Indian Constitution existed on a two dimensional plane. He said–

"At the centre would be the classical understanding of a state. To the right of it would be states with limited special features like Gujarat or Maharashtra. Thereafter would be states under fifth or sixth schedule. To the right end of it was the erstwhile Article 370. What petitioners forget is that there is a scale to the left of it as well. The scale to the left is the union territories with legislature, the UT of GNCT of Delhi and perhaps pure union territories. Therefore, federal diversity is undoubted."

Stating that diversity was a constitutional fact, he asserted that not all constitutional facts could be elevated to the level of basic structure. He then stated that there were two kinds of constituent powers- original and derivative power. Submitting that derivative power was always provided to further legislatures such as the parliament in this case, he asserted that the Constituent Assembly of Jammu and Kashmir had no original constituent powers as they were established under proclamation of a Maharaja who had already signed an Instrument of Accession. He added that the Maharaja had already recognised supremacy of Indian constitution and Article 1 was enforced unequivocally. In such a situation, he stated that a Maharaja who was not a sovereign could not have passed a better title than what he had. "If he was not a sovereign, the constituent assembly could never have been a sovereign constituent assembly, could never have established a sovereign constitution. It automatically exercised derivative constituent powers. If it is exercising derivative constituent powers, it is akin to a legislative assembly," he submitted.

Arguments were also raised by ASG Vikramjit Banerjee concerning Article 370 to be a 'temporary' provision. Advocate Archana Pathak Dave spoke of rights of women who married outside the State of Jammu and Kashmir and were denied permanent residentship as well as the right to employment, scholarship, and the right to hold immovable property. Other counsels spoke of the right of dignity attached to a Jammu and Kashmir citizen's nationality being questioned. The violations of rights of those persecuted before 2019 were also highlighted.

With this, the respondents concluded their arguments in the matter. 

Also from the hearing - Supreme Court Asks Article 370 Case Petitioner To File Affidavit Accepting India's Sovereignty & Affirming Allegiance To Indian Constitution