New Delhi: Senior Advocate Rajeev Dhavan commenced his arguments by characterizing the oral submissions saying that there was a misunderstanding concerning the status of merger agreements and external-internal Sovereignty by explaining that Article 370 was the repository of the merger agreement with the Instrument of Accession to protect and preserve the autonomy, unique identity and diversity of Jammu and Kashmir.
Dhavan contended that Article 370 dealt with external sovereignty as there was no standstill agreement signed by Maharaja and clarified that the internal sovereignty of the Maharaja was retained under 370.
He argued that Article 370 acted as a constitutional substitute for a standstill agreement, preventing the loss of internal sovereignty.
Constitutional Provisions and Presidential Power
Dhavan elaborated on the mandatory provision in Article 3, which requires the President to refer a bill to the legislature before invoking Article 3.
He argued that Article 356 could not be used to suspend this requirement, as it would subvert the constitutional amendment process.
The conversation shifted to the power of the President to suspend provisions of the Constitution under Article 356(1)(c).
The judges and Dhavan engaged in a discussion about the extent of presidential power and the interpretation of "including" in the context of suspending provisions of the Constitution. Dhavan stressed that 356(1)(c) should not dilute the mandatory provisions it is meant to work with.
The judges pondered the proviso's role in restraining certain powers under Article 356.
Limitations of President's Rule and Constitutional Amendment
Dhavan contended that the suspension of certain provisions during President's rule cannot be extended to amending the Constitution itself.
He emphasized the importance of preserving democracy in the state during President's rule and argued that Art 3 and 4, as well as Art 370, cannot be invoked during that period due to their conditionalities.
Diversity and Asymmetrical Federalism
Dhavan affirmed that the Indian Constitution is diverse and has special provisions for various regions and groups.
Emphasizing the importance of asymmetrical federalism, he argued that the autonomy of states is fundamental to the Indian Constitution.
Dhavan cited several articles and schedules to underline the significance of preserving this diversity.
Importance of Article 370
Dhavan asserted that Article 370 was not a relic but a vital component of the Indian Constitution's multi-symmetrical federalism.
While discussing the importance of the IoA and merger agreements, he said that Article 370 was the repository of the merger agreement with the IoA.
Dhavan argued that the provision was central to preserving the autonomy and unique diversity of Jammu and Kashmir.
Conclusion of Dhavan's Arguments
Dhavan concluded his arguments by stressing the importance of preserving the diverse character of the Indian Constitution and the need to interpret Article 370 in its context.
He emphasized that this hearing was not a statutory interpretation but a constitutional dialogue to preserve the democratic values enshrined in the Constitution.
Following Dhavan's presentation, Senior Advocate Dushyant Dave commenced his arguments, focusing on the constitutional significance of Article 370 and its abrogation.
Here is the detailed hearing:
enior Advocate Rajeev Dhavan to continue his arguments today.
Dhavan: This oral submission is in the nature of a dialogue- and a very important dialogue.
Dhavan: There seems to have been some misunderstanding on the status of merger agreements. The question which fell from your lords was that once the IoA is over, sovereignty is complete.
Dhavan: Our submission is that 370, as far as IoA is concerned, it deals with external sovereignty. External sovereignty is lost. The purpose of the standstill agreement was - what system would you have in meanwhile?
Dhavan: Raja didn't sign the standstill. As far as internal sovereignty is concerned, the standstill was very important.
Dhavan: Because all the powers of the Maharaja - retained their internal sovereignty.
Dhavan: Now come to the merger agreement. This agreement indicates the extent of internal sovereignty.
Dhavan: If there was no standstill agreement and and no merger agreement - the Maharaja would be absolute. So I take 370 to be a constitutional substitute for a standstill agreement- without which we're lost.
Dhavan: Your lordships also asked that on 4th August what was the autonomy you were going to lose?
Dhavan: The answer is none. It continues and has to continue to preserve the federation and conditions under which the federation was made.
Dhavan: We have the greatest diversity. This diversity is unparalleled.
Dhavan refers the bench to the proviso of Article 3.
Dhavan: "It is mandatory for the President to refer the bill to the legislature". It is a condition precedent before you invoke Article 3.
Dhavan: This cannot be done under the proclamation, under 356. It is a constitutional amendment which is subversive of the constitution itself. If this suspension fails, president's rule will fail and it's extension in July fails.
Dhavan: You have amended the constitution. And this mandatory provision takes us to the core of mandatory requirements of Art 3. Because the entire J&K Reorganization Act emanates from Art 3 and 4.
CJI DY Chandrachud: How do we deal with Art 356(1)(c)? So the president has the power to suspend certain provisions of the constitution during the operation of proclamation under 356.
Dhavan: The suspension in this case goes beyond supplementing. It goes to actually take out a mandatory provision.
CJI: Normally when the legislature uses the word "means" and "includes"- it's an indication of expanding the power. So when the constitution says "make incidental and supplementary provisions" and then says "including"- this seems to widen the ambit of earlier part.
CJI: "Including" would mean that what was otherwise not a supplementary or incidental provision, it is within the ambit of presidential proclamation. Isn't it?
CJI: Suppose the president in a proclamation suspends the operation of any provision of the Constitution - is that amendable to be challenged on the ground that it is not incidental or supplemental? Or are these words widening the ambit of the first part of 356(1)(b)?
Dhavan: I have never seen a provision which actually uses it to take away a mandatory provision. This is exceptional. If you expand 356(1)(c), then you will say that the president has a card to amend any part of the Constitution.
Dhavan: 356(1)(c) has to be read with mandatory provision which it cannot dilute.
CJI: The proviso seems to indicate that if the constitution wanted to exclude a power from the authority to suspend a provision of the constitution, that has been specifically defined.
CJI: The proviso says that you will not suspend anything pertaining to a HC, or you'll not assume to yourself powers of HC during the operation of 356. So where it wanted to restraint, it did so.
Dhavan: It must relate to 356. Whatever is required to materialise 356, it must be related to that. "Necessary" or "desirable" are not carte blance powers of president. Could he have suspended Part III under 356? It has to be given a limited meaning.
Dhavan: It collapses democracy in a State!
Dhavan: If this proclamation is bad, then its extension in July is also bad.
Dhavan: Article 358 suspends Article 19 during the proclamation, not beyond. This is now- well beyond the period. And the genesis of this is the presidential order. Even if it goes on for one year, it takes away conditionality which cannot be taken away.
Dhavan (reads Article 3 & 4): It puts in a conditionality - a conditionality emanating from the State itself. Can all this be wiped out?
Dhavan: Then to make one further proposition about president's rule- the wider proposition is this- During the president's rule, Art 3&4 and Art 370 cannot be invoked. Why? Because they have conditionalities.
Dhavan: The conditionality is specific to the legislature of the state- legislature becomes parliament and the governor becomes president. The conditionalities that exist- neither parliament or president can substitute them.
Justice Khanna: There's a difference between existence of power, use of power, and abuse of power. Let's not confuse it.
Dhavan: There is a power, no doubt. But the exercise of that power is equally fundamental. We cannot wish away the exercise as being purely nominal in nature.
Dhavan: When Maharashtra was broken, they said you have to refer, whether you like it or not. Likewise, Punjab- you have to refer the bill to the legislature of the state. You can't self refer it to parliament.
Dhavan: Constitution says that no bill can be introduced. It is a complete bar. We have to understand the limitations of president's rule. And this is an important limitation. Process are conditions which cannot be substituted by saying that governor will now become president.
Dhavan: Or that the legislature will now be parliament. This process of substitution is subversive to the constitution.
CJI: Can parliament enact a law during the subsistence of a proclamation under Art 356 in exercise of power under Art 246(2) or in respect of state list item?
Dhavan: They can pass a law, subject to all limitations. Except, when it passes a law under Art 3&4, it must observe the conditionality.
CJI: To accept your argument we have to hold, ofc by the process of construction, that those powers referrable to Art 3&4 which are powers of legislature of the state...
Dhavan: 356 is not plenary in nature. It is the bane of the Indian Constitution. It is introduced again and again and again.
Dhavan: 356 has been used and abused to appoint but there must be some discipline to it. It is certainly not a power to amend the constitution.
Dhavan: Transferring executive and parliamentary functions, that is the power to legislate alone, is the core of 356 and 357. There are many provisions in the constitution where legislature exercises other powers- of election, consultation etc.
Dhavan: So it has to be limited. Otherwise what happened in 5th August onwards- can happen to any other state during president's rule.
Dhavan: It is limited to legislative powers. It certainly cannot amend the constitution. Or deprive the constitution of its mandatory procedural requirements.
Dhavan: This is fundamental of how this process of dilution of 370 occured.
Dhavan: I will now again refer to the diversity of this constitution. Because your lordship is concerned with how this diversity can be preserved.
Dhavan: Bodoland is mentioned in the Constitution. Nagaland has autonomous councils.
Dhavan (reads Art 2): This is important. It's parliament's power to admit to the Union new states. This is very different from the assimilation of princes into the Constitution.
Dhavan (reads Art 35): In relation to affirmative action, power of legislature is taken away. To change this would require an amendment of the constitution.
Dhavan then refers to Article 164.
Dhavan: These are safeguards for federal unity of India, as was 370. It is the part of the basic structure of federalism in our constitution. These are limits the constitution has in relation to federalism.
Dhavan (referring to Art 164): This requires to be changed through a constitutional amendment. Can't be done under president's rule.
Dhavan: Now see Art 168 & 169- this relates to whether there should be two houses in the parliament or not. Only bear in mind, J&K had a legislative council.
Dhavan: I am reading 169(1).
Dhavan: Now come to Art 239.
Dhavan: 239A deals with how UTs are to be created and the creation of local legislatures. This cannot be done away with.
Dhavan: Compare this with what has happened in J&K. State has become a UT. Two UTs- one without a legislature, one with. This was not within the remit of Art 3 & 4- where you lose your character of state and become UTs.
Dhavan: And this is done not by reference to Art 239A or 239AA. You should have done what was done with Delhi.
Dhavan refers to the two GNCTD v UOI judgements to elaborate upon his point pertaining to "diversity" of the Constitution.
Dhavan: It undermines federalism and democracy itself.
Dhavan: Please let me take you to 243, particularly 243N and 243ZC.
Dhavan: 243N says part of panchayats doesn't apply to certain areas. I'm just showing the diversity that exists. Come to sub clause (2)(3)(a)- it shall not apply to Darjeeling.
Dhavan: Then it won't apply to Arunachal Pradesh. Once again, here is a non legislative function.
Dhavan: Here is the exercise of the most fundamental exercise of three tier federalism which is a part of the constitution. Then 243ZC says the same. 243ZD is about municipalities. It applies to UTs which has a legislative assembly. What happens to Ladakh?
Dhavan: Now come to Article 244. This is dealing with scheduled and tribal areas. None of this can be wished away. It is so crucial for diversity of our constitution.
Dhavan: 244A relates to autonomous states. Our constitution doesn't shy away from creating autonomous states.
Dhavan: Then I come to Schedule VI.
Dhavan: Autonomy of states is fundamental to our constitution.
Dhavan: Autonomy is not alien to our constitution. You can't just standardize provisions of the constitution and say look we have autonomy here but we cannot give it to J&K because on 19th Dec, we took away the provision.
Dhavan: It is very important to understand and not wish away the autonomy of Indian states. Please now see 275.
Dhavan: Now see Article 330. It is a very important provision. To say that special provisions can't be made in the Constitution is an anathema.
Dhavan: These special provisions relate to certain classes. Special provisions are a regular features of our constitution. Without these, so much could not have been done for the SC/ST/OBCs.
Dhavan: See 338(7). This is what should be done with President's rule. Even the Governor's report wasn't placed. This is what has to be written in 356. You put in all the information you have, you put in governor's report, and give reasons.
Dhavan: Please also see Articles 330 and 343. 343 is to be read with Eight schedule. Kashmiri is one of the languages recognised under right schedule. Please bear this in mind.
Dhavan: So in communications, in complaints etc, Kashmiri can be used. That has not been taken away and cannot be taken away. Part of the spirit of a region is its language.
Dhavan: Chapter IV, Article 350 has special directives for a language. Who is going to make these special directives? President? Parliament? What is the status of Kashmiri now? Has it disappeared from the eight schedule?
Dhavan: 371(a) refers to Nagas customary law. And then 371 refers to hill areas of Manipur- very relevant.
Dhavan refers to Article 371F: This was examined in Poudyal.
[He is referring to RC Poudyal & Anr. v UOI, 1993]
Dhavan: You take into account all antecedents and see the nature of the case- whether for 370 or otherwise.
Dhavan: Schedule V deals with administration of scheduled areas and scheduled tribes. There is a tribals' advisory council for when the governor applies laws.
Dhavan: Now I come to most important schedule on autonomy - Schedule VI
Dhavan: Schedule V deals with Assam, Meghalaya, Tripura, and Mizoram- excludes them. And this is applied in Schedule VI.
Dhavan: Now we come to question of autonomy of North East. Without these autonomy, India would have collapsed unless all this was given to the states in question. This quest for uniformity across the board which CO 272 and 273 seem to countenance is not the heart of constitution
Dhavan: It is autonomy within federation, special provisions in relation to people. Take that away and we don't need such a big constitution.
Dhavan: This is where the entire politics of North East arise. Gorkhas say that we want Gorkha land. Someone says we want Bodoland. All this emanates from Schedule V, VI, and the concept of autonomy.
Dhavan (referring to regional north east councils): What do these autonomous councils do? Each of these is given a law making powers which ofcourse is with limits. Without this, we may lose north east.
Dhavan: It is this democratization of power that has enabled us to make special concessions where they are necessary.
Dhavan: Now there are two interesting provisions found in footnotes of Schedule VI. That is sub para 3(a). It wasn't without protest and accomodation. "Additional powers of North Cachar Hills council..."
Dhavan: Communication is given to the council under Art 371(3)(a)(b).
Dhavan: Your lordships are familiar with Bodoland agitation. Now see clause (3)(b).
Dhavan: The reason why I cited all of this is because of the diversity this constitution makes in Federalism and democracy. A diversity that is to be treasured, not wished away in the name of uniformity. There are no dead horses to be flogged.
Justice Kaul: You're right, it's possibly more diverse than the whole of Europe combined.
Dhavan: Europe, America, sub-saharan Africa, take parts of the south seas.
Dhavan: Diversity is necessitated because of the absence of the merger agreement. I've called these asymmetrical provisions. These are in fact multi symmetrical provisions.
Dhavan: This makes our constitution unlike any other in the world. Simple examples of asymmetry are Canada, you have French in one area and the English in other. Or Belgian, the three languages- those are asymmetrical.
Dhavan: Indian constitution is multi symmetrical of which J&K is a part.
Dhavan: Please see a passage of TMA Pai on the diversity aspect.
Dhavan (reading TMA Pai): "All the people of India are not alike, and that is why preferential treatment to a special section of the society is not frowned upon..."
Dhavan: "The one billion population of India consists of six main ethnic groups and fifty-two major tribes; six major religions and 6,400 castes and sub- castes; eighteen major languages and 1,600 minor languages and dialects."
Dhavan: "Each person, whatever his/her language, caste, religion has his/her individual identity, which has to be preserved, so that when pieced together it goes to form a depiction with the different geographical features of India."
Dhavan: "These small pieces of marble, in the form of human beings, which may individually be dissimilar to each other, when placed together in a systematic manner, produce the beautiful map of India."
Dhavan: "Each piece, like a citizen of India, plays an important part in making of the whole...even when one small piece of marble is removed, the whole map of India would be scarred, and the beauty would be lost."
This is a very evocative passage so I wanted to read it.
Dhavan: I am making a point on why merger agreement was important and why Art 370 substituted a standstill and merger agreement. I'm going to read the Premnath Kaul judgement.
Dhavan: Even after the IoA, he had not given up his rights.
Dhavan: What 370 represents is two powerful democratic movements- in people of India, and in people of Kashmir, demanding their Maharaja, which is what he did - he gave up Rajya sabha, but he didn't agree to a constituent assembly which came later.
Dhavan: All the IoA did was put in the four conditions and fed externally. That's why I made the distinction between external and internal sovereignty.
Dhavan: I will come to what Sardar Patel said. This is important to understand what 370 represented and what IoA did.
Dhavan: For others, you gave autonomous regions, you bond them together, you expanded it. But this- the J&K Constitution of 1957, we wished it away? It simply can't. J&K had a constitution. Where is it now?
Dhavan: Now I'll come to the importance of the Delhi decisions. I'll do the second once first. "Held that regard must be had to principles of asymmetrical federalism embodied in the Indian constitution..."
Dhavan: "The design of our constitution is such that it accomodates the interests of different regions while providing a larger constitutional umbrella..."
Dhavan (reads from Navtej Singh Johar): "The ultimate goal of our magnificent constitution is to make right the upheaval which existed in Indian society before the adoption of the Constitution..."
Dhavan: When this hearing began, it appeared to me that we were reading a Constitution as if it was a statute. We went to this word and that word- that is not how a constitution is meant to be read or transformed.
Dhavan (reads NCT v UOI): "If the moral values of the constitution are not upheld at every stage, the text of the Constitution may not be enough to protect the democratic values."
Dhavan: This deliberative exercise has not taken place with changes of J&K constitution. Mr Sibal had a number of questions asked in parliament last day- are you changing 370? The answer was no, no, no. And suddenly this happened.
Dhavan: What was lost on 4th August, your lordships had asked. This is what was lost- and they didn't even use the amendment power, which is the only power which is available to be them- the power to delete 370.
Dhavan: Your lordships need to go to Premnath Kaul because it explains what was the situation like after 1950- when there was an IoA but no merger agreement.
Dhavan: It is temporary to the extent that 370 indicates. Therefore, 370(2) and (3) which deal with the Constituent Assembly, have become obtuse.
Dhavan: They have invoked this in CO 273. All of a sudden a provision which is constitutionally beyond the extension of the assembly has suddenly been used in CO 273.
Dhavan: CO 44 was the only time in 1952 when 370(3) was used. And now it was used in CO 273.
Dhavan: So what remains is 370(1) not to be read as a statute but to be read in context.
Dhavan: It says follow the IoA as far as consultation is concerned. And for the rest, concurrence is necessary.
Dhavan: The reason why I said that 370 couldn't be tinkered with during president's rule is because there is a mandatory requirement as it was in Art 3.
Dhavan: You can't say that we wiped out the constitution, we wiped out all treaties so that 370 is gone. Amend it, go through that process, but mandatory provisions which survive 370(1) are violated.
Dhavan: And it cannot be done in President's rule because it states that state government is required.
Dhavan: 370 is far from a relic...this is part and parcel of the multi symmetrical federalism that exists.
Dhavan: While president's rule was in operation, you couldn't use Art 3 because you can't substitute one legislature for another. And you can't do away with 370 because mandatory provisions of Constitution do not say that parliament can do this and the president can do this.
Dhavan: It says that it must be done by the government of J&K. In CO 272 says "with the council of ministers". Can you do it how it was done by introducing it by Amit Shah? That we're doing it?
Dhavan: There was no merger agreement. So either we continue sovereignty as said in Premnath Kaul or we say that this is the essential step by which internal sovereignty and internal arrangements are worked out.
Dhavan: 370 is the repository of merger agreement read with the IoA.
Dhavan: One of my arguments, whether it is done by transformational morality because of the antecedents or whether it is done by basic structure of which transformational morality is a part-
Dhavan: 370 to that extent is a part of the basic structure - as a substitute for the merger agreement, as an interpretation
Dhavan: In Nagaraj, your lordships laid down conditionalities for exercise of 356. All the documents must be made publically available and placed before parliament. In this case, even the Governor's report wasn't placed before Parliament.
Dhavan : A full, frank, and complete disclosure to the parliament and the people was necessary. The entire exercise of president's rule needs to be examined.
Dhavan: Article 3, article 370 contain mandatory requirements on information to be laid before house. Unfortunately, mandatory requirement of Art 3 was suspended by legislature. It is ultra vires and taints both the declaration and extension of president's rule in 2018 and 2019.
Dr Dhavan has concluded his arguments.
Sr Adv Dushyant Dave commences his arguments.
Dave: 370 is perhaps the most brilliant articulation of statesmanship on the part of the constitutional framers.
Dave: You are at a time when calls for plebiscite are being raised in Kashmir. You are at a time when raiders are raiding in plain clothes and trying to take away. You are at a time when Maharaja is uncertain whether he wants to join India or Pak.
Dave: At a time like that, this was a brilliant compromise that was arrived at which led to producing the article which persuaded people of J&K to accede to India. We gave them a promise. You cannot breach that promise like this.
Dave: If you start tinkering with this diversity nothing will be left.
Dave: Please consider three submissions - 1. Article 370 is a piece of unusual draftsmanship. It is temporary but not by afflux of time as most temporary statutes are. It is temporary by object, the purpose. Once that object is achieved, nothing remains for Pres to exercise.
Dave: My submission is that 370(3) has served its purpose. That the day Constituent Assembly of J&K agreed that yes, Article 370 must remain, subject to sovereign modification and the President accepted and issued it in CO 44, that's the end of the story.
Dave: If it is a continuing exercise, in my submission, the only way parliament could do it would be by amending the constitution under Art 368 and repealing Art 370 and in no other manner. It’s a fraud on Indian constitution.
Dave: Lastly, my submission is that exercise of powers by the President on 5th and 6th August are nothing but fraud on the Constitution.
Dave: The only material was that the ruling party manifesto in 2019 had said that we'll abrogate 370.
Dave: Your lordships in DC Wadhwa's case have said that you cannot exercise constitutional powers to achieve political ends.
Dave: You have a government in association with a local party in J&K. It is working well. You suddenly withdraw the support from that government. Then you persuade the President to issue a 356 order. Then you persuade President to issue a resolution of assembly.
Dave: Parliament takes controls over executive and legislative functions. Then you say President will exercise all powers into one. Then you pass orders under 370.
Dave: What more classic example of abuse of power than this?
Dave: 356 is a temporary provision. It is a temporary situation. Can you take actions which are permanent in nature?
Dave: To do this, it really strikes at a very basic feature of our constitution - democracy, federalism.
Dave: Government of India categorically admits this- that Constituent Assembly of J&K did not, in any manner, deviate from the provisions of the Constitution of India which would be applicable to J&K.
Dave: Then they say what we have done is because of national interest. No one knows what this national interest is because it hasn't been defined in the counter affidavit.
Dave: Of course there is insurgency. Noone can deny that. But then we have insurgency in so many states in North East India. We had insurgency in Punjab for a long time. If we were to start disintegrating states into UTs, no state would be saved.
Dave: To be giving this kind of power to a majoritarian government would be destruction of rule of law.
Dave: You don't want to amend the constitution of India because then you'll have to follow the procedure - you need 2/3rd majority in both houses. You may even need to go to the legislatures of the state because you're taking away representation of the State in LS and RS.
Dave: These are the safeguards. If these safeguards are thrown out of the window in this manner, who else can protect us but your lordships?
Dave: This is not just about J&K. J&K was and will always be a part of India. But the promise that India made to J&K- how do you interpret those terms and conditions.
Dave: The need of the hour was that we wanted Jammu and Kashmir to get into us. At that time we were left with no option but what was given to us. Otherwise, we were afraid Maharaja may run away to Pakistan.
Dave: This controversy needs a delicate approach by this court. Today let's assume this decision is in national interest. Tomorrow some other political party in power with majority may try and take a decision which is not in national interest.
Dave refers to a few judgements.
CJI agrees attorney general said the basic structure of the constitution cannot be altered.
Dave: If it can be done in J&K, why can't it be done in Gujarat or Maharashtra?
Bench Adjourns….
(Inputs From Live Law)