Abrogation of Article 370 | Day 15: “If 370 is beyond the reach of amendment, is it above basic structure?” Court asks Petitioners

Giri: Dr. Ambedkar intended India to have a ‘unitary’ form of federalism

Continuing his arguments from last week, Giri read out Dr. Ambedkar’s opening and closing Constituent Assembly speeches where he discussed the two forms of federalism—unitary and dual. According to Ambedkar, Giri said, India did not adopt dual federalism where each state has its own constitution and the citizens have dual citizenship. 

“The proposed Indian Constitution is a dual polity with a single citizenship. There is only one citizenship for the whole of India. It is Indian citizenship. There is no State citizenship,” Giri read to advance the view that Ambedkar always intended for India to be a unitary state with certain features of federalism. 

Article 370, Giri contended, established a different relationship of the Union with J&K—the President needed the consent of the J&K government to make laws for the State. This meant that J&K was on a “different plane” than the other states. The abrogation, Giri suggested, removed this difference and therefore upheld Dr. Ambedkar’s vision for India. 

Chief Justice D.Y. Chandrachud resisted this argument. If this view was accepted, he said, we would be challenging the inclusion of Article 370 in the original Constitution. When Giri attempted to support his claim by telling the Bench that a batch of petitions had, in fact, challenged the original provision, the Chief, sticking to his stance, said “You can’t invite us to hold in your favour on an unstateable proposition.”

ASG Nataraj: The doctrine of federalism does not apply to Article 370

Nataraj argued that the “doctrine of federalism, in the stricter sense, has no application as far as 370 is concerned.” His arguments were a response to the petitioners’ arguments that the abrogation of Article 370 violated the federal structure of the Constitution. 

He anchored his argument on the words in Article 368 (which deals with amendment) which states that certain amendments “shall also require to be ratified by the Legislatures of not less than one-half of the States…” These words, Nataraj said, incorporated the doctrine of “collective consent” and upheld federalism. In a sense, he said, “it is a veto power vested with the majority of the states.” 

In contrast, Nataraj argued that Article 370(3) only required the recommendation of J&K’s Constituent Assembly. Therefore, the yardstick in both provisions was different and using the same language to understand both would render “either of them redundant.” (It must be pointed out here that Article 370 was abrogated via two Presidential Orders, and not via the Article 368 route.) 

Justice Khanna summarised Nataraj’s arguments stating that it could be said that Article 370 violated federalism as federalism was preserved under Article 368. Agreeing with Justice Khanna, Nataraj then declared that the President’s power under Article 370 was a plenary power which had the “flavour” of constituent, legislative and executive powers. The Bench, however, pointed out that Senior Advocate Rakesh Dwivedi had argued that the President’s power under Article 370 was a constituent power. Nataraj maintained that it was an “extraordinary power” which must not be limited. Solicitor General Tushar Mehta chimed in to state that this differentiation of what kind of power it was was unnecessary as it was a “sui generis” power. 

Jethmalani: J&K’s legal sovereignty vests completely with the Union of India

Jethmalani appeared for some members of the Gujjar Bakerwal community. He claimed that they constituted over 73 percent of the Scheduled Tribe population in J&K and were completely in support of the abrogation as it gave them protection and reservation for the first time. 

He asserted that J&K’s political sovereignty was completely vested with India. The proof of this, he claimed, lay in the preambles of both constitutions. While the Indian preamble used the word “sovereign”, J&K’s preamble used the words “in pursuance of accession of this State to India which took place on the twenty-sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof.”

The state’s legal sovereignty also vested with the Union according to Jethmalani as after the J&K Constituent Assembly was dissolved, Article 370(3) ceased to exist and was subject to the President’s power. 

Addressing the petitioners’ contention that the Union wrongfully used C.O. 272 to change Article 367 (by which it replaced “Constituent Assembly” with “Legislative Assembly”) to abrogate Article 370, Jethmalani argued that it was permissible because historically, these two provisions were used “synonymously.” To support his contention, he gave the example of C.O. 38 (1950) and C.O. 48 (1954). 

The Bench, however, pointed out that J&K did not have a Legislative Assembly then, and that is why the Constituent Assembly assumed that role. However, this changed after the J&K Constitution was adopted and the state got a Legislative Assembly. Jethmalani responded that if there was a constitutional authority that could take the place of J&K’s Constituent Assembly, it was the Legislative Assembly. 

The procedure to use Article 367 (interpretation clauses) as a tool to modify Article 370, he said, was recognised by the Supreme Court in Mohd. Maqbool Damnoo v State Of Jammu And Kashmir (1972) when it upheld the modification of Article 367 to replace the words “Sadar-i-Riyasaat” with “Governor.” 

Kumar: Abrogation of Article 370 removed the “anomalies” in J&K

Gurukrishna Kumar appeared on behalf of a “set of people” who represent displaced persons residing in Pakistan-Occupied Kashmir (POK). He argued that Section 6 of J&K’s Constitution and Article 35A of the Indian Constitution created “anomalies” that gave special rights only to the “permanent residents” of J&K, and not the displaced persons residing in POK. The Presidential Orders (C.O. 272 and 273) rectified these “anomalies.” 

To illustrate his point, he submitted that approximately 23,000 to 24,000 people had received their domicile certificates since the abrogation. Kapil Sibal interjected at his point, pointing out that Article 35A was not being challenged in this batch of petitions. Kumar however, said that he was referring to this article as an “anomaly” and contended that restoring Article 370 would “resurrect these [anomalies] and Article 35A.”

Kumar then shifted his attention to two other aspects. First, contrary to what was contended by the petitioners, he argued that J&K had a representative government as it followed the “Puducherry model.” Second, the petitioners cannot make a “derivative argument” by extending an “asymmetric model” of federalism to equate Article 370, a temporary provision, to provisions in the Constitution that provide protections to other states.

Fifteen counsels appear for various intervenors

In what can only be described as a chaotic turn of events, 15 counsels appeared before the lunch break to argue for various intervenors in the case. Most notably, Advocate Kanu Agarwal argued that J&K’s Constituent Assembly did not have any “original constituent powers” as the erstwhile ruler of J&K had recognised the supremacy of the Indian Constitution in his proclamation. He had acceded all sovereignty to India when he signed the Instrument of Accession and therefore, J&K’s Constituent Assembly and the Constitution it created were based on “derivative powers” which were subordinate to the Indian Constitution. 

Advocate Archana Pathak Dave highlighted that the women of J&K had regained the rights to acquire property and other benefits even if they married someone outside the state after the abrogation of Article 370. 

Other intervenors reiterated that Article 370 was a temporary provision and its abrogation benefited the people of J&K vastly.

Sibal: J&K’s history shows that it was a special region requiring special status

Sibal opened the rejoinder today, by tackling the Union’s argument that the status awarded to J&K was not special in any way. The Solicitor General had argued that several princely states across India had acceded to India using an Instrument of Accession, and had their own constitutions, making J&K similar to these other states. 

Sibal contended that the historical context in which the Instrument of Accession was signed was distinct to the region. Many princely states had signed the IoAs and were keen on merging with India because they did not have “administrative units” such as local self-government. All these states, including Hyderabad, Junagarh,and Travancore had signed merger agreements. J&K was among those states that did not. However, because of the Pakistani infiltrations at the time, the ruler there was compelled to arrive at a decision. Sibal explained that, unlike some northwest provinces, J&K could not conduct a referendum to factor in the people’s voices on where they wanted to belong.

CJI and Sibal have an exchange on the “silences” in Article 370

Sibal then addressed the respondents’ argument that the President had “absolute discretion” to “pull the plug” on Article 370 after the state’s Constituent Assembly was dissolved in 1957. 

The proviso to Article 370(3), he said, has two key requirements—that the recommendation of the Constituent Assembly is necessary and that it comes before the President’s decision to abrogate. “Timing is set [that] before the President issues notification, the recommendation has to come,” Sibal said, “You cannot reverse that process.”

CJI Chandrachud pointed out that there were “significant silences” in the provision. What would happen when the “slow integration” envisaged for the state was complete? The “silences”, he indicated, lead to the conclusion that the framers of both the Indian and J&K constitutions framers left it to the “wise acts of statesmanship.” 

Sibal responded that the Court could either “interpret 370 with text and context or we find something which is not there.” He argued in favour of interpreting the Constitution and “not find(ing) the silence in the Constitution to interpret something that is expressed.” Reading of the text and context, he said, showed that the recommendation of the Constituent Assembly “shall be necessary” as per Article 370(3). The agreement between J&K and India was a political compromise. Since the “process is political,” he submitted, “the solution has to be political” too. 

CJI: If Article 370 is beyond the reach of amendment, is it above basic structure?

 At this point, Justice S.K. Kaul stated that the case boils down to how one understands Article 370(3). After the dissolution of the J&K Constituent Assembly, did Article 370(3) stand frozen and unchanging beyond the reach of anyone, or did it become open to action by the President? Sibal stated that only Article 370(3) stood frozen and that the rest of the provision was open—the Union could keep issuing Presidential Orders to integrate J&K further.

The CJI stated that if the Bench were to accept this view, it would be holding that “there is in our Constitution a provision to which even the amending power available to the rest of the Constitution is unavailable.” If Article 370 had to be amended, the Union would have to use Article 368. But to make Article 368 applicable, the Union would have to follow the process of “concurrence” laid down in Article 370 itself. The only restriction to amending the Constitution is the basic feature doctrine, he said. Now, the Court would be adding another restriction, Article 370, which would be higher than the basic structure, because any amendment would bring it back to Article 370.

“This is getting even more interesting,” Sibal responded. Then he noted that the Court was only testing the process adopted by the Union in 2019, through Article 370(3). The Court must not be swayed by sentiments and emotions, as we are dealing with the Constitution, he said. The CJI asked: “If there has to only be a political solution, is there no solution to Kashmir within the Constitution?” Sibal insisted that the solution needed to be found, but not by this Court and not in this case. This is not a case about power, he said, but one of process. 

Sibal: Governor had no right to dissolve the Assembly

Sibal then argued that the standard process, as recognised by Section 53 of the J&K Constitution, was that the Governor required the aid and advice of the Council of Ministers to dissolve the Assembly. Only Sections 36, 38 and 92 were exceptions to this rule. Sibal said that there are Constitution Bench judgments that show that the Governor could not, under the circumstances, dissolve the Assembly. 

He stated that the correct process was to declare President’s Rule after six months of the Assembly being in suspended animation. Elections must be conducted at some point after. If the government cannot be formed despite this, the assembly may be dissolved. To “uphold democracy and representation,” it was crucial that the assembly is not dissolved before President’s Rule is declared, he argued. 

Sibal will continue his rejoinder tomorrow, that is 4 September 2023.