Article 370 Can't Be Abrogated As J&K Constituent Assembly Never Recommended It Before Dissolution : Kapil Sibal Tells Supreme Court [Day 1]

Today, the Supreme Court commenced hearing the batch of petitions challenging the dilution of Article 370 of the Constitution of India which stripped the erstwhile state of Jammu and Kashmir (J&K) of its special status. The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant is hearing the matter. 

In today's proceedings, Senior Advocate Kapil Sibal argued that Article 370 was no longer a 'temporary provision' and that it had assumed permanence post the dissolution of the Constituent Assembly of J&K. The bench enquired why then would Article 370 be placed as a temporary provision under Part XXI of the Constitution, to which Sibal responded that the Constitution makers foresaw the formation of the Constituent Assembly of J&K, and it was understood that this Assembly would have the authority to determine the future course of Article 370. Thus, in the event of the dissolution of the Constituent Assembly, whose recommendation was necessary to abrogate Article 370, the provision could not be revoked.

This article provides for all the arguments raised by Senior Advocate Sibal today. 

• All Indian laws were applicable to J&K

Senior Advocate Sibal commenced his arguments by emphasising upon the significance of the case, describing it as "historic in many ways." Highlighting the uniqueness of J&K's relationship with India, Sibal questioned whether such a relationship could be discarded abruptly. Clarifying that the integration of J&K into India was unquestionable, Sibal however said that the Constitution envisaged a special relationship with the J&K. 

He stated that the matter would consist of the following four – i) the Constitution of India; ii) the Constitution of India as applicable in J&K; iii) the Constitution of J&K and; iv) Article 370.

"The reason why I say that the Constitution of India was applicable to J&K is that over time, there were several orders issued which were incorporated in Constitution. The result was that most powers were in tandem with the Constitution of India. All laws were applicable. Therefore, there was no reason to take it away."

• Indian Parliament cannot convert itself into the Constituent Assembly

Sibal then argued upon the requirement of concurrence with the Constituent Assembly of J&K for the abrogation of Article 370. He asserted that understanding the essence of a "constituent assembly" was pivotal in determining the constitutional future of the region. Defining a constituent assembly, Sibal emphasized that it was a political body, made to draft a Constitution, which was also a political document rather than a legal one. Once in place, all institutions within the framework of the Constitution were bound by its provisions.

He then asserted that the Indian parliament, under the current constitutional framework, could not convert itself into a Constituent Assembly. He said–

"Today, the Indian parliament cannot say by a resolution that we are the Constituent Assembly. As a matter of law they cannot because they're now confined by the provisions of the Constitution. They must adhere to the basic features of the Constitution. They can't suspend, except in emergencies or external invasions, the fundamental rights of people. That's also limited by provisions of Constitution. The executive can't do things contrary to the law. And the judiciary declares the law. But no parliament can convert itself into a Constituent Assembly."

• Special Status of J&K and the History of IoA

Continuing his arguments, Sibal provided a historical context surrounding the Instrument of Accession (IoA) and the constitutional relationship between the State of J&K and the Indian government. He began by recounting the circumstances that led to the Maharaja of J&K's decision to sign the Instrument of Accession in October 1947. Facing armed invasion, political turmoil, and a lack of support from India in the form of a standstill agreement, the ruler realized that he could not secure his people's safety without acceding to India. He said–

"August 15 was independence. He didn't accede. All other Maharajas did but he never wanted to. It's only in October this happened."

Sibal then emphasized the unique nature of the IoA, which granted the State of J&K residuary powers, unlike other Indian states, making it a "truly federal marriage".

Reading from Maharaja Hari Singh's proclamation of March 5, 1948, Sibal highlighted that no revised IoA was signed by the ruler from December 1947 to September 1949, indicating the continuation of the State's separate status. The senior advocate referred to the Constitution (Application to Jammu and Kashmir) Order of January 26, 1950, which recognized that the provisions of the Indian Constitution would not apply to the State unless made applicable through a presidential order agreed to by the J&K government. This reaffirmed the special status of the State and its separate constitutional structure. He added–

"It was a collaborative relationship. There was a constant dialogue going on, which is why most of the laws remained applicable. In a sense, they were incorporated separately in the Constitution of India in application to J&K. The only thing was that there was a unique structure in place- a constitutional structure. That structure was suddenly done away with...There was no consultation. The governor of the State and parliament decided to do this one fine morning and tossed it out."

• Article 370 Assumed Permanence Post Dissolution of Constituent Assembly

In an interesting turn of arguments, Senior Advocate Sibal elaborated upon the meaning of Article 370 being a "temporary provision". He stated that Article 370 was called a temporary provision only because when the Constitution of India came into force, the Constituent Assembly of Jammu and Kashmir did not exist. However, once the Constituent Assembly came into being, created the Constitution for the State, and then ceased to exist after its tenure from 1951 to 1957, the Article became a permanent feature of the Constitution. This was because, as per proviso to Article 370(3), the recommendation of the Constituent Assembly was necessary to abrogate Article 370, and without the Assembly, the provision could not be revoked.

However, the CJI raised questions about the continuity of Article 370 after the Constituent Assembly's term. CJI Chandrachud pointed out that Article 370(3) contained a non-obstante clause that seemed to override the entire Article 370, including its special provisions. He asked–

"So therefore, with the end of the 7 years, the very institution of constituent assembly lapses. Then what happens to the proviso?...What happens when the constituent assembly comes to an end? No constituent assembly can have an indefinite life...the proviso to clause (3) refers to the recommendation of Constituent Assembly of the State...the only safeguard is that before President abrogates, recommendation of Constituent Assembly is required. What happens when Constituent Assembly ceases to exist? If the proviso ceases to operate, by virtue of the fact that the tenure of Constituent Assembly has ceased to exist, surely the substantive part of (3) still continues?"

Sibal contended that this non-obstante clause was only valid during the existence of the Constituent Assembly. He said–

"What was the reason to mention Constituent Assembly in Article 370 when it was not even in place? They could have said Government of J&K. Why did they include the term constituent assembly in Article 370(3)?"

Justice Surya Kant further questioned why Article 370 was included under the Chapter of 'temporary and transitory provisions' of the Constitution.  Sibal reiterated that the temporary nature of Article 370 was tied to the existence of the Constituent Assembly, which had a role in its abrogation.

However, CJI DY Chandrachud, seemingly unconvinced, said–

"Acceptance of sovereignty of the dominion of India was complete. They accepted the sovereignty for all intents and purposes. That acceptance was complete but they reserved some rights over certain legislative subjects. So the accession was complete. Consistent with that, they said that in clause (3), the President would have the right to abrogate 370."

However, Sibal asserted that the same was to be done solely on the recommendation of the Constituent Assembly of J&K, which ceased to exist in 1957.

Would it not mean that Article 370 can never be abrogated, asked Justice Kant,

Sibal replied–

"Yes! That's the whole point. That's our case. That is why I said that formation of Constituent Assembly is a political exercise...You cannot jettison the people of J&K and decide. Then what is the difference between this and the act of crown or annexation of Junagadh or Hyderabad? If you have agreed to a process which two sovereign authorities have accepted then you must follow it."

At this juncture, Justice SK Kaul asked–

"So if an elected assembly wants to abrogate article 370 then also it is not possible?"

Sibal responded–

"Not possible!"

• Why did Constitution Makers put Article 370 as 'temporary' provision under Part XXI?: Bench mulls 

Following Sibal's submissions on the assumed permanence of Article 370, the CJI asked–

"But that is only on the basis that 370 becomes permanent after Constituent Assembly ceases to exist. If the hypothesis is not accepted then the only way is to assert that a pre-independence agreement has to be enforced. Can parliament of the state have limited powers in the state?"

The court then went through the structure and framing of Article 370(1). In doing so, the CJI orally remarked–

"In other words, the whole area of concurrence and consultation is confined to the entries of the Union and the Concurrent list. That's clear from the scheme. The President is given an untrammelled power to specify which are the provisions of the Constitution which apply to J&K. That is conditioned to the first and the second proviso. These provisos don't refer to substantive provisions of Constitution at all. They only refer to matters governed in Union and concurrent list."

However, Sibal asserted that as per Article 370, the ordinary law making power of the Indian Parliament shall be limited to those matters in the Union list and the Concurrent list which in consultation with the government of the State are declared by the President to correspond to matters in the IoA. He said–

"So the parliament can only make laws in matters present in the list and that also in consultation. That's the first limb of the argument - the restriction on law making power."

The CJI then questioned whether the power under Article 370(3) would continue indefinitely if the Constituent Assembly no longer existed. Sibal maintained that Article 370 was labeled temporary because the ultimate authority to abrogate it was intended to rest with the Constituent Assembly of J&K. He pointed to the clause explicitly stating that the "recommendation of the Constituent Assembly will be a condition precedent" for any such decision.

CJI DY Chandrachud explained that Part XXI of the Constitution had three expressions- temporary, transitional, and special. He stated that the term "transitional" was not used in any headnote or marginal note. However, the terms "temporary" and "special" were used in marginal notes. He added–

"(Article) 370 specifically says 'temporary'. So can we then say that power under clause (3) goes once Constituent Assembly comes to an end? Convert this to a permanent provision even though it was not intended to be? Why did the constitution put it in Part XXI?"

To this, Sibal highlighted that the Constitution makers foresaw the formation of the Constituent Assembly, and it was understood that this Assembly would have the authority to determine the future course of Article 370. Any abrogation was intended to be a result of a collaborative process, not a unilateral act by the Indian parliament.

• Residuary Powers lie with State of J&K

In his arguments, Sibal also contended that all residuary powers, as per the IoA itself, lied with the State government of J&K. Upon a query from the bench in this context, Sibal contended–

"In Kashmir it (residuary power) was there from the beginning. It's in the IoA. Residuary power was with the state legislature and state government throughout - that was the condition on which the accession took place. I'll demonstrate that."

• Conversion of State into Union Territory Impermissible

Addressing the bench, Sibal then pointed out that while Article 3 of the Indian Constitution grants the power to change the boundaries of states and even create smaller states through bifurcation, it had never before been used to convert an entire state into a Union Territory. Justice Surya Kaul countered Sibal's argument, noting that carving out a Union Territory from a state was allowed. However, Sibal emphasized that converting an entire state into a Union Territory was a unique and unheard-of action in the country's history.

Sibal contended that such a radical change effectively moved the region away from representative democracy and placed it under the direct rule of the central government. He said–

"So you move away from representative democracy, convert it into a Union Territory under your direct rule, and 5 years have passed!"

He also raised concerns about the absence of state elections despite parliamentary elections being conducted just three months after the bifurcation. He said–

"Kindly note one thing- in May 2019, there were parliamentary elections in the State of J&K. Three months after this! This happened in 6th August and in May - parliamentary elections. So you can hold parliamentary elections but you will not hold state elections?"

With this, the bench concluded the hearings for the day.