Article 370 Day 5 | Dwivedi Argues Two Clashing Judgements on Art. 370 Requires Clarification by Larger Bench

December 12th 2019

Various parties have challenged the constitutionality of the presidential orders that did away with the State of Jammu and Kashmir’s special constitutional status by amending Article 370 of the Constitution of India. The Supreme Court has clubbed these cases with the challenge to the constitutionality of the State of Jammu and Kashmir Reorganisation Act, 2019 (hereafter ‘Reorganisation Act’), which bi-furcated the State into two Union Territories.

Justices N.V. Ramana, Sanjay Kishan Kaul, R. Subhash Reddy, Bhushan Ramkrishna Gavai and Surya Kant began hearing final arguments on Tuesday, December 10th.

In the previous hearing, the Bench heard Sr. Adv. Raju Ramachandran appearing for Shah Faesal argue that both the abrogation of Article 370 and the Reorganisation Act are unconstitutional. On Article 370, he argued that changes brought about during President’s Rule cannot be permanent. Further, he asserted that the Union Parliament lacked the constituent power to amend Article 370. Turning to the bi-furcation, he argued that the Reorganisation Act violated Article 3 of the Constitution of India.

Today, Sr. Adv. Ramachandran took the Court through case-law to substantiate his argument that Article 370 was unconstitutionally amended. In addition, it heard Sr. Adv. Dinesh Dwivedi appearing for economist Prem Shankar Jha argue in favor of a referral to a seven-judge Bench.

Sr. Adv. Ramachandran Continues Arguments

Sr. Adv. Raju Ramachandran first re-iterated his argument that the President lacked the power to transfer the constituent power to amend Article 370 from the Constituent Assembly of J&K to the Legislative Assembly of J&K. He began by defining constituent power. Referring to Indira Nehru Gandhi (1975), he distinguished constituent power from mere legislative power. He said that constituent power was a ‘unlimited law-making power’ from which a Constitution flows. Relying on this definition, he established that the President of India does not enjoy constituent power and therefore did not have the authority to bestow a legislative body with constituent power. Furthermore, he stressed that the J&K Legislative Assembly never had constituent power by citing Section 147 of the J&K Constitution. Section 147 prohibits the J&K Legislative Assembly from amending the Indian Constitution. He concluded that no legitimate recommendation was sent to the President to empower him to cease the opearation of Article 370 under Article 370(3).

Sr. Adv. Ramachandran countered the argument which relied on Mohd. Maqbool Damnoo (1972) to justify the President transferring power from the J&K Constituent Assembly to the Legislative Assembly. The President transferred this constituent power by amending Article 367 of the Indian Constitution. In particular, the President inserted clause 4 to Article 367 to change ‘Constituent Assembly’ to mean ‘Legislative Assembly’ in Article 370(3). Similarly, in 1965, Article 367 was amended to change ‘Sadar-i-Rasayat’ to ‘Governor in Article 370. The Supreme Court in Mohd. Maqbool Damnoo held this 1965 amendment was constitutional. While agreeing with the reasoning in Damnoo, Sr. Adv. Ramachandran argued that it did not validate the 2019 amendment of Article 367. He argue that the 2019 amendment is unconstitutional on two grounds. First, the 1965 amendment was paired with an amendment to the J&K Constitution, which the 2019 amendment was not. Second, the Sadar-i-Rasayat and Governor enjoy the same executive powers, whereas the Constituent Assembly and Legislative Assembly do not. In particular, he stressed that constituent power was unique to the Constituent Assembly. He concluded that Damnoo cannot be used to justify the presidential amendment to Article 367.

Next, he read excerpts of Prem Nath Kaul (1959) to argue that the amendment to Article 370 was unconstitutional. He argued that Article 370 had been amended without the consent of the people of J&K. Relying on Prem Nath Kaul, he argued that the framers of the Indian Constitution intended for the people of J&K to ratify every application of the Indian Constitution to the J&K via the J&K Constituent Assembly. He concluded that the Union had acted contrary to the framers of the Constitution by amending Article 370 without receiving a recommendation by the J&K Constituent Assembly.

Referral to a Larger Bench

The Bench also heard Sr. Adv. Dinesh Dwivedi appearing for the economist Prem Shankar Jha. Sr. Adv. Dwivedi argued for a referral to a larger seven judge Bench. He asserted that two co-equal (five judge) Benches had delivered contradictory opinions on Article 370, referring to Prem Nath Kaul (1958) and Sampat Prakash (1968). He said that while Kaul had held that Article 370 was applicable only until the J&K Constitution was enacted, Prakash had concluded that Article 370 was permanent in nature.

Sr. Adv. Rajeev Dhavan concurred with Sr. Adv. Dwivedi on the question of referral.

Hearings will continue after the Christmas and New Year’s Eve break on 21 January 2019.

(This post partly relies on reporting by The Hindu)