Supreme Court hearing on Article 370 abrogation | Day 12

The Bench rises for the day. The hearing will resume on August 31.

CJI Chandrachud says – ‘......the wide chasm between absolute autonomy as it existed on January 26, 1950, and complete integration as brought on August 5, 2019- that chasm had been substantially bridged by what had happened in between. In that sense, it was not a complete migration from absolute autonomy to absolute integration. It is obvious that a substantial degree of integration had already taken place between 1950-2019– in 69 years. And therefore what was done in 2019, was it really a logical step forward to achieve that integration?’

CJI Chandrachud says – ‘..You are right that this was in the aid of constitutional integration...there was undoubtedly a gradual integration...but there are two ways to look at it- If the proviso to Article 370(3) cannot apply does it mean substantive power under Article 370 is denuded or lost?..If that power is not lost then is it a unilateral power that can be exercised by the President?’

SG Tushar Mehta says – ‘The President of India, being bound solely by a body outside the Constitution of India may perhaps not be the correct interpretation of our Constitution. The Constitution of J&K is beyond and outside our constitution.’

The AG submits – ‘Can a body like the Constituent Assembly of J&K have a final say on Article 370? It is not a constituent body of the Parliament of India. It does not have all the attributes and powers?’

CJI Chandrachud points out that in Article 370, the recommendation of the Constituent Assembly is a condition precedent to the abrogation of Article 370 by the President.

CJI Chandrachud cites examples where recommendations are binding and when they are not. He says–

‘The hues of the word ‘recommendation’ are not by itself dispositive of the content of the expression as to whether it is merely an advice or a condition precedent. I will give examples of ‘recommendation’ being used in the Constitution- Articles 109, 117. 109 deal with money bills. A money bill is not introduced in Rajya Sabha, it is always introduced in Lok Sabha. After the bill is passed in Lok Sabha, it is sent to Rajya Sabha for recommendation. Those recommendations are not binding on the Lok Sabha. It may either accept them or reject them. That is what Article 109(2) says– the recommendation of the Rajya sabha does not bind the Lok sabha.’

CJI Chandrachud says – ‘ Recommendation is not just an opinion. When the Constitution uses the term “recommendation”, it means a positive decision because Article 370 uses different phrases. It uses consultation, concurrence, decision, and recommendation.’

The AG responds by saying – ‘ Recommendation is not binding on the President. Therefore, it is a recommendation. It is not concurrence.’

CJI Chandrachud enquires – ‘Suppose there is a Constituent Assembly and it recommends to the President - do not abrogate Article 370, is it open to the President then to override the advice?’

The AG responds by saying – ‘That power of recommendation is not available to the assembly. It has to only recommend to render Article 370 inoperative.’

Justice Sanjiv Khanna asks – ‘In this case is there any President’s proclamation exercising powers under clause 3 to Article 370 saying that I am abrogating Article 370?’

AG says that he will come back with an answer.

The AG submits that the powers conferred by Article 370 on the President are not in the nature of Executive powers but it is a legislative power that is conferred.

The AG submits – ‘...If you look at the constitutional integration process of the rest of the country and compare it to the constitutional integration process of J&K- the historical narration shows that there is no fundamental difference at all...The political compulsions that happened in the case of J&K made a very slight deviation...Article 370 is nothing but the outcome of the formalisation of the principles and the procedures for interpretation’.

.

The AG says – ‘...61 years ago we had Puranlal Lakhanpal wanting to contest an election. How his dream has come true, we can now contest elections in J&K. All of us are Puranlal Lakhanpal in a way.

‘ I wanted to read the concluding speech of Dr. Ambedkar at the conclusion of the Constituent Assembly if time permits at the end I will read...it is a beautiful speech’, SG Mehta says while concluding his submissions.

SG Mehta refers to the Supreme Court’s ruling in S.R. Bommai v. Union Of India to show the limitations of judicial review on Presidential proclamations under Article 356.

‘Why I am reading this – Mr. Sibal read the first part of it. His attention missed the last part.. this is the law’, he adds.

‘In fact, once the issuance of the Proclamation is held valid, the scrutiny of the kind and degree of power used under the Proclamation, falls in a narrower compass. There is every risk and fear of the court undertaking upon itself the task of evaluating with fine scales and through its own lenses the comparative merits of one rather than the other measure. The court will thus travel unwittingly into the political arena and subject itself more readily to the charges of encroaching upon policy-making. The “political thicket” objection sticks more easily in such circumstances. Although, therefore, on the language of Article 356(1), it is legal to hold that the President may exercise only some of the powers given to him, in practice it may not always be easy to demonstrate the excessive use of the power.’ [text from the judgment]

1994: S.R. Bommai judgment

The case ended peremptory dismissals of State governments by an antagonistic Centre.

SG Mehta argues that the Jammu and Kashmir Reorganisation Act, 2019 has provided J&K with all the attributes of a State even though technically it is a Union Territory. He dismisses the argument of the petitioners that representation of J&K in the Parliament has reduced.

‘Lok Sabha and Rajya Sabha have representatives of J&K’, he adds.

SG Mehat says that in Ladakh local body elections took place in 2020. He apprises the Bench that elections for the Ladakh Autonomous Hill Development Council will take place on September 10, 2023.

SG Tushar Mehta says – ‘I have taken instructions. The instructions are that Union Territory is not a permanent feature. But I will make a positive statement the day after tomorrow. Ladakh will remain a Union Territory’.

The Bench has reconvened. The hearing has resumed.

CJI Chandrachud says – ‘Equally, restoration of democracy is important....Is there a roadmap? Tell us what the roadmap is.’

He says that the court acknowledges the Centre’s statement that progression has already begun.

SG Tushar Mehta says that the assurance that J&K will not be a Union Territory permanently was given on the floor of the House by Home Minister Amit Shah. He says that he will take instructions.

‘In 2020, for the first time local Elections took place..I’ll take instructions. But I’ll show statements and efforts..’, he says.

CJI Chandrachud asks the Solicitor General to take instructions on when J&K’s statehood will be restored.

He says – ‘We understand that these are matters of national security...the preservation of nation itself is the overriding concern. But without putting you in a bind, you and Attorney General may seek instructions on the highest level - is there a time frame in view?’

CJI Chandrachud says – ‘Should we not permit the Parliament to postulate that for a certain period, in the interest of the preservation of the nation itself, we want for a certain period that this particular state shall go into the fold of a Union Territory- on the clear understanding that this shall revert back to a state. The government also has to make a statement before us that the progression has to take place. It cannot be a Union Territory permanently.’

CJI Chandrachud remarks –

‘Why was it not possible for the Union to say that right now in the case of a State, we have such an extreme situation in terms of national security, that we want for a certain period that a Union Territory should be created? But this is not permanent and this shall be back as a State? Can a Union not do that for a certain period, to bring stability? Because let us face it, whether it is a state or a Union Territory, all of us survive if a nation survives.’

CJI Chandrachud says –

‘As we see the creation of Union Territories, you have on one hand, examples like Chandigarh - carved out of Punjab and remained a Union Territory Then you have a progression where certain areas became Union Territories in the progression of making them States- northeast, Manipur, Mizoram, Tripura. They became Union Territories but that is in the process of making them into a stable administration to make them States. You cannot immediately make them States.’

CJI Chandrachud asks – ‘Does the parliament have the power to convert an existing Indian state into a Union Territory? If it does have that power, how do we read Article 3? ‘

SG Mehta responds by saying – ‘....Here is a border state where one of our territories is occupied by Pakistan - we have PoK. I have given figures of deaths taking place every year. This is a problem faced by the nation since decades which we are sorting out. There are several considerations - one of the considerations is how to bring youth into the mainstream. What we see today is a result of blueprint we have’

Justice Kaul says – ‘It’ is not a one of its kind situation. We have seen the northern border Punjab- very difficult times. Similarly, some states in the North East....How do you distinguish between J&K with any other border states?’

CJI Chandrachud asks – ‘ Once you concede that power to the union in relation to every Indian state, how do you ensure that the kind of abuse they apprehended- this power will not be misused?’

Justice Kaul points out that there are many states with borders and that J&K is not the only such state.

SG Mehta responds by saying – ‘The history also- how the situation in Kashmir is developing– the deaths of civilians, the deaths of security forces, the number of attacks, stone pelting, the hartals, paralysing schools, hospitals, banks, businesses- everything.’

SG Mehta submits that there has to be certain considerations considering the fact that J&K is a border State with a history of terrorism.

‘This is a one-of-a-kind case. If Gujarat or Madhya Pradesh was to be bifurcated, the parameters would be different. But when J&K, considering its strategic importance, a border state, history of terrorism, history of infiltration, and history of outside influence- there has to be some considerations. We share borders with at least four countries, all of which may not be friendly, to put it mildly’, he says.

CJI Chandrachud remarks further – ‘It is very obvious from Section 5 that once the constitution of India prescribes a legislative domain for parliament, that is denuded from the legislative domain of the J&K legislative assembly. In that sense the J&K constitution was always meant to be subservient to India... it is not a document which can be equivalent.’

Agreeing with the Solicitor General, CJI Chandrachud points out –

‘There is another reason why your argument may be correct- look at Section 5 of the J&K Constitution. It says that the executive and the legislative powers of the state extend to all matters except those in respect of which Parliament has the power to make laws under the Indian Constitution. So once the constitution of India defines areas in which the parliament has power to make laws then that is denuded from the jurisdiction of the J&K legislative assembly.’

[Note: Section 5 of the J&K Constitution reads – 5. Extent of executive and legislative power of the State: executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India.’ ]

SG Mehta explains that a Constitution must be a document of governance and must include a sense of sovereignty which the J&K Constitution does not have.

He says – ‘Constitutions have certain attributes - it must be a document of governance providing for everything. This constitution only has certain aspects, the rest they leave it to the Constitution of India. To be recognised as a Constitution, you must provide for a kind of sovereignty...Sovereignty would include the right to acquire new areas, the right to cede territories- which we have in Articles 1,2,3,4. None of the attributes of a Constitution can be attached to the J&K constitution. It was a piece of legislature recognised till August 5, 2019’.

CJI Chandrachud says – ‘According to you, the role of the Constituent Assembly of J&K is the role created for it by the Constitution of India, nothing beyond that.’

Agreeing, SG Mehta says – ‘Yes, it is subservient and subordinate. It never had original Constituent powers.’

SG Mehta submits – ‘The Constitution of J&K will always be subordinate to the Indian Constitution because the J&K Constituent Assembly’s very creation was by Article 370.’

SG Mehta says – ‘What is mandatory is that you take the recommendation. But the recommendation is not binding. Otherwise, the constitution would have said, act accordingly. ‘

CJI Chandrachud points out that for abrogation of Article 370, the recommendation of the Constituent Assembly ‘shall be necessary’ as reflected in Article 370(3). He says that this is mandatory and not merely recommendatory.

SG Mehta submits that Article 370 is the only provision in the Constitution that makes the application of central laws including beneficial legislation dependent on the concurrence of the State government.

‘Such a drastic provision cannot be perennial. This is the only provision that has a self-destructive clause. This shows it was intended to be temporary’, he adds.

SG Mehta submits that the framers of the Constitution did not intend for Article 370 to be permanent and hence the provision is contained in Part XXI of the Constitution –’ temporary, special, transitory provisions’.

‘Considering the legislative expanse of this provision, the constitution makers could have never wanted for this to remain forever...The impact of Article 370 was to deprive the residents of J&K and Ladakh from being treated at par with their fellow citizens. This is also a suggestive indicator that the framers did not intend for it to be permanent’, he adds.

Justice Khanna points out that concurrence of the state government means concurrence of the council of ministers.

SG Mehta responds by saying that if the council of ministers is not there then the powers are to be exercised solely by the Governor. He says that there have been several instances wherein powers under Article 370(1)(d) have been exercised when there was President’s Rule with the concurrence of the Governor only.

CJI Chandrachud points out that powers under Article 367 have always been exercised with concurrence.

To this, SG Mehta says – ‘This is also with concurrence. The only difference is that the concurrence is of the governor because the governor steps into the shoes of the government.’

Justice Khanna asks – ‘Could the legislative assembly make a recommendation in terms of Article 370(1)(d) saying that under Article 367 you equate the constituent assembly with the legislative assembly?’

SG Mehta says – ‘What will be the impact of this interpretation? I will show that. In the absence of a constituent assembly, which can never be modified, Article 370(3) can never come into effect and Article 370 gets the status of a permanent provision. Please read it in totality. The difficulty is that even the Article 368 route, which is suggested, cannot be taken. If that is the meaning given, that Article 370 remains unalterable, it becomes permanent.’

Outlining the crux of the argument of the petitioners, CJI Chandrachud says –

‘Article 370(1)(d) refers to “other provisions of the Constitution”. Other provisions according to you would include Article 367. Possible. But can you use Article 367 to bring about an amendment to Article 370? If you do that, are you not really doing that to amend Article 370 itself? This is the heart of the matter.’

SG Mehta responds by saying that this would then imply that Article 370 is permanent and can never be modified.

Justice Sanjiv Khanna asks – ‘ The question is that by amending Article 367, aren’t you in fact amending Article 370 without taking recourse to Article 370(3)? Because Article 370 can only be amended in terms of Article 370(3).’

In response, SG Mehta says – ‘ Not amend. Article 367 is an explanation. It may have an effect of an amendment.’

CJI Chandrachud says further – ‘...Whether you call it an explanation or an amendment- the amendment to Article 367 had the consequence of reading the words ‘Legislative Assembly’ instead of ‘Constituent Assembly.’

CJI Chandrachud enquires – Can you alter the import of a provision of Article 370 itself by a process other than Article 370(3)? Because what you have done here is that you have used Article 367 to amend the proviso to Article 370.

SG Mehta responds by saying – ‘..My submission is that when the Constituent Assembly is dissolved without any recommendation, that power of the requirement goes because the proviso becomes otiose, cannot result in the main provision becoming inoperative. The President was left to his own choice.’

CJI Chandrachud asks the Solicitor General if the abrogation can stand independent of the modification made to Article 367?

[Note: President Ramnath Kovind issued an Order (C.O. 272) amending the interpretation of ‘Constituent Assembly’ under Article 370(3) to ‘Legislative Assembly’ by amending Article 367—the interpretation clause]

SG Mehta says – ‘..Article 370(1) permits two organs- the President and the State government to change anything in the Constitution...To ensure that this never happens again, Article 367 was used.’

Relying on the Raghunathrao Ganpatrao case, SG Mehta says that removing certain provisions in the Constitution can be a way of furthering the goal of the Constitution. He points out that such an exercise could further the basic structure doctrine and enhance fraternity which is the bedrock of the Constitution.

SG Mehta reads from the Supreme Court’s ruling in Raghunathrao Ganpatrao v. Union of India (1970) to contend that any measure aimed at bringing about equality among citizens must be welcomed.

‘In our considered opinion this argument is misconceived and has no relevance to the facts of the present case. One of the objectives of the Preamble of our Constitution is ‘fraternity assuring the dignity of the individual and the unity and integrity of the nation.’ It will be relevant to cite the explanation given by Dr. Ambedkar for the word ‘fraternity’ explaining that ‘fraternity means a sense of common brotherhood of all Indians.’ In a country like ours with so many disruptive forces of regionalism, communalism and linguism, it is necessary to emphasise and reemphasise that the unity and integrity of India can be preserved only by a spirit of brotherhood. India has one common citizenship and every citizen should feel that he is Indian first irrespective of other basis. In this view, any measure at bringing about equality should be welcome.’ [Text from the judgment]

SG Mehta says that federalism is also a part of the basic structure doctrine but federal diversity can still exist within federalism.

SG Mehta contends that Article 370 confers a constituent power in the President under sub-article 3 which is a self-extinguishing provision.

CJI Chandrachud says that the judgment of the Supreme Court in the original Madhav Rao Scindia v. Union of India (1970) has to be looked into as it places limitations on the power of the Union government to use the route of an interpretation or definition provision to abrogate substantive constitutional rights.

SG Mehta submits – ‘There were two constitutional provisions- Articles 291 and 362 which provided for privy purses. The central government exercised powers under Article 366 and deleted the term ‘princely states’. This court allowed that petition and said that so long as these two provisions exist, you cannot take away privy purses by merely changing Article 366 which is the definition clause. After the judgment in Madhavrao Scindia, there was a constitutional amendment. The government repealed it. So the route was taken. That came to be challenged and the matter went to be challenged in Raghunathrao Ganpatrao v. Union Of India (1993).’

Placing reliance on the Supreme Court’s ruling in Raghunathrao Ganpatrao v. Union Of India, SG Mehta points out that the court had ruled that any change in the Constitution that brings everyone at par can never be faulted with.

Solicitor General (SG) Tushar Mehta provides a brief outline of his submissions. He says that his arguments will focus on three parameters – the interpretation of Article 370, the Jammu and Kashmir Reorganisation Act, 2019, and the ambit of power of the legislature during the President’s Rule (Article 356).

The Bench has convened. The hearing has resumed.

The Constitution Bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant will continue to hear arguments advanced by the Union government today.

Stay updated about the ongoing Supreme Court proceedings on the abrogation of Article 370 with The Hindu’s coverage of the latest developments.

Read more here.

The Supreme Court on August 28 asked the Attorney General of India to look into the suspension of a senior Kashmiri lecturer, Zaroor Ahmed Bhat, from his job by the Jammu and Kashmir administration in close succession of his arguing his challenge to the abrogation of Article 370 before the top court.

“Mr. Attorney General, please use your good offices to see what happened. Somebody who appears in this court is suspended. Talk to the Lieutenant Governor… If there is some other reason, apart from his appearance in this court, that’s different… But this suspension happens in close succession to his appearance before us… just see what happened,” Chief Justice of India D.Y. Chandrachud addressed the country’s top law officer R. Venkataramani.

Justice B. R. Gavai also questioned the Centre about the “close proximity” between Mr. Bhat’s appearance in court and the suspension order.