Article 370 Case | Special Provisions Not Unique To Jammu & Kashmir, Several Other States Have : Senior Advocate Rajeev Dhavan [Day 6]

"Autonomy of states is fundamental to our constitution", asserted Senior Advocate Dr Rajeev Dhavan as he addressed the Supreme Court Constitution Bench comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, which had convened to hear the batch of petitions challenging the dilution of Article 370 of the Constitution of India.

Marking the commencement of the sixth day of these hearings, Senior Advocate Dhavan navigated through various provisions of the Indian Constitution to highlight the diversity of the Indian Constitution and to underline that Jammu and Kashmir (J&K) was not the only state which was provided with autonomy, which as per him was "fundamental" part of the Constitution. He argued that the democratisation of power was necessary and that without the existence of– a) autonomy given to States and; b) special provisions and concessions given to people when needed, India would collapse. 

Autonomy Of States Fundamental To Constitution, Special Provisions Are Regular Features 

The quest for uniformity across the board which the two presidential orders (CO 272 and CO 273) sought to establish was not the heart of the Constitution. Instead, he submitted, that it was the autonomy within the federation and the special provisions made in relation to people, which made the Constitution what it was. "Take that away and we don't need such a big Constitution," he said while taking the bench through different provisions of the Constitution which gave autonomy to various State. 

He commenced this leg of his arguments with the proviso to Article 164, which specifically states that in the States of Bihar, Madhya Pradesh, and Orissa, there shall be a separate Minister in charge of tribal welfare who may also be in charge of the welfare of the Scheduled Castes and backward classes or any other work. He then took the bench through Articles 371 and 371A to 371J which provide for special provisions for different states. For context, Article 371 provides for provisions related Gujarat and Maharashtra, 371A for Nagaland, 371B for Assam, 371D for Andhra Pradesh and Telangana, 371E for Central University in Andhra Pradesh, 371F for Sikkim, 371G for Mizoram, 371H for Arunachal Pradesh, 371I for Goa, and 371J for Karnataka. 

Additionally, he also highlighted that Articles 239A and 239AA made special governance arrangements for the Union Territories of Pondicherry and Delhi respectively. 

Two areas he elaborated upon were provisions pertaining to the administration and control of Scheduled Areas and Scheduled Tribes (as under the Fifth Schedule) and provisions as to the administration of tribal areas in the States of Assam, Meghalaya, Tripura, and Mizoram (as under the Sixth Schedule). Along with these schedules, he also referred to Article 244A and Article 275. He argued that read together, these provisions contemplated “autonomous states” within India and gave special features of such areas having regard to diversity. He said–

"Bodoland is mentioned in the Constitution. Nagaland has autonomous councils...These are safeguards for federal unity of India, as was 370. It is the part of the basic structure of federalism in our constitution. These are limits the constitution has in relation to federalism." 

Emphasising further, he said–

"Our constitution doesn't shy away from creating autonomous states. Autonomy of states is fundamental to our constitution. Autonomy is not alien to our constitution. To say that special provisions can't be made in the Constitution is an anathema. These special provisions relate to certain classes. Special provisions are a regular features of our constitution. Without these, so much could not have been done for the SC/ST/OBCs."

In this context, Dr Dhavan submitted that the Indian Constitution was one of the most diverse constitutions in the world. To this submission, Justice Kaul responded–

"You're right, it's possibly more diverse than the whole of Europe combined."

Further elaborating upon his submissions Dr Dhavan stated that India was not just an asymmetric federation but in fact was a multi symmetric federation. He said–

"Europe, America, sub-saharan Africa, take parts of the south seas...I've called these asymmetrical provisions. These are in fact multi symmetrical provisions. This makes our constitution unlike any other in the world. Simple examples of asymmetry are Canada, you have French in one area and the English in other. Or Belgian, the three languages- those are asymmetrical. Indian constitution is multi symmetrical of which J&K is a part."

Article 370 Could Only Be Amended Through Article 368

Senior Advocate Dhavan argued that Article 370 applied fully from 1950 to 26th January 1957, with the J&K Constituent Assembly, having the option to amend Article 370. However, the assembly did not exercise the power to amend the article and dissolved in 1957. Post the dissolution of the assembly, Article 370(2) and (3) became otiose.  Article 370(1) survived and remained applicable and as per the same, matters within the IoA required only consultation with the Government of J&K, but the application of other provisions of the Indian Constitution under Article 370(1) were required to follow the mandatory concurrence procedure.

Thus, to dissolve Article 370, proper procedure to amend the Indian Constitution and then repeal Article 370 was to be followed as per Article 368. This was because Article 370(1) was an executive power, which could nor be used to amend the Indian Constitution which can only be amended through Article 368. Likewise, the power to amend the J&K constitution also did not lie with the Union but was inherent in Section 147 of the J&K Constitution, which had previously been used to amend the J&K constitution. 

Describing Article 370 as "the repository of merger agreement read with the IoA" and to that extent "a part of the basic structure - as a substitute for the merger agreement", Dr Dhavan stated–

"What 370 represents is two powerful democratic movements- in people of India, and in people of Kashmir, demanding their Maharaja, which is what he did - he gave up Rajya sabha, but he didn't agree to a constituent assembly which came later. All the IoA did was put in the four conditions and fed externally. That's why I made the distinction between external and internal sovereignty."

Changes In J&K's Territory Required Consent Of State Legislature

The next line of arguments of Dr Dhavan focused on Article 3 of the Constitution. As per Dr Dhavan, it was mandatory for the President to refer to the J&K Legislature for its views before passing any Bill affecting J&K's territory. In addition, it was also mandatory for the President to secure the J&K Legislature's positive consent to present the Bill in the Parliament. 

In this context, he invoked the proviso of Article 3 as per which the President was required the express consent of the J&K Legislature before introducing any Bill affecting the territory of J&K. He argued that circumventing the conditions under Article 3 and using President's Rule to abrogate 370 had the effect of an amendment, which was “subversive” to the Constitution.

He added that in any case, Article 3 could not have been invoked while the President's rule was going on. He stated that the same was because the power of the State Legislature under Article 3 was not transferable to Parliament during the proclamation under Article 356. Further, in the absence of a reference to a duly elected State Legislature, no Bill could have been introduced in Parliament under Article 3, in relation to the State of J&K.

President's Rule Cannot Be Used To Amend 'Mandatory' Provisions

In the final limb of his arguments, Dr Dhavan argued that there were certain "conditionalities" necessary for the exercise of Article 356. He stated that the same had been established by the Supreme Court in the judgement of M. Nagaraj & Others v. Union Of India. He stated that as per the same, all the documents concerning the President's Rule had to be made publically available and placed before the Parliament. Contending the same, he said–

"In this case, even the Governor's report wasn't placed before Parliament. A full, frank, and complete disclosure to the parliament and the people was necessary. The entire exercise of president's rule needs to be examined...The entire exercise of president's rule needs to be examined. Article 3, Article 370 contain mandatory requirements on information to be laid before house. Unfortunately, mandatory requirement of Article 3 was suspended by legislature. It is ultra vires and taints both the declaration and extension of president's rule in 2018 and 2019."

During the arguments on Article 356, CJI DY Chandrachud asked–

"How do we deal with Article 356(1)(c)? So the president has the power to suspend certain provisions of the constitution during the operation of proclamation under 356."

As per the said Article, the President under President's rule has the power to "make such incidental and consequential provisions as appear to the president to be necessary or desirable for giving effect to the objects of the Proclamation."

To this, Dhavan responded that abrogation of Article 370 went beyond supplementing the President's rule and resulted in removal of a mandatory provision. However, the CJI, seemingly unsatisfied with the response said–

"Normally when the legislature uses the word "means" and "includes"- it's an indication of expanding the power. So when the constitution says "make incidental and supplementary provisions" and then says "including"- this seems to widen the ambit of earlier part. "Including" would mean that what was otherwise not a supplementary or incidental provision, it is within the ambit of presidential proclamation. Isn't it? Suppose the president in a proclamation suspends the operation of any provision of the Constitution - is that amendable to be challenged on the ground that it is not incidental or supplemental? Or are these words widening the ambit of the first part of 356(1)(b)?"

Dr Dhavan held his ground and argued that he had never seen an application of Article 356 which actually used it to take away a mandatory provision. He added–

"If you expand 356(1)(c), then you will say that the president has a card to amend any part of the Constitution. 356(1)(c) has to be read with mandatory provision which it cannot dilute."

Continuing his line of questioning, the CJI said–

"The proviso seems to indicate that if the constitution wanted to exclude a power from the authority to suspend a provision of the constitution, that has been specifically defined. The proviso says that you will not suspend anything pertaining to a HC, or you'll not assume to yourself powers of HC during the operation of 356. So where it wanted to restraint, it did so."

To this, Dr Dhavan responded–

"It must relate to 356. Whatever is required to materialise 356, it must be related to that. "Necessary" or "desirable" are not carte blance powers of president. Could he have suspended Part III under 356? It has to be given a limited meaning."

Referring to Article 356 as a provision which had long been "used and abused", Dr Dhavan called for some discipline to be applied to the Article. He said–

"It (Article 356) is certainly not a power to amend the constitution...There are many provisions in the constitution where legislature exercises other powers- of election, consultation etc. So it has to be limited. Otherwise what happened in 5th August onwards- can happen to any other state during president's rule. It is limited to legislative powers. It certainly cannot amend the constitution. Or deprive the constitution of its mandatory procedural requirements."