New Delhi: On the fifth day of the Supreme Court hearing on Article 370, Senior Advocate Zaffar Shah presented arguments outlining the historical context and legal implications of Article 370 and emphasized that the genesis of the framing of the Constitution of Jammu and Kashmir was rooted in the Instrument of Accession (IoA) and the 1948 proclamation, leading to the establishment of a unique constitutional framework for the J&K state.
He told court that Article 370 placed unique limitations on the power of Parliament, requiring the concurrence of the state government, effectively reflecting the will of the people via the council of elected ministers.
Advocate Shah posed a thought-provoking question to the court, questioning the rationale behind imposing restrictions on Parliament's plenary power when Jammu and Kashmir had already acceded to India.
He pointed out that this special treatment was due to the absence of a merger agreement, leading to the necessity to maintain the region's autonomy.
Shah asserted that Article 370 subsumed the residual power of the Maharaja.
He argued that the complete integration of Jammu and Kashmir required the abolition of Article 370, the Instrument of Accession, and the execution of a merger agreement.
Here is the detailed hearing:
Sr Adv Zaffar Shah: The genesis of framing of the constitution of J&K is rooted in the nature of the IoA as well as the proclamation of 1948. That's why there was a constitution for the state
Shah: The residual power of the Maharaja came to be subsumed by the Article 370.
Shah: The next question would be the exercise of this power...They thought since we don't have a Maharaja any longer, who would go in like a substitute of merger agreement? A mechanism was formed in 370- that it would be entirely for the people of J&K to integrate with India.
Shah: The power to make laws was the most important power the Maharaja had retained. That's why 370 said that all provisions of Constitution are excluded, except 370 itself. Everything excluded, nothing else applies to State of J&K.
Shah: First part of 370 talks of application of laws- that application subject to one condition that since i donated some power in IoA- power of defence, communication, foreign affairs, there would be no more donation.
Shah: Therefore, consultation is mentioned. Simple consultation, just talking. But for application of it, the word concurrence was used. Both had to agree here.
Shah: They had to agree in respect of the entry under which the parliament had power to make laws.
Shah: But at the same time, you cannot have an extension of the law made by the parliament unless the relevant supporting provisional Constitutional entry is also made applicable.
Shah: It is not possible that the parliament had a law but there is no supporting provision of the constitution applicable to J&K which would support extension of that law to the State.
Shah: So there were limitations provided in 370 itself with regard to the power of parliament to make laws for J&K.
Shah: First limitation was that if you're relating any subject to List I or List III, which is not a subject covered by IoA, then you need concurrence of the govt of state. That means concurrence of people of the state via the council of ministers.
Shah: Why this special treatment for J&K? Simply because there was no merger agreement. Therefore, this autonomy had to be maintained.
Shah: One where you want to apply any entry, when you want to apply any constitutional provision- you need concurrence, except when it is mentioned in IoA.
Shah: So it means that it involves the President on one side and the Govt of J&K on another side. This is only with respect to Union and Concurrent list.
Shah: Why is there a limitation on parliament? Parliament has a plenary power, it can make laws. Despite having acceded with India, the mechanism was different. Because it had subsumed the residuary authority that Maharaja had.
Shah: We believe that we have constitutional autonomy under the Constitution of India itself. That was taken away. We're contending that you cannot take away the autonomy of the State.
Shah: This autonomy comes from IoA and Article 370.
Shah: Clause (d) doesn't talk of the power to make law under the list. It talks of provisions of Constitution of India "as such".
Shah: In order to maintain constitutional autonomy, power is also given to the government of the State.
Shah: How that is to be done? That's between the two governments.
Shah: Constitutionally speaking, there is no power vested in central government or in President to make any laws in this State. No consultation is required with any other state, no concurrence is required with any other state.
Shah: The constitutional autonomy of the State is embedded in Article 370.
Shah: It says "the article ceases to be operative". So the president is given the power to deoperationalise the article.
Shah: We need to go back in time. Without that, it's not possible to apply certain standards as we understand in 2023. This is a situation which has its roots in history. We need to understand how and why!
Shah: Gradually, the government has been chipping the power of the State legislature. My legislature, in 1950, had the total power of making laws except three subjects. But what happens subsequent to 370?
Shah: 370 says you can concur with the UOI and request them please apply this entry.
Shah: Who is doing it? It's the govt of the state which is doing it and taking the power of legislature of the State to legislate.
Justice Kaul: All that must have been done with either consultation or in concurrence with State government?
Shah: I'm saying so. The flipside is that the state legislature lost power.
Justice Kaul: Saying that 370 is permanent is really difficult. Suppose the state itself says that we want all laws to apply. Then where does 370 goes? Then we really come back to the process. Was this process permissible of not?
Shah: We might have different perceptions of it. If we don't want 370, answer of this question would depend on- as on today, on 5th August 2019, was it temporary? Or had it become permanent- because the machinery was not available to remove it.
Justice Kaul: If that machinery was to be recreated, then 370 could be removed?
Shah: That machinery is the constituent assembly.
Justice Kaul: They utilised the machinery or 370 to remove whatever was left in 370. That is what has happened.
Shah: If you want to completely integrate, we have to get rid of IoA, 370, and execute a merger agreement. We go back to the roots.
Justice Kaul: 370 etc were historical developments that too place.
Justice Kaul: The effectiveness of 370 in terms of preserving the rights in the state to lay down the law shifted. Something still remained. That something which remained, they did it by process of 370. Whether the process was right or wrong is the question.
Justice Kaul: It all comes down to whether the process was right.
Justice Kaul: Mr Gopal Subramanium's argument was that 370 is a medium of interaction. Therefore, that's the process you must follow. If we go back to it historically - that it must be abrogated then, how does it merge?
Justice Kaul: Under 370, which was the medium of communication between centre and state, a methodology was established. That truly if you wanted to do it, you could.
Justice Kaul: That is there. It has been done. Historically too if you see it has been done over a period of time. Something still remained. That, what remained, they took away by a similar process that was done earlier. But process was flawed as there was no assembly etc.
Justice Khanna: What has been given here in Article 370 is two fold- one with regard the Union and Concurrent list- they say certain rights are given to state legislature.
Justice Khanna: Two, with regard to provisions of constitution, gradually, the provisions of constitution can be made applicable.
Justice Khanna: Is our understanding correct?
Shah: Yes
Shah: Did we proceed on an assumption that this Constituent Assembly of J&K will recommend to the UOI to do away with 370 so it completely intergrates?
J Khanna: I have some reservation with the use of words "completely integrates". The integration has taken place as per Art 1.
CJI: One thing is very clear that the there was no conditional surrender of sovereignty of J&K with India. Surrender of sovereignty was absolutely complete. Once sovereignty was absolutely, fully vested in India, the only restrains would be on power of parliament to enact laws.
CJI: In 1972, Art 248 was amended in relation to its app to J&K. 248 was substituted. Now it says parliament has exclusive powers to make any laws on prevention of activities towards disrupting sovereignty of India. So no vestige of sovereignty was retained post IoA.
CJI: Is it correct that Art 248 as it is applicable to J&K immediately before 5th August 2019 contains an absolutely clear and unequivocal acceptance of sovereignty of India?
Shah: The legal question is this- this was a general IoA applicable to all states- when you accede, do you transfer sovereignty to UOI or not. They said no. You transfer it only by terms of merger agreement.
Justice Khanna: What is superior? The constitution of India?
CJI: Take the case of any other Indian state apart from J&K. There are restraints on power of parliament to make laws for any states for subjects on state lists. The distribution of the legislative powers does not affect that the sovereignty vests in India.
CJI: Restrain on power to enact legislation is implicit in the scheme or the frame of the constitution. Because we don't have unitary state. But does that retract from sovereignty? No. It's just a fetter on parliament.
CJI: Once Article 1 says that India shall be a Union of States and that includes the State of J&K, transfer of sovereignty was complete. We cannot read the post Article 370 constitution as somehow a document which retains some element of sovereignty in J&K.
CJI: There are provisions in the Constitution which apply with concurrence of states also. See Article 249.
CJI: Concurrence is not something unique only to the relationship with J&K. There are various shades of concurrence required in the Constitution. That doesn't reflect on sovereignty of the Union. These are fetters.
CJI: See 246A, when it came in as a result of the GST amendment. This is a classic case where the GOI or parliament can do nothing without the concurrence of states. 246A has completely redefined our notions of sovereignty as states are given vital role in financial matters.
CJI: Our notions of parliamentary exclusion from states has been an evolving exercise. But one thing is clear, sovereignty was ceded completely to UOI.
Shah: What about the constitutional provisions for which concurrence is required and the President is to apply it with modifications after concurrence. Whether such a provision also exists for other states?
Shah: For every kind of legislation, concurrence has been taken.
Shah: The 1954 order placed an embargo on it, that till the state legislature would recommend from changing the name, you cannot do so.
Shah: We are only claiming the constitutional autonomy which was taken from us. How do we get that back? By demonstrating to this court what we had.
Shah: I still have the constitutional autonomy, maybe little. Maybe it's a skeleton as Justice Kaul said. But somebody felt that the skeleton was disturbing him. Therefore, he got it off.
Shah: We are protecting the individuals who live in the State of J&K as permanent residents. That is protected. It was protected earlier also in terms of the notification of 1927.
Shah: Interestingly, at that point of time, an agitation was raised by a community. Unfortunately they left us. And we owe a lot to that community because we were taught by them. They agitated because they were the educated class.
Shah: The king would get people from Punjab and other areas. So they said they need jobs and agitated. That resulted in a notification of 1927. It restricted appointment to permanent residents.
Shah: When that is protected- for several reasons. One could be for protection of jobs and properties. Second also could be that people who live here should have some rights and privileges.
Shah: Then it could be to keep the state intact. We are three regions- Ladakh, Kashmir, Jammu. Maharaja thought that bring all the three together. We then became a state.
Shah: What is done now? It has been divided. The people are divided. Part of it is with Pakistan, part of it with China- about 2000 kms in Aksai Chan, remaining part is here. We're being sandwiched by all forces being applied.
Shah: We need to be united with the three regions. We need to live how we were living. The government did give their concurrence from time to time. But there are some laws they've not agreed to.
Shah: I will give you a long list of entries which apply to us with modifications and exceptions. Those modifications carve out the constitutional position, the constitutional autonomy that we enjoy.
Shah: So the law of preventive detention can be enacted only by state legislature, not parliament. Some of the laws maybe duplicate central laws. What is important is the power to make laws.
Shah: We say that this power exists only in the state legislature- to make laws. Laws may be the same. J&K has RPC and India has IPC. Provisions may be same but the power to amend that law- that power gives us constitutional autonomy.
Shah: There are orders which go to the very root of the matter and they continue to remain as they are till date. They have not been diluted.
CJI: Can you tell us, on the eve of the CO of 2019, which were the key provisions of the constitution to which an exception still existed in relation to J&K. That will give us the net position on that day.
Shah: Let's see Entry 97. Who had the residuary power?
CJI: Interestingly, both the state list and the concurrent list were deleted in application to the state of J&K.
CJI: Basically what happened was in relation to J&K, you only had the union list which was existing in so far as it applied to J&K. The entire state list and concurrent list was deleted.
CJI: Your contention is that there was a substantive degree of autonomy which wasn't just in relation of making laws but also with other provisions of constitution.
Shah: My legislature lost the power to make laws- whatever little power I had.
CJI: See that Entry 97 is completely omitted. State list and concurrent list is omitted. So the net result in 1954 was parliament had power to enact laws with respect to some entries in the Union list.
CJI: This is the autonomy which you're saying
Shah: If your lordships are satisfied that on 4 August there was constitutional autonomy, what was its quantum and how much it was is a matter of detail.
CJI: You can give us the net position that stood on 4th August.
Shah: The Constituent Assembly thought that the Constituent Assembly of the state would recommend application of the constitution of India directly to state of J&K. They proceeded on that assumption.
Shah: This position continued till 1957.
Shah: The power vested with the people as under IoA, as under proclamation of Maharaja, and as under the letter of 27 Oct 1947 was why the Constitution of J&K was formed.
Shah: Since the fate of the state was uncertain, they left it like that- it could or could not be a part of union. Meanwhile, the Constitution of state was made.
Shah: What is contained in the Constitution of J&K could not also be contained in the Constitution of India. So all those provisions of Constitution of India in conflict with J&K constitution were not made applicable to J&K
Shah: What did the Constituent Assembly ensure? It ensured that J&K shall remain an integral part of India. Second thing it ensured that the provisions of the Constitution of India will be made applicable to J&K.
Shah: Provisions of DPSPs doesn't apply to J&K because the state has its own directive principles
Shah: No power vests in any authority to amend the constitution whether it is 92 or 356.
Shah: What is sought to be done in terms of this is- they do away with the Constitution and they do away with IoA.
Shah: Article 370 and its explanation defines what is meant by the govt of a state. Govt of state can exist without council of ministers. But what 370 envisages is a govt of a state aided and advised by the council of ministers.
Shah: This is an extremely important part of the power to be exercised by the governor as the head of the state in making any kind of recommendation to the president.
Shah: In terms of the presidential notification, the president of India assumes to himself the powers of the governor not only under the constitution of India but also the constitution of J&K.
Shah: When he assumes to himself the jurisdiction that I'm the governor, I fail to understand who could make the recommendation under 356. The opening word of CO 272 is "the president in concurrence with govt of j&k..."
Shah: This means the govt which has council of ministers in place.
Shah: What is the legal value entrapped in 370? Council of ministers- doesn't it show the political presence of people? Doesn't it show that the representatives of people are present? Doesn't it show an element of democracy?
Shah: We need to interpret 370 on basis of the purpose it has.
CJI: Can you crystallise your arguments on this aspect?
Shah: 1. CO 272 is notified at a stage when the presidential order under 356 is in operation.
2. The President under notification dated 19 Dec 2018 had assumed to himself powers of governor of J&K.
Shah: 3. CO 272 issued with concurrence of govt of J&K which meant a govt where council of ministers is in place
4. All provisions of Indian constitution are made applicable to J&K which couldn't be done as it hadn't been done by Constituent Assembly or by J&K govt in 69 years.
Shah: Entire constitution right from Art 2 to 396 would apply to us. In that, 368 would also apply
Shah: Someone thought that we'll kill the hen and get all the golden eggs.
Shah: You use 367, alter 370, take it back and then you kill 367 itself. It's not a bonafide action. It's not legitimate.
Shah: 370 as a matter of fact, is a case of where the government wants to do something but there is a constitutional obstacle.
Dhavan: India is one of the most diverse countroes and it is reflected in the Indian constitution and I will show there are many such articles where concurrence of State is required. This case will impact others as well like whether there can be reservation for Bhutias etc which is completely not permissible. This court had held that historical promises made to Sikkim has to be honoured and our Constitution is replete with promises to the people. Let (us read) Article 3 and Article 4. It is the Achilles heel of the Constitution.
Dhavan: Here we see creation of territory under Article 3 and Article 4 when you convert a state into a UT. It will be the only occasion in the history of India that this has been done. We talk of transformative constitutionalism. So for Ladakh, provision similar to Article 240 will apply and J&K becomes a UT with limitations in J&K Reorganisation act. This was done by a circuitous procedure and you have converted through Article 3 and 4.. 2 UTs - one with representative form of government and the other with none.
(Inputs From Live Law)