Article 370 Day 3 | 5-Judge Bench Hears Arguments on Illegality of Abrogation and Bifurcation of States

December 10th 2019

A five-judge Constitution Bench led by Justice Ramana began to hear final arguments in the challenge to the constitutionality of the Union’s abrogation of Article 370 of the Constitution of India. Article 370 had given the former State of Jammu and Kashmir (J&K) special constitutional status. Alongside this, Justice Ramana’s Bench is also hearing a challenge to the Jammu and Kashmir Reorganisation Act, 2019 (hereafter ‘Reorganisation Act’), which bifurcated the State of J&K into two Union Territories: J&K and Ladakh.

Today, the Court heard Sr. Adv. Raju Ramachandran for the petitioners Shah Faesal, Shela Rashid and others. Sr. Adv. Ramachandran argued that it was unconstitutional for the Union to abrogate Article 370, while the State of J&K was under President’s Rule (under Article 356 of the Constitution of India). Further, he argued that the bifurcation of the State via the Reorganisation Act violates Article 3 of the Constitution of India.

Recall that Article 370 was abrogated via two presidential orders (CO 272 and CO 273) and statutory resolution passed by Parliament. For a more in-depth background, read our ‘Case Description‘.

Request for live-streaming

Before arguments began, advocate-petitioner M.L. Sharma requested the Court to live-stream the proceedings.

President’s Rule is temporary

One of Sr. Adv. Raju Ramachandran’s primary arguments was that changes brought under President’s Rule (Article 356) must be reversible after President’s Rule ceases. In particular, he argued that legislation made by Parliament under Article 357 that substitutes State legislation, must be reversible after the proclamation under Article 356 ceases to operate. He referred to Article 357(2), which states that the State legislature may ‘alter or repeal or amend’ any legislation enacted by Parliament during the operation of President’s Rule.

Consultation v concurrence

Sr. Adv. Raju Ramachandran devoted a significant amount of time to distinguish between ‘consultation’ and ‘concurrence’. In doing so, Sr. Adv. Ramachandran sought to make clear when the Union Parliament had to seek the concurrence of the State Legislature and when it was only required to consult it. He specified that concurrence entails Parliament placing the proposed law before the Constituent Assembly, as established by Article 370(2).

Referring to Article 370(1)(b)(ii), Sr. Adv. Raju Ramachandran stated matters already conceded to the Union in the Instrument Accession, only required consultation with the State Constituent Assembly. The Instrument of Accession integrated the princely state of J&K into the Union of India (and resulted in the introduction of Article 370 to the Constitution of India). On the other hand, he said that concurrence was required for matters not covered by the Instrument of Accession.

He concluded that anytime the Union Parliament seeks to make laws for the J&K State, which require the concurrence of the Constituent Assembly, it must in effect seek the approval of the people of J&K. The Constituent Assembly of J&K represents the will of the State’s people.

Parliament or Constituent Assembly?

Sr. Adv. Raju Ramachandran argued that to cease the operation of Article 370, the President must necessarily seek the recommendation of the Constituent Assembly of J&K. He read out Article 370(3), which explicitly states this. He argued that it was unconstitutional for the President to have sought the Union Parliament’s recommendation instead (recall, the State was under President’s rule). He argued that this was entirely undemocratic. He said that by not seeking the recommendation of the Constituent Assembly, the President was undermining the will of the people of the State.

J&K State Legislature Cannot Amend Constitution of India

The first Presidential Order (CO 272), which set in motion the abrogation of Article 370, interpreted the reference to the ‘Constituent Assembly’ in Article 370(3) to mean ‘Legislative Assembly of the State’. It justified this on the ground that the Constituent Assembly had ceased to exist. This then allowed the Union Parliament to recommend the abrogation of Article 370 via a statutory resolution under Article 370(3), given that the State was under President’s Rule (i.e. the Union Parliament was standing in for the State Legislative Assembly). In today’s hearing, Sr. Adv. Ramachandran argued that the State Legislative Assembly, and hence the Union Parliament, never had the power to amend the Constitution of India.

Referring to Section 147 of the Constitution of Jammu and Kashmir, Sr. Adv. Ramachandran established that the State Legislative Assembly did not enjoy the same powers as the Constituent Assembly. In particular, referring to the second proviso to Section 147, he argued that the Legislative Assembly could not pass bills that amend the Constitution of India. Hence, he said that the Legislative Assembly could not recommend for the cessation of Article 370 of the Constitution of India. He stated that only the Constituent Assembly enjoyed this power, under Article 370(3).

Therefore, he argued that Parliament could not recommend the effective cessation of Article 370. He elaborated that under Articles 356 and 357, Parliament cannot enjoy broader powers than the State Legislative Assembly. He concluded that President Ram Nath Kovind could have only issued CO 273 after receiving the recommendation of the J&K Constituent Assembly (which of course no longer exists).

Unconstitutional Bifurcation

Sr. Adv. Ramachandran then turned to the Reorganisation Act, which divided the State of J&K into two Union Territories. He said that the Act was in violation of the concept of ‘federalism’ (a basic feature of the Constitution of India, see S.R. Bommai).

Turning to Article 3 of the Constitution, he said that a State cannot be completely extinguished by the creation of two Union Territories. He stated that Article 3 only allows Parliament to form a new State, alter the boundaries of a State or alter its name.

Further, he said that the proviso to Article 3 specifies that any parliamentary bill that alters a State as specified above, must be referred by the President to the State Legislature ‘for expressing its views thereon’. The Reorganisation Act was never referred to the J&K Legislative Assembly, as the State was under President’s rule at the time.

He stressed that no State has been reorganised while it was under President’s Rule before, with the exception of the State of Punjab and Haryana. He emphasised that this had been challenged before the High Court of Delhi.

Finally, he argued that the Reorganisation Act is manifestly ultra vires the J&K Constitution. The J&K Constitution mandates that J&K shall be a state and, further, it defines its territory. The Reorganisation Act removes J&K’s status as a State and alters its territorial boundaries.

Arguments will resume tomorrow before Justice Ramana’s Bench.