Supreme Court Hears Challenge to Abrogation of Article 370 | Day 5

Transcript: 

Hello and welcome to SCO Daily. Day 5 of hearings in the challenge to Abrogation of Article 370 completed today. The Court spent most of its time listening to arguments from Senior Advocate Zaffar Ahmad Shah, who is from J&K, and appeared for the Bar Association of Jammu and Kashmir. He contended that the autonomy of J&K was decimated by abrogating Art. 370.

Shah argued that there was never a complete merger between J&K and India. With special status which limited Union interference, J&K retained a significant part of its autonomy. When the Presidential Orders of 2019 abrogated Article 370, this autonomy, which was at the heart of the relationship between J&K and India, was destroyed.

Justices Khanna and Chief Justice D.Y. Chandrachud quickly jumped in and corrected Shah’s claims about India and J&K never having merged as one. They reminded him that the State’s “integration to India was complete”, and “the surrender of sovereignty to India was absolute”. Article 370 simply imposed fetters on the exercise of the Union’s powers on the State, like other states in India which had a distinct law making powers under List II. This did not mean that India’s autonomy or its sovereignty was not absolute. Similarly, the limitations on the Union’s law-making power in J&K, did not mean that J&K was not integrated or ‘merged’ with India.

Shah explained that J&K is distinct from these other states. In other States, the Union could make Constitutional provisions applicable. But in J&K the concurrence of the State government is needed for the application of a Constitutional provision. This is because J&K has a peculiar, special position which was rooted in its autonomy. Taking the Court through various provisions of the Constitution of India that were made applicable to J&K with exceptions and modifications, Shah argued that J&K’s power to accept provisions with such modifications was an exercise of its autonomy.

He then moved to the Governor whose concurrence was sought when passing Presidential Order C.O. 272. Article 31 of the J&K Constitution concerns the oath to be taken by the Governor. It reads that the Governor will “preserve, protect and defend the Constitution and the law” and binds the governor to devote himself “to the service and well being of the people of the State”. Shah argued that by communicating concurrence to the passing of Presidential Order C.O. 272, the Governor breached this oath and was liable to be impeached.

In the last 20 minutes of the day’s hearings the Court also heard arguments from Sr. Adv. Rajeev Dhavan. His main contention was that the special status awarded to J&K reflected diversity, a key feature of the constitution of India. “The Constitution is replete with promises made to the people” he said, with diversity being one among them. In the spirit of this promise, various states with diverse circumstances were taken into account with diverse legal frameworks governing them. So, all actions of the Parliament and any interpretation of the constitution must keep this promise of diversity in mind. Article 370, Dhavan argued, was a manifestation of diversity. This is why the President of India could make laws for the State only after ‘consulting’ or ‘concurring’ with the state government, as a way of consulting the diverse needs of the people.

He will continue his arguments next week on August 16, 2023. Visit SCObserver.in for a detailed report on the day’s hearings. Make sure to follow us on twitter where we give contextualised live updates. You can also subscribe to our daily whatsapp updates. We promise not to spam you. We’ll just start your day off, with the most important updates of the day, at 9AM Sharp.

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