Srinagar/New Delhi: On the ninth day of the Article 370 hearing, four advocates presented their arguments against the abrogation of Article 370 of the Indian Constitution with Senior Advocate Nitya Ramakrishnan arguing against an assumption that Article 370 was temporary and meant for greater integration is fallacious.
She contended that integration is not merely a measure of central control but a complex concept based on democratic principles.
Ramakrishnan argued that the people of Jammu and Kashmir shared sovereignty with the rest of India, and Article 370 recognized this unique arrangement.
She explained the historical context of the region's accession to India and stressed that the will of the people of Jammu and Kashmir was integral to Article 370.
She argued that the power to make changes to Article 370 rested solely with a Constituent Assembly, and no agency of the centre could usurp this authority.
Advocate Menaka Guruswamy followed, discussing the founding intention behind Article 370 and how it intertwined with the state's unique autonomy.
She said that the abrogation of Article 370 had violated the autonomy guaranteed to Jammu and Kashmir by its own constitution. She referred to specific sections of the Jammu and Kashmir Constitution to support her argument.
Additional intervenors further reiterated concerns about the impact of the abrogation on federalism and autonomy. However, on behalf of the central govt- solicitor general Tushar Mehta intervened saying that the government has no intention of changing special provisions in the Constitution applicable to the northeastern states of the country under article 371 as it comes under special provision unlike 370 which was temporary.
The Supreme Court said that it would not go into addressing apprehensions when the Centre has clarified its position. It then disposed of an interlocutory application that raised these concerns.
Following his dismissal, Senior Advocate Gopal Sankarnarayanan concluded the arguments on behalf of the petitioners, asserting that Article 370 was not intended to be a permanent provision. He contended that the Constituent Assembly of Jammu and Kashmir had a specific role in deciding the fate of Article 370, and the current actions were unconstitutional.
During the hearing, discussions also touched upon the comparison between the actions taken in the Indian controlled Kashmir with the Pakistan-controlled Kashmir.
The bench raised questions about whether the interpretation of Article 370 should be guided by its text and its relationship with the Constituent Assembly's work.
The hearing ended with the court acknowledging the arguments presented and adjourning the case for the next day when the Union's legal representatives would present their side of the case.
Detailed hearing:
Senior Advocate Nitya Ramakrishnan continues agreement.
Ramakrishnan: The spoken or unspoken assumption is that Art 370 is temporary, lying for a greater integration. I'm saying that the view is fallacious.
Ramakrishnan: Integration is not a measure of how much control the centre has. It is not a function of central control or power. It would be wrong to say that people in UTs are more integrated than people in a VI schedule area. That's not how our democracy works.
Ramakrishnan: Once they acceded, they became Indians. Even before the Sikh regiment reached Srinagar, it was the Kashmiris in the valley who fought the intruders. Many of them martyred.
Ramakrishnan: We are not waiting for them to integrate anymore. There is a democratic argument to be made of shared sovereignty.
Ramakrishnan: Political sovereignty vests in the people. The people of J&K became the sharers of Indian sovereignty as political sovereigns.
Ramakrishnan: What Art 370 recognises is the mode of governance because the shared sovereignty of the people of J&K, the merging of their democratic will, with that of the rest of India- in that sense there is a democratic pact entered into which is a part of 370.
Ramakrishnan: Art 370 reflects and incorporates an entrustment of popular sovereignty to a divisible and shared legal sovereignty between the centre and the state.
It has to emirate through constituent assembly
Ramakrishnan: Article 370 also reflects and recognises the historical and geopolitical background of a democratic coming together of the will of the people- the will of people of J&K and the will of people of India.
Ramakrishnan: Will of people of J&K permeates every part of Article 370. I don't endorse the view that the whole article has come to an end. 370(1) survives.
Centre cannot take away state powers.
Ramakrishnan: A governor not advised by the council of ministers is not recognised by 370. Therefore, any CO issued during the president's rule is not competent.
Ramakrishnan: I checked. In 70 years, all of five COs have been issued during president's rule or governor's rule. One in 1986 and four extending the term of presidential proclamation in the year between '90-96.
Ramakrishnan: Function is a duty. Power is a discretion. It's a sui generis power given to a responsible state government. It cannot be taken over under Article 356 which is subservient to Article 370.
Ramakrishnan: Even a responsible state government's consent will not suffice for changing the terms of the Article. It has to emanate directly from a constituent assembly. A constituent assembly signifies and exclusive agency, exclusively devoted for representation of J&K.
Ramakrishnan: The recommendation has to emanate from an agency which is equal in mandate and stature.
Ramakrishnan: Today, after 1957, there is no agency which is equal to Constituent Assembly of J&K.
Ramakrishnan: Some thought and sensitivity and democratic stirrings are required to think of an agency which could express this will. But one thing is clear- it cannot be any agency of the centre.
Ramakrishnan: Will of the people of J&K is integral to the mode of governance specified in Art 370. A process which has systematically with mal intent erased the will of the people can never legitimately affect Article 370.
Ramakrishnan provides with a brief run up of facts.
Ramakrishnan: Governor's rule was imposed because one party had withdrawn and no other political party was ready to form the government. This is why the rule was imposed, not because of any security issue or danger.
Ramakrishnan: Then what earthly reason had the governor to dissolve the house within 30 mins of two political saying that we're ready to form the government?
Ramakrishnan: 56 out of 87 MPs stake the claim. Governor is not there. It is on record that secretary has acknowledged the WhatsApp message. He doesn't answer phone, fax doesn't go through. He is informed on WhatsApp and a public tweet tagging governor is issued.
Ramakrishnan: By 8.16 this is done and by 8.57 we are notified that the house has been dissolved? What earthly reason does the governor have to dissolve?
Ramakrishnan: In this state or affairs, there is a proclamation of president's rule and the President usurps the power of the State government under 370(1). It is not permissible under Art 356 because he can only take over functions of state govt.
Ramakrishnan: This power under 356 which is really subject to a post appraisal by state legislature- this power is ironically used to destroy all possibilities of a state legislature.
Ramakrishnan: This is a self proclaimed agent through a series of proxies strangling the principle and telling your lordships that this not murder but suicide.
Ramakrishnan: Here is a Governor who gives video interviews. I'm aware that a newspaper report is not evidence on itself. But this is a video interview given by the Governor who dissolved the public assembly.
Ramakrishnan: He gave this interview to the Wire.
SG Mehta: This is an impleadment filed in 2022. Never listed, first time being listed. That's why I'm intervening.
Ramakrishnan reads from the transcript of the Wire interview given by Satyapal Malik (governor of J&K)
Ramakrishnan: He had no idea on the night of August 4 of what was coming. And he has given concurrence like this?
Ramakrishnan: The whole world was aware of this. We cannot sit in an ivory tower and behave that it never happened.
Ramakrishnan: What they have done by CO 272, it leads to a semantic absurdity. Please look at Article 370.
Ramakrishnan: 370(3) says Constituent Assembly referred to in 370(2). 370(2) refers to a Constituent Assembly for purpose of framing the Constitution of State. Now I'm making an argument purely on elementary logic.
Ramakrishnan: There is a reference to a constituent assembly in 370(2). It refers to a constituent assembly for purpose of framing the constitution. So there is a relationship of identity between the constituent assembly in clauses (2) and (3).
Senior Advocate Nitya Ramakrishnan concludes her arguments.
Ramakrishnan: Even if J&K flows with milk and honey, the argument that in order to secure the people their rights we have to destroy their statehood- that cannot be counted.
Senior Advocate Menaka Guruswamy commences her arguments.
Guruswamy: Yesterday, my lords posed a question to Mr Dwivedi - can you look to the statement of a drafter, a member of the constituent assembly, and accord it as being enforceable on the will of the people.
Guruswamy: It is a particularly important question because in this case there is not one but two constituent bodies. In many ways it is unique. It poses upon us a seminal constitutional question- can constitution be altered in ways opposed to the founders intention?
Guruswamy: I am on the founders constitutional intention. When we think of this country's founding, at the time of partition, 46-49 hours the Assembly was drafting the constitution. We know what was happening in J&K.
Guruswamy: India's first prime minister in a speech in Hindi said that we're a nation whose land of this nation is strewn with blood...that is our constitutional founding.
Guruswamy: There are certain seminal founding moments for constitutions. They're imp because this court has walked the path of transformative & expansive constitutional interpretation. Your jurisprudential moorings derive legitimacy from our drafters' constitutional intention.
Guruswamy: If my lords had chosen a different path since 1970s- of minimalist interpretation, of limited review- then we would not have to worry about constitution's founding moments.
Guruswamy: But your lordships have embarked upon this methodology of expansive and transformative constitutionalism. And thank heavens for that! Because that goes back to the needs of our difficult foundings.
Guruswamy: It was envisaged by our founders for the State of J&K integrated with Union of India. It's not just Art 1 and 370 which is part of that constitutional intention. It's much more than that. It's the specific Provisions of J&K Constitution - Sections 4 and 5.
Guruswamy: Such territorial integrity was not promised to any other state. This was all part of the founding intention
Guruswamy: It is not simply about that Constituent Assembly but it is about the promises of our Constituent Assembly.
Guruswamy: The abrogation of Article 370 has vitiated the unique internal sovereignty guaranteed by both J&K Constitution and India.
Guruswamy refers to Sections 4 and 5 of the J&K Constitution.
Guruswamy: Keeping the residuary powers of state with J&K is unique to the State of J&K...this brand of sovereignty is unique to J&K.
Guruswamy refers to the Constituent Assembly debates.
Guruswamy: The abrogation of Article 370 and the subsequent reorganisation act- by abolishing the bicameralism legislature of the state has further violated the unique autonomy secured by the State of J&K.
Guruswamy refers to Sections 46, 47, and 50 of the Constitution of J&K.
Guruswamy: Section 47 and 50 provide for composition of legislative assembly. The composition speaks to unique, regional body of J&K. That unique, regional body was only prescribed to J&K.
Guruswamy refers to Article 171 of the Indian Constitution.
Guruswamy: The idea of A 171 is not to provide for representation by regions. But only to have specialists.
Guruswamy: There was a reason this was done- to recognise the state, to bring diversity within the state...There was an understanding that there would be regional representation to hold the three regions together- Jammu, Kashmir, and Ladakh.
Guruswamy: Article 169 provides mechanism of evolution of legislative council.
Guruswamy: Prior to the impugned actions, Ladakh had 4 MLAs and two MSCs. The Ladakh Autonomous Hills Development Council Act provided for the hills development councils. That has been rendered null.
Senior Advocate Guruswamy concludes her arguments.
Adv Manish Tiwari (appearing for intervenor): The underlying principle of autonomy under Article 370 and Article 371 is more or less the same. So therefore, what your lordships will hold in this matter, will have implications on Article 371.
Tiwari: The constitution of india in addition to being being a politico-legal compact, also served as a national security instrumentality in terms of unifying the periphery of India to the interland.
Tiwari: National security is not merely about the use of hard power of the state. Independent India decided to manage its periphery through Constitutional guarantees. Because we were building a republic.
Tiwari: That is how Art 370, which applies to J&K, Art 371, the six sub parts which apply to North East and the sixth schedule of Constitution which applies to Assam, Tripura, Meghalaya, becomes relevant in this matter
Tiwari: Even a slight apprehension in the periphery of India can have serious implications. Your lordships are currently dealing with one such situation in Manipur.
SG Mehta: I have instructions to say this. We must understand the difference between temporary provision which is Article 370 and special provisions with regards to the north east.
SG Mehta: The Central government has no intention to touch any part which gives special provisions to North East and other regions. This submission will have a very potential mischief. There is no apprehension and there is no need to create apprehension.
Tiwari: I was not referring to the current central government. I was referring to the principle at state.
CJI: Why should we deal with anything in anticipation or apprehension? We are dealing with a specific provision of Art 370. We don't have to expand the ambit on impact.
Justice Kaul: This is a special provision. 370 is stated to be a temporary provision.
CJI: When as a constitutional principle the SG has informed us that the govt has no such intention why should we apprehend this at all?
CJI: We should not enter that territory at all. The impact of abrogation - that point has been made. Let's not focus on North East like this. The apprehensions are allayed by the statement of the central government.
Justice Gavai: Special Provisions are there in state of Maharashtra also. But we're only interpreting 370 right now.
CJI: You have nothing to say on Article 370. So why should we hear?...We will close your IA by taking submission of SG on record.
CJI: The applicant urging their submissions through Mr Tiwari has urged that apart from the provisions contained in Part XXI of the Constitution pertaining to J&K, there are special provisions governing the North east.
CJI: Hence, it is submitted that the interpretation by this court in 370 would impact other provisions. SG has submitted on specific instructions of Union that Union Government has no intention to affect any of the special provisions applicable to North east or any part of India
CJI: The reference of this case is confined to Aticle 370. There is no commonality of interest in the IA and the case being heard. In any event, SG's statement on behad of Union, allays any apprehension in this regard. Thus, the IA stands disposed off.
Adv Warisha Farasat, appearing for intervenors, argues on the unique federalism of India.
Farasat: My lords three former CMs were in detention, most of your legislative assembly, the will of the people is exercised by the assembly, most were in some form of detention under the Public Safety Act or under 107, 105. It is laughable!
Farasat: In Delhi, if entire polity and all of the politicians, who have actually supported, been legislative members are put in this manner...this is malice in law. We determine by actions surrounding the abrogation.
Farasat concludes her arguments.
Another intervenor commences his arguments.
Counsel: 370 is a self contained provision...IoA is a part of the Article 370...370 gives Constitutional expression to the IoA.
A party in person appears in the matter.
Petitioner: I teach Indian Polity to students in J&K. It is very difficult for me and people like me when we teach this beautiful constitution and beautiful democracy.
Petitioner: The students ask me- are we really a democracy post August 2019? It is very difficult for me to answer.
Petitioner: In the midnight, curfews were imposed, leaders sent to jail.
CJI: Please formulate your points. Other counsels are waiting. Mr Sankarnarayanan has been waiting for 12 days.
Another intervenor appears before the court.
Counsel: This is just a political gimmick. That is the pith and substance of my arguments.
Counsel: There is something more than bread and butter for people. People of J&K were born with the idea that they had some special rights...
Senior Advocate Gopal Sankarnarayanan is the final counsel on the petitioner's side.
The bench agrees to hear him from 2-2.30 pm.
The bench rises for lunch.
Sr Adv Gopal Sankarnarayanan: I express my deepest gratitude for your immense patience you have shown all of us.
Sankarnarayanan: This case, the way we see it, is not only a case for Kashmiris. It actually opens a vista to many multifarious abuses that the executive can heap on the Constitution if the means they adopted was to be utilised in future.
Sankarnarayanan: There is a principle which states that whenever anything that is approaching or encroaching upon our rights starts, you must nip it in the bud. This is an encroachment on something we cherish the most- our constitution. Kashmir is just an avenue.
Sankarnarayanan: The CJI yesterday asked for background of UTs. In NDMC, Paras 8-19, the entire background and sequence of how we came up with UTs is there.
Sankarnarayanan: Mr Dwivedi made arguments on A 370 not surviving. Your lordships had said that Constitutional practice trumps that. This is the exact argument taken before this bench. Your lordships passed order in Shah Faisal matter when reference was sought.
Sankarnarayanan: Sampat Prakash squarely rejected it. The reasoning of Sampat Prakash was that CO 44 is proof of the fact that the order itself says that we allow 370 to stand except the modification. It was a conscious choice by Constituent Assembly.
Sankarnarayanan: There was an argument by Mr Parikh and he said that part of Art 357 doesn't apply. In fact, it does.
Sankarnarayanan: There is a little bit of history and a previous attempt in the Parliament to omit Art 370. There were debates on this. Mr Gulzari Lal Nanda, who was the home minister between his two tenures as interim PM, he said that there is no way we can repeal Article370.
Sankarnarayanan: This history shows from that day till now, interpretation of 370 was consistent.
Sankarnarayanan: Suppose you have some government at the Centre which has a sympathy for secession and say that we will artificially create an assembly to be treated as a Constituent Assembly and they will take the decision on whether 370(3) can be utilised to abrogate 370.
CJI: Art 1 is a permanent feature of the Constitution. Why did Art 370(1) contain a specific reference that A 1 applies? Reason was that during that interim period when there was a power to modify provisions related to IoA, Art 1 could also have been modified with concurrence.
CJI: During that period, when other provisions could be modified, it was made clear that Art 1 could not be modified. This is a clear indicator of the fact that 370 was never intended to be permanent.
CJI: Your argument could be that once after the Constituent Assembly arrived at the understanding, something further was to be left to the Indian Constitution.
CJI: We followed the experience of the COs. GOI could get the work of the govt done, J&K could have beneficial provisions apply to them...this seems to have been a very convenient procedure - having COs to apply the constitution to J&K and progressively bring J&K into mainstream
CJI: These were, in that sense, pro-tem provisions until further actions could be taken
Sankarnarayanan: On this point, the question I ask is that 370(3) provides "Notwithstanding anything in the foregoing provisions of this Article". That segues with what CJI said. What was the need for these words? What provisions were standing in the way of 370(3)?
Sankarnarayanan: It appears 370(1) has excluded the possibility of Art 1 and Art 370- being in any way the subject matter of orders under 370(1)(d).
Sankarnarayanan: The Constituent Assembly sitting in 1952 is faced with a choice which is provided under 370(3). Which is, you have to decide whether you want to keep 370 alive in some form or jump off the board.
Sankarnarayanan: If they made the other choice, the impact on Art 1 would be that Art 1 wouldn't apply to them. That's the danger of recreating a constituent assembly at any point.
Sankarnarayanan: There is no way of incremental modifications being made by virtue of resurrecting Constituent Assembly. This case is about whether the power exists and two, whether the procedure has been followed.
Sankarnarayanan: The exercise of the power and manner of exercise of power is the most fraudulent exercise we have seen in this country since 1970.
Sankarnarayanan cites Madhavrao Scindia judgement.
Sankarnarayanan: The executive is not the sovereign. The people are the sovereigns in our constitution. Let there be no doubt about that.
Sankarnarayanan: See the orders they passed under 356. They suspend the state legislature. Suspend has only one meaning - it is temporary. What is the effect of that order today? The legislative assembly is gone, poof!
Sankarnarayanan: There is one aspect which is interesting and disturbing at the same time. In 2018, coincidentally, just a month before the events transpired, our friends across the border did something unusual.
Sankarnarayanan: Pakistan occupied Kashmir and Gilgit Baltistan- are the two areas which Pakistan claims as its own.
Sankarnarayanan: In their constitution, there is no reference to that as a part of their territory. They still harbour hopes that there will be some accession of Kashmir with them.
Sankarnarayanan: In 2018, Pakistan decided to pass an amendment to their 1974 interim constitution- as they call it 'Azad Kashmir'.
Sankarnarayanan: The other thing Pakistan did was in the same month, they passed a GO with reference to Gilgit Baltistan...Both those amendments and order- what it did was take away the right of self governance.
Sankarnarayanan: They (Pakistan) took away self governance of people in those two areas and vested it to themselves. It was challenged in HC, HC allowed the challenge and it was reversed by the SC.
Sankarnarayanan: Effectively, what the Pakistan government has done is to rest direct control and vest it in a council with the Prime Minister. I ask myself, isn't India different? Aren't we a democratic country run by a Constitution?
Sankarnarayanan: Do we not adhere to certain promises that we make which are present in the Constitution on which 5 CBs have weighed in. Or are we going to follow the example of people who put their PMs in jails?
Sankarnarayanan refers to the sequence of events.
Sankarnarayanan: My submission is that 370(3) is a one time decision making exercise to be carried out by the Constituent Assembly. If abrogation is to be done, it is to be done once and if it is done, 370 is out of the window.
Sankarnarayanan: But if they did what they did in 1952, and decided to have their own constitution, 370(1)(d) then continues to operate.
Sankarnarayanan refers to the Madhavrao Scindia judgement.
Sankarnarayanan: For Kashmir, we had a ministry which was headed by Dr Ayyangar. Rest every state was Sardar Patel.
Sankarnarayanan: Kashmir had entered the stadium, was near the finish line to adopt the Constitution. There was an illegitimate assistance given to get it past the finish line which is completely unnecessary.
CJI: Can we not read Article 370 and indicating two terminal points? The first terminal point is in clause (2) of Art 370- namely formation of Constituent Assembly for framing the Constitution.
CJI: The second terminal is indicated in Art 370(3) which again refers to recommendation of Constituent Assembly. Interestingly, 370 is silent on what the regime should be once the Constituent Assembly is formed and has taken its decision.
CJI: If there is complete silence in Art 370, then 370 has worked itself out both in relation to clause (1), and in relation to (2) and (3). In which case, there are two options - your line of thinking would be that Constitution of J&K fills the void.
CJI: The other view possibly is can the Constitution of a federated unit ever rise above the source of the federating unit?
CJI: If the terminal point of 370 is the Constituent Assembly's work, then is it not necessary that the work of the Constituent Assembly of the state of J&K has to be embodied in this constitution to make it operational?
Sankarnarayanan: It's not necessary because it's not provided for in the Constitution.
CJI: If 370 works itself out...
Sankarnarayanan: If it works itself out, it can't be touched.
CJI: If a text itself shows its self limiting character, the whole operation of 370 has to come to an end once the Constituent Assembly comes to an end.
CJI: Is there not intrinsic evidence that 370 itself is self limiting once the Constituent Assembly has come to an end? Then do we say that our constitution must be so read to see the Constitution of J&K as an overriding doc which we'll apply in preference to our Constitution?
CJI: Though the Constitution of J&K framed its relationship with the UOI, unless that relationship is embodied in the Indian Constitution, how will it bind the dominion of India or parliament and the executive?
GS: For simple reason that when the Indian constitution specifically recognises a Constituent Assembly for only one state in the country and says that Constituent Assembly has the task of deciding to abrogate the clause or not, the CA and it's task is constitutionally recognised
CJI: Does that mean that anything said by the Constituent Assembly of J&K would bind the parliament?
CJI: The idea was to gradually bring J&K in mainstream...
Sankarnarayanan: Which is thankfully what has happened.
Sankarnarayanan: The J&K Constitution refers to the Constitution of India. All the COs refers to Constitution of J&K. So there is a bridge. Acknowledgement is there even in correspondence.
Sankarnarayanan refers to an earlier attempt of the Indian Parliament to abrogate Article 370.
He reads from the extract of Gulzarilal Nanda.
Sankarnarayanan: 370(1)(d) was the only way they could have abrogated. What they would have to do is- 1. They would have to get rid of proviso under Art 368.
Justice Kaul: You only have to tell if what they did was correct or not. You don't have to give the solution.
Sankarnarayanan: The reason is that there is a legitimate way and they know what that way is.
Sankarnarayanan: We shouldn't pay too much attention to marginal note of this being temporary because there are many provisions across the Constitution outside of Part XXI which are also temporary in nature.
Sankarnarayanan refers to other "temporary" provisions in the Constitution.
CJI: Article 73(2) etc- these are not temporary provisions. These are provisions which will continue unless varied by any law by the parliament.
Sankarnarayanan: So similar to 370(3), where action has to be taken by the Constituent Assembly but didn't happen, similarly here, where parliament has to make a law but doesn't make a law, it becomes predicated on the action by one of the instruments.
Sankarnarayanan: There is a meeting of minds. There has to be some basic meeting of minds - as with the RBI in the demonitisation case, as between the collegium and the government- that meeting of mind doesn't mean your mind meeting your own mind.
Sankarnarayanan: That is what they've side stepped. And they've done it in the Constitution which is why it is shocking! This is not some order by the executive. This is a constitutional amendment you bought.
Sankarnarayanan: How Article 367 is being misused here- everything in 368(2) which needs half states to give consent, they can do by 367! Just say that this provision would read as this.
Sankarnarayanan: For example- the word 'person' in Art 21 can be interpreted to mean 'person accused of an offence'. In 367, I'll put an interpretation clause and say person means person accused of an offence. So all other rights under 21 are out of the window.
Sankarnarayanan: Using 367, the phrase 'the legislature of not less than 1/2 of the state' could be read as Rajya sabha or the law minister. You can say that.
CJI (smiles): You're giving all these ideas Mr Sankarnarayanan.
Sankarnarayanan: Which is why, please take a sledgehammer to this. Justice Hidayatullah in Madhavrao Scindia said that we must take extreme examples to test what they're doing.
Sankarnarayanan: I'm taking these extreme examples to show that if they're allowed to do this, heaven knows what else they could do!
Sankarnarayanan: You can see how absurd it becomes because by using powers under 356, can you do something which is irreversible and destructive?
Sankarnarayanan: What is omitted under 356(1)(a) is only for the functions of the government to be taken by the president, not powers.
Sankarnarayanan: What is provided under 370 is not a function, it's a power.
Arguments concluded
The petitioners have concluded their arguments. The Union will commence its arguments tomorrow. The bench rises for the day.
(Inputs Live Law)