Abrogation of Article 370 | Day 7: Reorganisation of J&K into Union Territories is contrary to federalism, argue Petitioners

Dave: Reorganisation and abrogation beyond the scope of the Constitution

Continuing the arguments made on previous hearing days,  Dave contended that President’s Rule cannot be used to reorganise states under Article 3. He relied on In Re: The Berubari Union (1960), where the Supreme Court had held that “the treaty-making power would have to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it.”

Dave argued that the treaty (the agreement between J&K and India) should be subject to the limitations agreed upon by the Maharaja and India. Using President’s Rule to do away with the stipulations under Article 3, Dave said, was a mockery of constitutional safeguards.

The limitation agreed upon was that the J&K Constituent Assembly would be the appropriate authority to recommend abrogation of Article 370. Dave submitted that when that assembly dissolved in 1957 without repealing Article 370, any opportunity to remove the provision was lost—both to the Union of India and to J&K. The work of the Constituent Assembly was a one time exercise that cannot be repeated over and over again. 

Dave then asserted that Articles 370(2) and 370(3) had already served their purpose—the Constituent Assembly of J&K had created a legal document for its state, and had chosen to retain Article 370. He stated that the framers of the Indian Constitution called Article 370 a ‘temporary provision’ as they were referring to the temporary possibility that the Constituent Assembly may remove it. 

At this point, Chief Justice Chandrachud interjected. ”If your argument is right,” he asked, “where is the power to alter the Constitution at all?” CJI Chandrachud’s concern here was that if Article 370, because of clauses (2) and (3), is considered to have achieved its life, then no amendments or alterations can be made to the Constitution of India with respect to J&K. Dave attempted to explain that not all provisions of Article 370 were lost. Clause 1 of the Article, which allows Parliament to make laws with the concurrence or consultation of the state, remained. 

CJI Chandrachud stated that the Constitution cannot be read inconsistently. Without a constitutional amendment to remove the inoperative clauses, the Court must interpret either all clauses to have survived or for all clauses to have perished. Faced with this line of reasoning, Dave said that all clauses may perish. An incredulous Chief Justice exclaimed, “We’re talking about a practice of over 64 years!” The consequence of interpreting Article 370 as having served its purpose in 1957 would be to contradict the constitutional practice of introducing Presidential Orders for J&K. It would also contradict the agreement between J&K and India. 

Trying to assuage the Bench, Dave explained that his only concern was with “process.” Had Article 370 been removed through a constitutional amendment, he suggested, it may have been valid. 

Dave: Bharatiya Janata Party’s 2019 Election Manifesto Made Unconstitutional Promises

Towards the end of his submission, Dave pulled out a fresh argument. He  drew the Court’s attention to the BJP’s 2019 election manifesto. The party’s promise of the abrogation of Article 370 was contrary  to constitutional values, he argued. He also drew attention to the fact that the Supreme Court had also directed the Election Commission to frame guidelines to ensure that manifestos were constitutional. 

Naphade: No interpretation of the Indian Constitution can contradict the J&K Constitution 

In the second half of the day’s hearings, Naphade argued any interpretation of Article 370(1)(d) had to be made keeping the core of the J&K Constitution intact. This included Part 2 which dealt with the State’s relationship with India and the territory of J&K; and Parts 5 and Part 6 which set out the powers of the state’s executive and legislature. He argued that there is no express provision in the Indian Constitution which awards the power to the Union to override the J&K Constitution. 

Using  President’s Rule to override the state’s autonomy in 2018, Naphade said, was unconstitutional and betrayed the Union’s ulterior motive. President’s rule is invoked when there is a breakdown of Constitutional machinery. Any action taken in this temporary period must be to ensure that the State as a constitutional entity survives. Splitting J&K and reducing it to a Union Territory was not in line with this goal. 

Naphade: Reorganisation of J&K unconstitutional, state left with no representation

The bifurcation of J&K into the Union Territories of J&K and Ladakh violated the idea of a “Union of States” envisaged in Article 1, Naphade contended. He argued that there was a specific reason that Article 3 did not provide for the abolition of states. The existence of a state was part of the basic structure of the Constitution. J&K could not be considered an exception to this idea, and be stripped of its autonomy and identity as a state. 

Now, four years after the reorganisation, the Union Territories of J&K and Ladakh are starved for representation in the Indian democratic set up. The practical consequences were manyfold: first, Ladakh has no representatives in the Rajya Sabha; second, J&K does not have proportional representation in the Lok Sabha; third, the territories cannot participate in presidential elections; fourth, they can’t send ministers to Services Tax (GST) Council; fifth, the lack of a governor means that the territories will not be consulted for the Appointment of High Court judges. He stated that by a “very small act”, that is, the Presidential Order CO 272, the whole constitutional fabric of J&K was restructured.

Dwivedi: Reorganisation of J&K as a Union Territory breaches the principle of “Dual Polity”

In his brief submission at the end of the day, Dinesh Dwivedi claimed that though Union Territories were part of India, they were not part of its federal structure. A federal structure, Dwivedi argued, establishes a system of ‘dual polity’ where the local government is responsible for local issues and the Union government for national issues. However, this was not the case for Union Territories as they are governed by the Union. So, states and Union Territories had a different constitutional status. 

In this context, Dwivedi submitted that J&K was undoubtedly a part of India’s federal structure as it had “elevated levels” of autonomy. By reducing the state to two Union Territories, the Union breached the federal structure and ‘dual polity.’ It took the rights conferred to the people of the state and converted it into a ‘unitary polity’. 

Dwivedi: Accession does not amount to surrender of sovereignty

On Day 5 of the hearings, the Chief had remarked that after the Instrument of Accession was signed by the Maharaja, the transfer of J&K’s sovereignty to India was “absolute.” 

Dwivedi responded to this today. He argued that unlike other states, J&K had not signed a “merger” or “standstill” agreement with India to transfer internal governance of the state to the Indian Union. Therefore, its accession did not transfer sovereignty and autonomy to India. The residuary powers were retained with the state and India had no right to “breach this sovereignty”. 

Dwivedi and other counsels for the petitioners will conclude their arguments on Tuesday, August 22, 2023.