On the eighth day of the Supreme Court hearing regarding the abrogation of Article 370, several advocates presented their arguments. Senior Advocate Dinesh Dwivedi argued that Kashmir's accession to India was unique, with distinct conditions. He emphasized that the autonomy of the state was significant due to its exclusion from certain provisions like Article 238.
Dwivedi highlighted the variable concept of sovereignty, referring to past cases and judgments. He stated that internal sovereignty was retained by the ruler and that ceding external sovereignty didn't necessarily mean ceding internal sovereignty.
He also pointed out that the intent behind Article 370 was temporary and subject to the formation of the Constituent Assembly. Dwivedi concluded that the commitments made to Kashmir should not be ignored.
Other advocates presented arguments against the reorganization of Jammu and Kashmir, emphasizing historical, jurisprudential, and constitutional aspects. They argued that the region's conscious choice to remain a minority in India and the principles of anti-majoritarianism and federalism should be upheld.
The hearing also delved into issues related to the imposition of President's rule, the constitutionality of altering boundaries, and the importance of recognizing the unique circumstances of Jammu and Kashmir.
As the day concluded, it was noted that further arguments would be presented in the upcoming sessions, focusing on issues such as internal sovereignty and delimitation, while the bench explicitly excluded the topic of delimitation from the discussions.
Detailed Hearing:
Sr Adv Dinesh Dwivedi: Kashmir acceded differently. Rest of the states concluded standstill agreements before 1947. Because the standstill agreement was a precondition to accession. Kashmir did not do that.
Dwivedi: Initially, all Indian states were promised that they'd have their constitutions. But through negotiations this was taken up.
Dwivedi: Status of Kashmir was a Part D state when the Constitution was adopted. Yet, in 370, Art 238 was excluded. That speaks volumes about the autonomy of the state.
Dwivedi: Our basic theme is that Kashmir was different.
Dwivedi: Kashmir was different both in terms of accession to dominion of India where it ceded at a different time as an independent state or a nation. And it was different in the sense that it didn't merge unlike the other states.
Dwivedi: The conditions added in favour of Kashmir- that we're not bound by the Constitution or the future constitution, the internal sovereignty rests with the ruler, the UOI cannot acquire land in Kashmir- these were different.
Dwivedi: The first aspect we need to keep in mind is that sovereignty was retained by Raja in IoA. The concept of sovereignty is a variable concept.
Dwivedi: The sovereignty being a variable concept has two factors- internal and external. There are two decisions your lordships may note- 1953 Pepsu- full bench which deals with a similar situation when Patiala merged with British paramountcy
Dwivedi: This says that sovereignty comprises of two parts. Merely because you have ceded external sovereignty, it doesn't amount to ceding of internal sovereignty.
Dwivedi: Another judgement in this regard is KN Paul's case.
Dwivedi: Kashmir didn't lose all internal sovereignty just because it acceded. Neither inclusion in Art 1 or the schedule could result in loss of internal sovereignty.
Dwivedi: Art 370 ceases to operate once the Constitution of J&K was enacted in 1957
Dwivedi: All the powers conferred under 370 ceased to operate when the constitution was made. In that context we have to keep in mind the object of 370 and commitments made.
Dwivedi: We always say that our framers were very wise. But when it comes to the commitments they made- we forget it.
Dwivedi refers to Iyengar's debate in Constituent Assembly: The initial part says that Art 370(1) provides for consultation and concurrence. The debates clearly says that this was an interim arrangement till the Constituent Assembly was made.
Dwivedi: The final decision was by the Constituent Assembly - with regard to a) the jurisdiction of union and parliament over Kashmir and b) the centre and the state relations
Dwivedi reads out from the Constituent Assembly debates.
Dwivedi: The word "interim arrangement" follows their elaboration. Neither the constituent assembly nor the legislative assembly is there. So who should we consult. We're forced to consult the govt till the Constituent Assembly comes. This leaves no room for doubt.
Dwivedi: All provisions of consultation and concurrence with govt of Kashmir cease to operate once the Constituent Assembly starts.
Dwivedi: All this argument that it has become permanent - we are giving meaning to the word 'temporary' used in the Constitutional provisions de hors the context.
Dwivedi: The Constituent Assembly is always regarded by us as the most august assembly. They were men who fully knew what Constitution means. When they say Kashmir should frame their own constitution, they couldn't have implied something else.
Dwivedi: All provisions of concurrence and consultation were interim till the Constituent Assembly was formed.
CJI: Which are the features of Art 370 which indicate that it ceases to exist post the formation of J&K constitution?
Dwivedi: 238 shall not apply in relation to 370. It has not been changed because there is no power to change it. 1952 onwards, clause (3) hasn't been used.
Dwivedi: Noone has deleted (1)(b)(i)- because there is no power to change that. Also see (1)(b)(ii).
CJI DY Chandrachud: Can we say that a speech made by an individual member of the Constituent Assembly, however weighty, represents a commitment by the nation to J&K? This would have a bearing on the interpretation of Constitution.
Dwivedi: Our thinking, which we have been tuned to think for last 70 years, is that one nation, one constitution. But where is that prescribed?
Dwivedi: When they gave this power of consultation and concurrence, it was in a peculiar situation, not beyond that.
CJI: After the Constituent Assembly took its decision in 1957, the dominion of India would have no power to apply any provisions of the Constitution?
Dwivedi: They would have all entries under the Union. I am not here to judge whether they were right or not, I'm telling you what intent can be culled out from the debates.
Dwivedi: We may not like it but all I'm showing is the intent. And can Article 370 be divorced from the intent?
Justice Kaul: We read an intent based on debates. How it transpired and worked out after that- what about that?
Dwivedi: Any amount of illegality of actions taken thereafter cannot justify the validity.
Justice Kaul: It's a little difficult to accept...that the Constituent Assembly debates amounted to an assurance that 370 dissolved itself...
Dwivedi: Debates indicate the intention behind 370 and scope of 370.
Justice Kaul: I thought you said that 370 didn't exist. That it should be read in a manner that 370 was intended to dissolve itself after Constituent Assembly completing.
Justice Kaul: As it has inadvertently remained on the statute, I feel very strongly about 370...I am putting to you the consequences of what would happen were you to accept what you're saying.
Dwivedi: I don't feel there would be any adverse consequences. That was the intent of the framers. They felt that Kashmiris may feel differently but they never imposed that. Still they allowed to make a constitution. Constitutions aren't made for a day.
Dwivedi: They're made till life time of a state or a nation. They can't be made for a day. They can't be seen as an interim measure.
CJI: The net consequence would be that the Constitution of India in its application to J&K would stand frozen as of 1957. Therefore, no further development in Indian constitution can at all apply to J&K according to you. How can that be accepted?
CJI: If Art 370 ceases to operate and Art 1 continues to operate - J&K is an integral part of India. Surely, the jurisdiction of every democratically elected institution is not excluded in... There has to be then a provision in Indian constitution which excludes its app to J&K.
Dwivedi: This may be our wish but look at the provisions.
CJI: Art 5 says that the legislative and executive powers of the State would extend to all matters except those with respect to which parliament has power to make laws. That means provisions of constitution of india. That postulates that Indian constitution does apply to J&K.
CJI: Unless we accept that Art 370 existed till 2019, there would be no trammel on the jurisdiction of parliament.
CJI: If we accept your argument, there would be no restraint on the power of parliament.
Justice Kaul: You're saying that all that happened for last few decades is wrong, noone understood the constitution.
Dwivedi: That's what your lordships did in Indra Sawhney.
Dwivedi (while concluding his arguments): I hope I have not ruffled too many feathers.
CJI: It's an intellectual exercise, a debate.
Sr Adv CU Singh commences his arguments.
Singh: I will only focus on the J&K Reorganization Act.
Singh: The bill for reorganization is presented by the President, tabled in the Rajya Sabha, passed by Rajya sabha on 5th August, then tabled in Lok Sabha on 6th August and simultaneously...Lok Sabha passes the bill.
Singh: The argument is that we can interchange states with UTs under Art 3 because of the 18th amendment. The 18th amendment was not applicable to J&K on 5th August 2019.
Singh: Part I has to be read conjointly and when you read it conjointly no power is provided under Art 3 to convert a state into a UT notwithstanding the two explanations.
Singh: The reorganization act apart from 370 is very very important for the people of J&K. If this interpretation of Art 3 is upheld, then it is the thin end of the wedge for democracy and federalism and the country as a whole.
Singh: Because then any party in power at the centre, which also happens to be a party in power in a state, can just convert the state by a simple majority in state legislature and simple majority in parliament.
Singh takes the bench to judgements pertaining to judicial scrutiny required for proclamations imposing President's Rule.
CJI: Is the conversion of the state into a UT- is it severable from the abrogation of Art 370 itself?
Singh: Yes, the two are seperate.
CJI: Was there a peculiar constitutional history attached to the creation of UTs and does that category remain frozen now?
CJI: Your argument will be in this way- what is the history of creation of UTs, does that category remain frozen in the sense that you can convert a UT into a state but not a state into a UT?
Singh: That is what has happened historically. By 4th August, 2019, there were 7 UTs left in India. All other UTs - once they became viable units- it was converted into a state.
Singh: 1905, Lord Curzon split the province of Bengal. That led to tremendous backlash against the British Raj. In 1911, Lord Harding was compelled to rescind that move.
Singh: This experience led to a declaration by the British parliament to devolve greater power on provinces of India.
Singh underlines the history of the exercise of converting a state into UT by referring to Government of India Act 1919.
CJI: So we must look at what was the position in the Government of India Act, how that transformed into the Constitution. That will give us an idea of how the UTs were created.
CJI: One thing is very clear. UTs came into being with the seventh amendment in 1956. That abrogated the distinction between Part A, B, C States and brought the entirety of India into states and UTs.
Singh: Yes, I'll show you the progression.
CJI: How were the provinces distributed in the Government of India act?
Singh: Please see Sec 5
CJI: Would be correct to say that when the Constitution was adopted on 26 Jan 1950, the territories were comprised of Part A states which consisted of erstwhile governor's provinces, Part B states which were Indian states that acceded to India, Part C States...
CJI: ...part C States that were the erstwhile Chief Commissioner's provinces and Part D states that were the other states.
Singh: Part C States also included indian states which were not able to be merged into a viable unit. For instance, Himachal Pradesh consisted of 30 Indian states. But because the province of Punjab came almost to the edge of Shimla and they automatically went as Part A state..
Singh: Himachal Pradesh with its 30 states still was not viable. So it was still Part C state.
The bench refers to the Constitution as it existed on 26 Jan 1950.
Singh: The point here is that right from the 1919 Act, the progression has consistently been towards greater self governance in the form of statehood
Singh: I submit that the conversion of state into a UT, if at all it could be done, could be done only under Art 368 because it clearly impinges on atleast 6-7 provisions. So it would require both special majority and ratification by more that 50%
Singh: For Ladakh, and J&K both- the exercise which has been done is one which is outside the purview of Art 3, even if it was rightly done. This is not the scope of Art 3.
Singh: The state comes with property, lands, consolidated funds, rights, contracts- it has absolutely sacrosanct powers under Art 73 read with Art 2.
The bench rises for lunch.
CJI DY Chandrachud: Why we're asking you to conclude early because with all the hard work done by your side, we have reached a point of mental saturation, not fatigue. We now have questions to be posed to other side...we will give you a little more time in rejoinder.
Singh: History of Art 3 and 4 emanating from 1919 and 1935 GOI Act shows that the power to alter boundaries, change names etc was always used to increase self representation and democratic self government. There was no case of retrogration.
Singh: I deal with the progression of history of UTs in my written submissions. I have set out a chart of how various territories change from Part C state to UTs to full states.
Singh: Today there are only 6 UTs if you keep aside J&K. Even Dadra and Nagar Haveli and Daman & Diu have been merged into one in 2020. They've been made into one UT.
Singh: These small non viable territories have remained - which aren't viable as states.
Singh: Art 1 states that India shall be a union of states. It was amended by 7th amendment when UTs were formed. But Art 1(1) and 1(2) were not amended. UTs were added in 1(3)(b).
Singh: The basic concept of India, that is Bharat, shall be a union of states- was maintained. Art 2 was maintained as it is.
Singh: Art 3 was not amended till the 18th amendment when those two explanations were inserted. Now the explanations have become the tail which is dragging the dog.
Singh: Now any permutation and combination is available to the parliament under Art 3.
Singh: This fiction that you can convert a State into UTs was never applied to the State of J&K. But keeping that aside, please see Art 294 and 295. These show how provinces were dealt with by the Constitution of India.
CJI: Mr Naphade has given us a list of all the consequences- such as J&K not having proportional representation, Ladakh not having representation...
Singh: I'll add to that.
Singh: 162 states that executive power of the state shall vest in the state in respect of List II and III.
Singh: This is subject to the provisions of the Constitution, not subject to laws made by the parliament.
Singh: 73 has a specific provision which states that union cannot exercise powers of the State.
Singh: By a simple ordinary majority and Art 3- all these constitutional rights, many of which are a part of the basic structure of the Constitution, are wiped out!
Singh: If Art 3 says that, for instance, it will not be introduced unless the president has done A,B, C, and it is apparent that the president hasn't done the same, and Rajya Sabha tables a bill it's not supposed to...that's what I'm referring to
Justice SK Kaul: You make your point but we will not go beyond 4 pm. You can ask your colleagues if it's fair to them.
CJI: We have to ration the time.
Singh: What was tabled and passed by Rajya Sabha was contrary to Art 3.
Sr Adv CU Singh concludes his arguments
Sr Adv Sanjay Parikh commences his arguments.
Parikh: The people of Kashmir came together and gave themselves a manifesto. They said they want a constitution and economic plan for Kashmir.
Parikh: The sovereignty rests with the people and they express their sovereignty in a specific way. This sovereignty was translated to J&K constitution.
Parikh: When there is a written constitution, the written constitution becomes supreme.
Parikh: The entire idea was that people wanted to have a democratic set up. Therefore, they came together, made a manifesto. That was given to Maharaja. This expression was translated to Constitution of J&K.
Parikh: In the book, Justice Anand says that autonomy and sovereignty are interchangeable. When we say autonomy, it also means sovereignty in people of J&K.
Parikh: If the constitution assembly comes to an end, there can be no concurrence.
Parikh: 356 was bought in by virtue of CO 71 in 1965. 357 was not adopted. It was only 356. One question which arises is what is the implication of 357 not being there?
CJI: So Art 357 is not been made applicable. And therefore, no parliament can assume to itself the power of the state legislature to enact law and cannot delegate it further to the president
Parikh: Yes
Parikh: 92 acts in a particular sphere and 356 acts in a different sphere altogether. You can reconcile it but they operate in different fields. Once you exercise power under 92 and say we're dissolving...
Parikh: Why did they resort to 92? Why not rely only on 356? The answer is that because after the proclamation, on the next date, he dissolves the assembly by resorting to S 53(2)(b) which could not have been done without aid and advice of council of ministers.
Parikh: They indirectly changed 370 itself.
Parikh: They changed the explanation without the prior recommendation of the Constituent Assembly.
Parikh: Recommendation of Constituent Assembly was interchanged by recommendation of parliament.
Parikh: What you cannot do directly, cannot be done indirectly.
Parikh: Your lords have asked Mr Sibal, why they resorted to interpretation clause. They did so because they couldn't have changed the article directly. So they did it indirectly.
Senior Advocate Parikh has concluded his arguments.
Sr Adv PC Sen: I want to highlight three things in a broad way-
1. Historical
2. Jurisprudential
3. In terms of constitutional ethos.
Sen: The region consisted of a Muslim majority. The population had a choice between going into Pakistan or India. Either be a majority in Pakistan or be a minority in India. They chose the latter.
Sen: I will show that if there is a conscious choice to remain a minority in a region in the backdrop of horrific violence of partition, when there is a constitutional promise in nature of Art 370, it should be strictly construed.
Sen reads from VP Menon's book.
Sen: When there is a conscious choice is made in this manner, it is all the more reason to strictly construe.
Sen cites SR Bommai on the issue of Federalism.
Sen: Asymmetrical federalism provides for protection against majoritarianism. Our constitution is also anti-majoritarianism.
Sen: What are the limits of a constitutionally vested power? Liberty ends where the other man's nose begins. So the moment there is a fundamental constitutional principle, there must be a limit.
Sen: If we're talking about anti-majoritarian rights, there is the LGBTQ+ judgments coming, there is a devolution which is taking place.
Sen: If one were to do away with this thing which involves historically a religious minority, that would be a regressive step.
Sen: There is no material on why 356 was imposed. But the material that already exists on record- it says that peace, security, effective governance based on rule of law, and upholding principles of equality, J&K rises above a number of States.
Sen: This is in the NITI Aayog report.
Sen: If Kashmir was a leader in these areas, where was the need for 356?
Sen: Another anomaly is that CO 273 abolishes the legislature of the state. Just before this CO 272 was passed and it applies all provisions of the Constitution. When you abolish the legislative council it has to be as per A 169 of Constitution
Sen: And that already stands applied. Once that is applied, it can't be done away by this Act.
Sen concludes his arguments.
Sr Adv Nitya Ramakrishnan commences her arguments.
Ramakrishnan: I was heading the government at the time of Governor's rule. I have held govt twice before. I suggest a much more representative will...
Ramakrishnan: I also represent petitioners where Mr Ramachandran was appearing.
Counsel: This WP was filed by 6 people. Two of them withdrew. Petitioner 1 - Javed Bhatt, when he engaged, he was told Sr Adv Raju Ramachandran would be arguing the matter.
Counsel: When he got to know that he had withdrawn from the matter, he contacted a senior lawyer from Kashmir, Mr Muzaffar Hussain Beig who...
Sr Adv Nitya: I don't know any of this. I am arguing for PDP now. If any of this is here, my lords can hear as impleadment..
Counsel: Mr Beig will argue with permission of my lords
CJI: Ordinarily there is no difficulty but when the entire group of petitioners is there, we presume that they're sailing together.
CJI: So one lawyer would appear for all petitioners. For diff respondents, different lawyers can appear.
Sr Adv Nitya: I don't want to argue for them. I'm arguing for PDP.
CJI: When a group of petitions come together, one lawyer appears for all. We are more than willing to hear Mr Beig's perspective but Mr Javed Bhatt will have to withdraw from this petition and can come as an intervenor.
Ramakrishnan: First point is that integration is neither a linear concept nor a quantitative concept. There is a spoken and unspoken assumption that Art 370 is temporary in anticipation of some greater...
CJI: Can you put down everything on one page? So that we have clarity on your submissions.
CJI: Dr Guruswamy, we won't hear on delimitation. Delimitation is not an issue at all. We'll request you to also formulate a page on internal sovereignty.
The bench rises for the day.