Jammu & Kashmir Case | 2019 Presidential Order Indirectly Amends Article 370, Which Is Impermissible : Gopal Subramanium To Supreme Court [Day 4]

On the fourth day of the Indian Supreme Court's hearing in the batch of petitions challenging the dilution of Article 370 of the Constitution of India, Senior Advocate Gopal Subramanium argued that asymmetric federalism, autonomy, and consent were the three pillars of Article 370. He also stated that the exercise of power under Article 356 could not clothe the Government with legal authority under Article 370.

The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant was hearing the matter. 

Coexistence Of Constitutions of India & J&K Essence Of Their Relationship 

Senior Advocate Subramanium commenced his arguments by stating that there existed various methods of constitutional interpretation such as applying historical arguments, textual arguments, doctrinal arguments, structural arguments and so on. He emphasized that regardless of the approach taken, the outcome remained consistent– that the abrogation of Article 370 by the 2019 Presidential Orders was inconsistent with established law. In this context, he submitted four propositions–

1. He asserted that the two frameworks of the Constitution of India and the Constitution of J&K were not isolated entities but rather intertwined in a complementary manner. Their coexistence, he emphasized, formed the very essence of the dynamic relationship between India and J&K.

2. Constituent Assembly was the primary assembly tasked with framing of the Constitution. He added that there existed not one but two Constituent Assemblies in this case- one of India and another of the J&K.

3. The impugned orders (CO 272 and CO 273), in sum and substance unilaterally removed the Constitution of J&K and the said action was impermissible and not authorised. 

4. Finally, the expression "people" in the constitutional context have a legal and juridical existence.

Asymmetric Federalism, Autonomy, Consent: Pillars of 370

After introducing the issue in the court, Senior Advocate Subramanium delved into the foundational pillars of Article 370, shedding light on their significance in shaping the context, text, and structure of the article. He argued that these pillars – asymmetric federalism, autonomy, and consent – are integral to understanding the complex nature of Article 370 and its role in the relationship between India and Jammu and Kashmir.

- Asymmetric Federalism

The concept of asymmetric federalism recognizes that the diversity and heterogeneity of a polity are reflected in the diversity of its federal arrangements. Subramanium asserted that the Indian Constitution recognises asymmetric federalism and takes note of special conditions and special needs of people. For this purpose, he cited a speech of Dr BR Ambedkar in which he introduced the Constitution. He said–

"His (Dr Ambedkar's) introductory speech had two themes. He speaks about the Indian Constitution being federal. He also says that people who live in a state can be given special rights, privileges."

He then outlined the circumstances that distinguished J&K from other states during its accession and provided the bench with two reasons for the same– first, J&K had its own constitution prior to accession and; second, the accession was qualified because people were still in the process of making up their mind. Highlighting that the Indian Constituent Assembly thought that it was appropriate and necessary to ascertain the will of people, he said– "They maintained the highest sense of democracy and respect. That is the reason why draft article 306A spoke about the Constituent Assembly of J&K taking a decision."

Following this, Subramaniam took the bench through the debates of the Constituent Assembly J&K, referring to them as equally inspiring as the Indian Constituent Assembly debates. Drawing conclusions from these debates, he stated that the J&K Constituent Assembly took its decision in three steps– first, they left India in no manner of doubt that they have faith and respect for people of India and are acceding to India; second, they studied many constitutions across the globe and also the Indian Constitution and; third, they decided that they needed some special provisions for themselves in the Indian Constitution. Giving an example of such special provisions, the senior counsel said–

"One of the first States in India which looked at land reforms was Kashmir. It was actually their throbbing concern at that time that we must give rights over land to our people and they must be permanent residents. They said that we will frame our constitution but we will request the Government of India that its constitution will have exceptions which we need for J&K brought into effect under Article 370."

The request was accepted by the Government of India.

Stating that the asymmetric federalism allowed the two constituent assemblies to speak to each other, he added–

"The two Constitutions speak to each other. From which provision? Article 370. Art 370 was not a repository of untrammeled power, but a medium through the Indian Constitution would apply. Here lies what I call dual obligation."

This "dual obligation", he said could be discovered in the words of Section 147 of the J&K Constitution and the words of Article 370 itself. As per Section 147, no bill could be introduced or moved in the State Legislative Assembly to amend or change Articles 3 and 5 which stated that J&K would be a part of India. He said–

"In Section 147, one law which couldn't be touched was the provisions of Constitution of India as applied to J&K. And what did we under Article 370 offer? We offered the ability to frame a Constitution and the ability to offer our Constitution subject to special exceptions...This is a product of bilateralism."

- Autonomy

The Senior Advocate then referred to autonomy as a pillar of Article 370. Taking the bench through the history of J&K's accession, he stated–

"On 26.10.1947 Hari Singh signed the IoA. It wasn't like others. All others signed supplementary agreements."

He further highlighted that the Indian constitution did not ask the Maharaja to discover the will of people. Instead, it acknowledged that there should be a constituent assembly by which will of people of J&K should be ascertained. In this context, Subramanium said–

"Even though he (the Maharaja) was titular head, people of J&K were acting in sovereign capacity."

- Consent

Finally, Subramanium referred to the consent of people which manifested as a commitment to public participation in constitutional change as the third pillar. Through correspondence between the heads of India and J&K, he established that there existed an expression of "extraordinary goodwill" between India and J&K. He said–

"My submission is that the Constitution of India was made applicable with exceptions and modifications as a part of the Constituent Assembly's decision. It was not an imposition by the President at all."

To establish the same, he highlighted the exceptions and the modifications as made by the Constituent Assembly of the J&K to apply to the Indian Constitution in its application to J&K. He said–

"What they did was that the applied some parts, omitted some parts. They omitted Part VI, VII, VIII, IX, X- of Indian Constitution and they applied this Constitution...In their constitution they first recognized Indian constitution. They said they're an integral part of India. They said that we have powers to legislate except where parliament of India has power to legislate and they created their legislature. Their statehood is defined by their constitution."

Subramanium also highlighted Section 2(1)(a) of the J&K Constitution which defined the Constitution of India as "Constitution of India as applicable in relation to the State." He said–

"So we have an act of affirmation from government accepting the suggestion that constitution should be applied, they say please apply with exceptions and modifications, government agrees. Then they define Constitution as applicable to them. Section 147 should be interpreted in the light of this- that the legislature can never touch Constitution of India as applied to them."

He asserted that the provisions to the Constitution of India were not applied to J&K only through a 370 order, but they were embraced into the J&K constitution with consent. 

"The nature of the constituent assembly power is as pristine and pure as any assembly. This is the equality we have practiced. This is the level of statesmenship India practices. Whatever constituent assembly wanted, we accorded it. Can the legislature of a State under the J&K constitution be rendered redundant?," he added.

CO 272's Indirect Amendment Of Article 370(1)(d) Is Invalid 

In the next limb of his arguments, Senior Advocate Subramanium submitted that the 2019 Presidential Order which amended Article 370 through Article 367 was invalid. He asserted that it militated against the principle of exceptions and modifications which would be bilaterally urged and this "emasculated bilateralism inbuilt in Article 370(1)".

He further argued that while Article 370(1)(d) authorises the application of the provisions of this Constitution to the State of J&K, subject to exceptions or modifications that the President, it does not authorise the creation of substantively new constitutional provisions which are then applied to the State of J&K. This, he stated, was what Article 367(4), post amendment, purported to do.

He added that an amendment could not be achieved by an interpretation provision. He said–

"A new exception or modification is now carved out for the application of the entire Constitution. That exception or modification is no more than what is seemingly a change in a provision of interpretation. The provision of interpretation, or to aid interpretation, is an aid to construction. It is no more than an aid to seek and designate the references of expressions in a constitution. If you see the new clause (d)- "Constituent Assembly should read legislative assembly of the State". Is this interpretation? Is this exception permissible in a clause of interpretation? In other words, if constituent assembly and legislative assembly by their very nature are different bodies, then it cannot be an interpretation that Constituent Assembly shall read legislative assembly. This is a direct amendment to Art 370(3). And that amendment cannot be achieved by an interpretation provision."

To this, the CJI asked if the same could be done by an adaptation order. He responded–

"An adaptation order can be passed whenever a law prior to the commencement of Constitution which continues as on the date of commencement of Constitution needs to be brought in conformity in the Constitution. CO 273 is a clear order under (3)...The expression "state government" for the purpose of 370, by the very nature of that article, contemplates a validly elected, democratically constituted state government, accountable to an assembly. Sans that, there is a polarity in 370- president on one hand and state government on another hand. That polarity cannot be merged."

Seeking clarification, the CJI asked–

"Are you suggesting that when a proclamation under Article 356 is in operation, there is a fetter on the exercise of power under second proviso of Art 370(1)(d)?"

Subramanium responded in an affirmative and stated that the same was strongly expressed in the architecture of Article 370. He stated that if the whole of Article 370 was a manifestation of constitutional principle of federalism, then it was necessary that both parts of the federal principle must be available for enabling an exercise under 370.

Article 370 Imposes Limitations On Powers Under Article 356

The Chief Justice highlighted that after January 26, 1957, the Indian Constitution did not speak of the Constitution of J&K at all. He said–

"Post 1957, neither the legislative assembly of J&K nor the political establishment in the rest of the country represented by parliament, nobody ever thought of amending Indian Constitution to expressly bring the J&K constitution within the fold of Indian Constitution."

He asked further how the Constitution of J&K could have imposed limitations on the executive power of the Union and the legislative power of an organ of the Union namely parliament. To this, Subramanium stated that this was asymmetry he was earlier speaking of. He added–

"In the 1954 order, subject of state list was omitted in its application. So what we've done is with the help of 1954 order, we have imposed fetters on the Constitution. In the seventh schedule, the state list was completely omitted.The orders and the J&K constitution speak to each other. There are some carve outs for J&K but those are volitionally done."

Expanding upon his query, the CJI asked what was restraining the Union from modifying the terms of the said carve out? He added–

"Suppose 356 is in operation. All executive powers of state are assumed by union. Who issues an ordinance in the state? Can the president not issue an ordinance?"

Subramanium responded in a negative and stated that Article 370 contemplated limitations on the powers of Article 356. He said–

"These are express limitations. These limitations cannot be obviated by taking recourse to 356. 370 is a power with a duty. The obligation under 370 is to act consistent with the very purpose of 370. The purpose of 370 was to enable another assembly to take a decision and both of them work together."

Highlighting the importance of bilateralism, he said –

"Sans the state, sans legislature, it wouldn't be consistent with constitutional principles to interpret 370 unilaterally. Federalism and supremacy of constitution are conjoint principles. Both of them are injected necessarily in 370. J&K constitution can be repealed by that legislature. But it cannot be abrogated by us. The constitution is a legal document. It has constituted the legislature. It is entitled to be noticed. That constitution cannot be wished away unless power is located somewhere. CO 273 - it abrogates a constitution. That cannot be done."

The CJI also enquired if it would be correct to say that IoA ceased to exist as an independent document once J&K became the part of India. He stated that the reason he asked this was to figure out if it could possibly be that the fetter on power of parliament under clause (d) of Article 370(1) was also a limited transitional provision which would operate so long as the IoA held the field as an independent document. Subramanium responded to this query by stating that the fetter on Parliament was by virtue of Article 370 and had no direct relation to IoA. 

He concluded his arguments by stating–

"The two principles I invoke are federalism, with its subsets autonomy and consent; and supremacy of the Constitution. The purposes of 356 and 370 are not coincidental. They do not coincide. The exercise of power under 356 cannot clothe you with legal authority under Article 370."

After Subramanium concluded his arguments, the bench heard for a brief time the submissions of Senior Advocate Zaffar Ahmad Shah on behalf of the J&K High Court Bar Association. The arguments will continue tomorrow.

Read The Written Submissions by Senior Advocate Gopal Subramanium Here