The Constitutional Challenge To Abrogation Of Article 370: Day 3 Of Hearing Before The Constitution Bench Of The Supreme Court Of India

As the hearing before the Hon’ble Supreme Court ran into its third day, continuing his submissions, Mr. Raju Ramachandra, Sr. Advocate, referred to four more judgments of the Apex Court - Puranlal Lakhanpal-II [on the principle of amendment and radical changes in the context of exercise of power under Article 370(1) (d)], Sampath Prakash [on temporariness of Article 370], Mohd. Maqbool Damnoo [on the nature of exercise of power under Article 370(1) in the year 1965 to replace the word ‘Sadar-i-Riyasat’ with ‘Governor’ being on a different footing from its exercise in the year 2019] and finally, the discussion on temporary nature of Article 370 in SBI v. Santosh Kumar Gupta. This last judgment was cited in extensor including references therein to Sampat Prakash’s case.

Mr. Ramachandran submitted that as per him, Article 370 will continue in force until specified event in Article 370(3) takes place. In his opinion, the Constituent Assembly did not desire that Article 370 should cease to exist.

Mr. Ramachandran thereafter proceeded to draw a common thread through all the aforestated cases. He argued that consultation, recommendation and concurrence are all species of constituent power. Relying upon S. 147 of the Constitution of Jammu and Kashmir, he posited that consultation is allowed as a right to the Government of Jammu and Kashmir. In this context, Mr. Ramachandran went on to rely upon J. Ray’s description of Constituent Power in Indira Nehra Gandhi’s case and the description of Constituent Power as described in I.R. Coelho. Per him, the Constituent Power is of two types, plenary i.e. power that is free from external limitations and amending i.e. derivative power and Article 370 confers both species of Constituent Power on Jammu and Kashmir. While the democratic power resides with the State, the executive power vests with the Union. Therefore, it is only the State of Jammu and Kashmir which can decide as to how to exercise its constituent powers or who can appoint the Constituent Assembly. The President therefore cannot transfer this power to the State Legislature and any such act on the part of the President is ultra vires of his powers under Article 356 of the Constitution of India.

With this Mr. Ramachandran concluded his arguments. However, before taking his place he indicated that the Basic Structure issue shall be dealt with by Mr. Naphade, Sr. Advocate, while Mr. Dinesh Dwivedi, Sr. Advocate, shall address next on the issue of reference of the present dispute to a larger bench.

After apprising the bench that he was appearing for intervenor, Prem Shankar Jha who is journalist and also served as interlocutor for the State of Jammu and Kashmir during Mr. Vajpayee’s tenure as Prime Minister, Mr. Dinesh Dwivedi, approached his arguments from a completely new end. He argued that there was no power under Article 370 (1)(d) available at all, as no provisions of the Constitution of India could have been made applicable in the State of Jammu and Kashmir through Presidential Orders and that exercise of power was in contravention of Article 368 of the Constitution of India. As per him, Article 370 was supposed to have ceased with the Constituent Assembly. He argued that at time of the impugned action, Article 370 did not exist, it died its natural death, became otiose long back with the promulgation of the Constitution of Jammu and Kashmir and therefore, its power had also ceases to exist. He further elaborated that once the constituent assembly ceased to exist, then Article 370 also lost its significance.

The submitted that the articles under Part XXI of the Constitution are Temporary, Transitional and Special Provisions. They are temporary, being limited by both time factor and objective.

He further submitted that the attempt to modify the word ‘Constituent Assembly’ to ‘Legislative Assembly’ through the exercise of power under Article 370(1)(d) could not have been done as the only route that could have been adopted was only via Article 368, as that interpretational change was equivalent to constitutional amendment.

He even went to the extent of saying that the Constitution of Jammu and Kashmir is not subordinate or relatable to the Constitution of India and that it had its own sovereign and independent identity and status as reflected in the Article 370 itself.

Turning to Jammu and Kashmir’s history, he submitted that the proclamation of Maharaja Hari Singh to establish that State was not bound by the provisions of Constitution of India. He retained his sovereignty. Thereafter, he also referred to the provisions of the Proclamation issued in the year 1949 by the regent Maharaja Karan Singh by virtue of which provision of Constitution of India were made applicable to the State of Jammu and Kashmir.

Relying upon Article 370 (2), he argued, that it was envisaged by the framers of the Constitution of India that the relationship of the State of Jammu and Kashmir will crystalize once Constitution for the State of Jammu and Kashmir is formulated by State Constituent Assembly.

He even went to the extent of saying that the Constitution of Jammu and Kashmir is not dependent on Article 370. Article 370 does not give the power but only recognizes it. Like the Constitution of India cannot be annulled through exercise of power of amendment under Article 368 of the constitution of India, similarly the Constitution of Jammu and Kashmir cannot be annulled using the provisions of Article 370 itself. He submitted that executive power under Article 370 could not have been employed to transform the relationship of the State with India.

At this stage J. Kaul aptly questioned whether the Constitution of the State and Constitution of India could be equated at all? Surely, a distinction has to be made between the Constitution of a State and the Constitution of the Country. The integrity of the country is written in stone and that cannot be changed by anyone. Suppose everyone in the state agreed that Article 370 has to go then what would be the route to do so?

To this Mr. Dwivedi replied that it should have been finished with the conclusion of the State Constituent Assembly. Now, the only way to do so is through a Constitutional Amendment under Article 368.

He questioned that if the objective was only to chip away the powers from the Constitution of Jammu and Kashmir from time to time then what was the purpose of having another Constitution at all?

However, again J. Kaul very aptly cautioned Mr. Dwivedi that somewhere he was equating the Constitution of India and the Constitution of Jammu and Kashmir.

In an attempt to answer his own question, Mr. Dwivedi argued that it was envisaged by the framers of the Constitution of India that the State of Jammu and Kashmir will have a sovereign constitution i.e. why they went to the extent of allowing another Constitution. The framers of the Constitution also gave autonomy to the State of Jammu and Kashmir as our federal system was not rigid rather it was flexible enough to accommodate different sort of federal relationships.

By the time of this submission, it was time for the bench to rise for the day and now the matter stands over to 21st January, 2020.