New Delhi: On the fourth day of hearings, senior advocate Gopal Subramanium quoted the 1954 order, asserting that the Constituent Assembly of Jammu and Kashmir had ratified the autonomy of Article 370 which was accepted and recognized by the Govt of India.
“In the 1954 order, they expressly affirmed by a resolution that they don't want it to be abrogated. That act of resolution is accepted by the government and the order is passed,” he said.
He termed 356 alien for the abrogation of article 370.
The senior advocate added layers of historical context to the ongoing legal debate over Article 370. It reinforced the principle that the provision wasn't just an imposition by the President, but a result of a collaborative process involving both parties.
The hearing, presided over by Chief Justice of India, DY Chandrachud and attended by senior advocate Gopal Subramanium, delved into the historical, textual, doctrinal, and structural arguments surrounding this pivotal constitutional provision.
Subramanium outlined four distinct methods of constitutional interpretation - historical, textual, doctrinal, and structural - emphasizing that regardless of the approach, the outcome remained consistent. He stressed that the Constitution of India and the Constitution of Jammu and Kashmir coexisted and complemented each other, underscoring the unique relationship between the two.
He explained the concept of the Constituent Assembly, both in India and Jammu and Kashmir, asserting that amending power was derived due to the primary role of these assemblies in framing constitutions. Subramanium noted that the impugned orders, CO 272 and CO 273, infringed upon the Constitution of Jammu and Kashmir, rendering them impermissible and unauthorized.
Subramanium argued that both the expression "Constituent Assembly" and "legislative assembly of a state" were wholly different and integral institutions under the Indian Constitution.
Referring to Dr. Ambedkar's introduction of the Constitution, Subramanium cited his remarks on federalism and special rights for states. He then highlighted the unique circumstances of Jammu and Kashmir's accession and the Constituent Assembly's role in determining its status.
The legal expert delved into the intricate historical timelines, demonstrating the relationship between the two Constitutions. He showcased the exchange of resolutions and orders, which exemplified a collaborative relationship between India and Jammu and Kashmir.
Subramanium underscored the intricate federal dynamic between Article 370 and the Constitution of Jammu and Kashmir, arguing that the provision wasn't a repository of unlimited power but a channel for the Indian Constitution's application. He contended that the abrogation of the 1954 order was a significant move with serious and irreversible implications.
Here is the detailed hearing:
Subramanium: One is a historical argument, second is a textual argument, third is a doctrinal argument, and the last is structural argument - these are all methods of constitutional interpretation. In this matter, whichever way you look at it, the result will be the same.
Subramanium: The Constitution of India and the Constitution of J&K speak to each other. They exist together. Their complimentary existence is the quintessence of the relationship between India and J&K.
Subramanium: The second is that Constituent Assembly by its very definition is a primary assembly which is vested with this extraordinary task of framing a constitution. That's why the amending power is always called a derived power.
Subramanium: Here, we have two Constituent Assemblies- one of India and we also have under the Constitution, the Constituent Assembly of J&K.
Subramanium: The impugned orders - CO 272 and CO 273- in sum and substance do away with the Constitution of J&K. That is impermissible, not authorised.
Subramanium: The last is about the expression "people". Here, people have both the sense of being persons but in the constitutional context they have a legal and juridical existence.
Subramanium: My lord, the CJI, yesterday made a very important observation- that in any representative democracy we must look for expression through institutions of the Constitution.
Subramanium: I'm going to urge that the expression Constituent Assembly and the legislative of a state are both institutions recognised under our Constitution.
Subramanium: I will submit that the basic structure which your lordships have to discern will be deduced both from the Indian and the J&K constitution.
Subramanium: I will urge your lordships to apply the "degree test" or the "effect test" applied by Chief Justice Kapadia in a case called Glanrock. It is by applying that test we assess the extent of abrogation.
[He was referring to Glanrock Estate v State of TN, 2010]
Subramanium: Our constitution recognises asymmetric federalism. The purpose of asymmetry is to take note of special conditions and special needs of people
Subramanium: Dr Ambedkar introduced the Constitution. His introductory speech had two themes. He speaks about the Indian Constitution being federal. He also says that people who live in a state can be given special rights, privileges.
Subramanium: J&K was not like any other state at the time of accession. I'll give you three reasons- J&K had its own constitution prior to accession; the accession was qualified because people were still in the process of making up their mind.
Subramanium: What the Indian Constituent Assembly did is that just as they felt that a decision can only be taken by the people, they thought that it was appropriate and necessary that the will of people is ascertained.
Subramanium: That is the reason why draft article 306A spoke about the Constituent Assembly of J&K taking a decision.
Subramanium: The controversy is based on one misunderstanding - there is a unilateral exercise of power possible by the president under Art 370. This is how we've looked at it. Now I'll show that it's exactly the converse.
Subramanium: I will take you to some portions of the debates at Constituent Assembly of J&K. Then you will notice what their final resolution was. The text of that resolution is the answer to the case.
Subramanium: Just as the Constituent Assembly debates of India are inspiring, the Constituent Assembly debates of J&K are also inspiring. It was really on basis of Rousseau's model of representative democracy that the Constituent Assembly was formed.
Subramanium: More importantly, they took their decisions in three steps- they left India in no manner of doubt that they have faith and respect for people of India and are acceding to India.
Subramanium: Second, they were looking at all the Constitutions of the world, just like Dr Ambedkar was. They had many constitutions to look at. They also looked at Indian Constitution and they said that we need some special provisions for us.
Subramanium: One of the first States in India which looked at land reforms was Kashmir. It was actually their throbbing concern at that time that we must give rights over land to people and they must be permanent residents.
Subramanium: They said that we will frame our constitution but we will request the GOI that its constitution will be exceptions which we need for J&K must be brought into effect under Art 370. That's why we have 3 Constitution Orders- of 1950, 1952, and 1954.
Subramanium: The Government of India accepted that request and issued the 1954 Order. And then they said if we have already got a order subject to exceptions and modifications and in that they omitted many parts of our constitution because they wanted it to come in their Consti.
Subramanium: They also had seperate provisions including the autonomy in respect of framing of laws. This is the way two constituent assemblies as a product of their energies through now the Constitution speak to each other.
Subramanium: Even though the word temporary appears in marginal notes, the resolution was that Constitution of India must apply with these modifications. But more importantly, Article 1 and 370 must continue. I am talking of an affirmative resolution. It's not non formalistic.
Subramanian: The two Constitutions speak to each other. From which provision? Article 370. Art 370 was not a repository of untrammeled power, but a medium through the Indian Constitution would apply. Here lies what I call dual obligation.
Subramanium: The dual obligation is to be discovered in the words of S 147 of J&K Constitution and second are words in Art 370 itself. In S 147, one law which couldn't be touched was the provisions of Constitution of India as applied to J&K.
Subramanium: And what did we under 370 offer? We offered the ability to frame a Constitution and the ability to offer our Constitution subject to special exceptions.
Subramanium: When lordships sees those exceptions, lordships will realise it is not a simple government order. This is a product of bilateralism. Our constitution by its very nature has so many checks and balances.
Subramanium: Justice Bhargava noted in Sampat Prakash that the Constituent Assembly did not want to abrogate 370 and instead permitted its continuance.
Subramanium: The judgement in Damnoo is a case where there was an amendment to J&K constitution by the assembly which was called the 6th amendment. J&K said that Sadar-i-riyasat will now be governor. And that's why 367 was amended to bring it in accord with J&K constitution.
Subramanium: Justice Sikri said that that amendment did not alter the basic structure of the J&K constitution.
Subramanium takes the bench through the list of dates.
Subramanium: There was a 1939 constitution. One of the features of that Constitution is that the Maharaja and all legislature, judicial parts vested in the Maharaja...On 26.10.1947 Hari Singh signed Accession. It wasn't like others. All others signed supplementary agreements.
Subramanium: Our constitution didn't ask Maharaja to discover the will of people. They acknowledged that there should be a constituent assembly by which will of people of J&K should be ascertained. Even though he was titular head, people of J&K were acting in sovereign capacity.
Subramanium: On 27th Oct 1947, Lord Mountbatten accepted the IoA. 5th March, there was an interim government for administration appointed by Maharaja.
Subramanium: On 17th October 1949 Article 306A was introduced. One day before our Constitution was going to be adopted, on 25th Nov 1949, the Maharaja said India is avowed to frame a new constitution & for continuity the provisions of Constitution must govern us till necessary.
Subramanium takes the bench through the Constitutional orders of 1950, 1952, 1954
Subramanium: I'm trying to set out the extraordinary goodwill between India and the State framing the constitution and how it was expressed.
Subramanium: My submission is that the Constitution of India was made applicable with exceptions and modifications as a part of the Constituent Assembly's decision.
Subramanium: It was not an imposition by the President at all.
Subramanium: What they did was that the applied some parts, omitted some parts. They omitted Part VI, VII, VIII, IX, X- of Indian Constitution and they applied this Constitution. This is verbatim the 1954 order.
Subramanium: This report is sent to the Government of India from the Constituent Assembly.
Subramanium: So you have one order under 370(3) which says that the only change we want in 370 is change from explanation to the Maharaja to Sadar-i-riyasat. The second is that they have asked for an application of the 1954 order, also stating that Art 1 and 370 will continue.
Subramanium: The two articles speak to each other, the two constitutions speak to each other. That can only happen through Art 370...In their constitution they first recognized Indian constitution
Subramanium: They said they're an integral part of India. They said that we have powers to legislate except where parliament of India has power to legislate and they created their legislature. Their statehood is defined by their constitution.
Subramanium: So we have an act of affirmation from government accepting the suggestion that constitution should be applied, they say please apply with exceptions and modifications, govt agrees. Then they define Constitution as applicable to them.
Subramanium: Section 147 should be interpreted in the light of this- that the legislature can never touch Constitution of India as applied to them.
Subramanium: The question will be that where does anyone get the power to abrogate this constitution?
Subramanium: Please see Section 92. This section is a stark distinction to the provisions in our Constitution.
Subramanium: "If governor is satisfied that state govt cannot be carried on...governor may assume to himself all functions of state govt..." He is not in the position to exercise powers of legislature and he must do this to get popular govt in 6 months.
Subramanium: Popular representative government is a part of the architecture of Sec 92 of J&K constitution.
Subramanium: The High Court is constituted under this Constitution.
Subramanium: 1954 order was treated as a part of law applicable to them. See Article 103.
Subramanium: The linkage between the 1954 order and the constitution of India as applicable has been cemented by the J&K constitution as well. Which is why the last thing I have to show you is amendment to Constitution, 147.
Subramanium: The provisions to the Constitution of India were not applied only through a 370 order. They were embraced into the J&K constitution.
Subramanium: They have expressly affirmed by a resolution that they don't want it to be abrogated. That act of resolution is accepted by the government and the order is passed.
Subramanium: They wanted its continuance, they wanted this to be a language of communication between the two constitutions.
Subramanium: If the Constituent Assembly of J&K, which is the body of people, has taken these proactive steps and we have accepted those proactive steps, can we unilaterally abrogate this arrangement?
Subramanium: The nature of the constituent assembly power is as pristine and pure as any assembly. This is the equality we have practiced. This is the level of statesmenship India practices. Whatever constituent assembly wanted, we accorded it.
Subramanium: Can the legislature of a State under the J&K constitution be rendered redundant? And then the question is what is the effect of those two COs?
Subramanium: Can that be abrogated by reference to 370(1)? 370(1) was a means to communicate, was to respect each other. But that order does not contain a power to abrogate a legal compact.
Subramanium: This arrangement between J&K and India was a compact of federalism. Federalism is a different kind of social contract. 370 establishes the contours of this relationship in the federal sense.
Subramanium: : This federal principle must be read as in-built in the application of Article 370. And that cannot be abrogated.
Subramanium: It was a government which was elected and accountable to the legislative assembly under the J&K constitution.
Subramanium: If it is so interpreted, this concurrence- the concurrence of the governor, is not the constitutionally mandated concurrence under Art 370.
CJI DY Chandrachud: We'll return after lunch.
The bench rises for lunch.
Sr Adv Gopal Subramanium: The implications of the abrogation of 1954 order is completely serious and irreversible.
Subramanium: When we look at the 1954 order, like Art 35A, which has a special provision in relation to right of residents, the same is mirrored in the State Constitution.
Subramanium: Section 10 refers to the Constitution of India. "The permanent residents of the State shall have all the rights guaranteed to them under the Constitution of India."
Subramanium: This is why the wholesale abrogation of the 1954 order which is the indication of asymmetric federalism, constitutionally recognised under 370, cannot be abrogated.
Subramanium: "All the provisions of the Constitution as amended shall apply to the State of J&K"- this militates against the principle of exceptions and modifications which would be bilaterally urged. This emasculates bilateralism inbuilt in (1).
Subramanium: A new exception or modification is now carved out for the application of the entire Constitution. That exception or modification is no more than what is seemingly a change in a provision of interpretation.
Subramanium: The provision of interpretation, or to aid interpretation, is an aid to construction. It is no more than an aid to seek and designate the references of expressions in a constitution.
Subramanium: If you see the new clause (d)- "Constituent Assembly should read legislative assembly of the State". Is this interpretation? Is this exception permissible in a clause of interpretation?
Subramanium: In other words, if constituent assembly and legislative assembly by their very nature are different bodies, then it cannot be an interpretation that Constituent Assembly shall read legislative assembly.
Subramanium: This is a direct amendment to Art 370(3). And that amendment cannot be achieved by an interpretation provision. This is insofar as CO 272 is concerned.
CJI: You're saying that what is done by CO 272 is to directly amending Art 370(3) and this couldn't be done by amendment of an interpretative provision. What if they had done by an adaptation order?
Subramanium: An adaptation order can be passed whenever a law prior to the commencement of Constitution which continues as on the date of commencement of Constitution needs to be brought in conformity in the Constitution.
Subramanium: CO 273 is a clear order under (3).
Subramanium: The expression "state government" for the purpose of 370, by the very nature of that article, contemplates a validly elected, democratically constituted state government, accountable to an assembly.
Subramanium: Sans that, there is a polarity in 370- president on one hand and state government on another hand. That polarity cannot be merged.
CJI: Are you suggesting that when a proclamation under Art 356 is in operation, there is a feter on the exercise of power under second proviso of Art 370(1)(d)?
Subramanium: Yes, the feter is with purpose of exercising 370.
CJI: At the best it is an implied limitation.
Subramanium: It is implied. Even though it is implied, it is strongly expressed in the architecture of the whole of 370.
Subramanium: If the whole of 370 is a manifestation of constitutional principle of federalism, then it is necessary that both parts of the federal principle must be available for enabling an exercise under 370.
Subramanium: Art 370 is not a provision of conditional legislation. It is application of provision of Constitution. That by itself is a constitutive act.
Subramanium: That polarity, that dual actors being on the scene is a sine qua non under 370.
CJI: While our constitution does speak of a Constituent Assembly of J&K, significantly, after 26th Jan 1957, our constitution doesn't speak of the Constitution of J&K at all.
Subramanium: The Constitution of J&K was a product which was envisaged because there was a Constituent Assembly. But the way it happened is- the applicable provisions of Indian constitution were brought in J&K constitution and the J&K Constitution had its own chapters.
CJI: The only document that is within the contemplation of our constitution is this constitution itself
Subramanium: Was J&K constituent assembly not tasked with framing of a constitution?
CJI: Post 1957, neither the legislative assembly of J&K nor the political establishment in the rest of the country represented by parliament, nobody ever thought of amending Indian Constitution to expressly bring the J&K constitution within the fold of Indian Constitution
Subramanium: The constitution of J&K is intended to be applicable to J& K. It is a constitution because it was framed by a constituent assembly
CJI: But the constitution of J &K imposes limitations on the executive power of the Union and the legislative power of an organ of the Union namely parliament.
Subramanium: This is actually the asymmetry.
Subramanium: Im answering the question as an example. In the 1954 order, subject of state list was omitted in its application. So what we've done is with the help of 1954 order, we have imposed fetters on the Constitution.
Subramanium: In the seventh schedule, the state list was completely omitted.
Subramanium: The orders and the J&K constitution speak to each other. There are some carve outs for J&K but those are volitionally done.
CJI: Unless there is some higher constitutional preset which prevents them from modifying that carve out, what is restraining the union from modifying the terms of the carve out?
CJI: Unless we were to make the J&K constitution a part of our constitution to impose fetters on the power of parliament or executive...
CJI: Suppose 356 is in operation. All executive powers of state are assumed by union. Who issues an ordinance in the state? Can the president not issue an ordinance?
Subramanium: 370 contemplates limitations on that power. These are express limitations. These limitations cannot be obviated by taking recourse to 356.
Subramanium: 370 is a power with a duty. The obligation under 370 is to act consistent with the very purpose of 370. The purpose of 370 was to enable another assembly to take a decision and both of them work together.
Subramanium: All judgements postulate the continued existence of 370. They establish that notwithstanding the cessation of the constituent assembly, 370 would operate.
Subramanium: If the J&K constitution has to operate, 370 has to be in existence. The application of the provisions of Indian Constitution to J&K can happen only through 370. 370 cannot be used to self destruct or modify itself.
Subramanium: In Sampat Prakash, there is an express statement supported by legislative record, that constituent assembly did not abrogate but insisted on continuance of 370. Sampat prakash takes the position that 370 was here to stay.
Subramanium: The power to amend the J&J constitution being a constitution created by a constituent assembly can only lie with the body which has been created by that constitution. That is settled law.
Justice Khanna: When we read the earlier part of the 1954 order, it was clear that the Indian Constitution had been adopted with the omissions and modifications.
Justice Khanna: You may call it J&K Constitution. But what was adopted was Indian constitution with exceptions and modifications.
Justice Khanna: By its very nature, Article 370 is very flexible. Normally constitutions are flexible with time and space because they're made once but they last for long times.
Justice Khanna: If you look at 370, it says that modifications can be done that the Constitution of India as applicable to J&K should assimilate whatever is happening in other parts of the country.
Subramanium: Orders may be issued under Art 370(1) but they need to be based on bilateralism. It is necessary to involve what is agreed upon by the State. Sans the state, sans legislature, it wouldn't be consistent with constitutional principles to interpret 370 unilaterally.
Subramanium: Federalism and supremacy of constitution are conjoint principles. Both of them are injected necessarily in 370.
Subramanium: J&K constitution can be repealed by that legislature. But it cannot be abrogated by us. The constitution is a legal document. It has constituted the legislature. It is entitled to be noticed. That constitution cannot be wished away unless power is located somewhere.
Subramanium: CO 273 - it abrogates a constitution. That cannot be done.
Justice Kaul: Mr Sibal's own argument was that as the orders were issued from time to time, very little remained inside 370. So do you have any examples that when these COs were issued, was there any negative comments from assembly etc?
Subramanium: Those orders were with the concurrence with the government. For example, Article 356 was omitted in the 1954 order. It was applied for the first time in 1965 by a CO.
Subramanium: Article 356 was applied saying that the provisions of Constitution in Article 356 would mean provisions of J&K Constitution.
Subramanium: What is today abrogated is the parent order of 1954 as amended from time to time.
Subramanium: These modifications were made by bilateralism.
CJI: What happened to the IoA after the Constitution of J&K came into being?
Subramanium: After the Constituent Assembly decided to accede, it was ultimately that decision which operated. The IoA was done intially but in that there were reservations & conditions.
CJI: Would it be correct to say that IoA ceases to exist as an independent document once J&K became the part of India?
CJI: What would be the status of the IoA after the constitution of J&K was formed.
Subramanium: It's a historical fact.
CJI: Would it be subsumed in the state constitution?
Subramanium: Yes, the constitution itself recognises IoA.
CJI: The reason I asked this was that could it possibly be that the fetter on power of parliament under clause (d) of Article 370(1) was also a limited transitional provision which would operate so long as the IoA held the field as an independent document?
Subramanium: The fetter on parliament is by virtue of 370 and has no direct relation to IoA.
Subramanium: This is not a transitory provision. 370 in its true essence is not treated as a transitory provision, it's meant to be treated as a substantive provision.
Subramanium refers to the judgement in Damnoo.
Subramanium: When we look at the exercise of power under 370, it must be informed with the idea that it shouldn't offend any basic principles of constitution. The two principles I invoke are federalism, with its subsets autonomy and consent; and supremacy of the Constitution.
Subramanium: The purposes of 356 and 370 are not coincidental. They do not coincide. The exercise of power under 356 cannot clothe you with legal authority under 370.
Sr Adv Gopal Subramanium has concluded his arguments.
Sr Adv Zaffar Shah: There are a few approaches to understand 370. One would be that when the Maharaja entered into IoA, why didn't he also enter into merger agreement? He didn't do that. Union of India was by itself one authority and Maharaja was another authority.
Shah: He enters into IoA and says that Union of India will have power over defence, communication, foreign affairs but he retained all other powers with himself.
Shah: Only three states were left- Hyderabad, Junagadh, J&K. A referendum was held in Junagadh and they wanted to merge with India. Hyderabad was different too.
Shah takes the bench through the history of J&K's accession with India.
Shah: If we look at 370(a) it seems to subsume within itself the power that the Maharaja had. He had retained the entire residuary sovereignty with himself. Sovereignty is the power to make laws.
Shah: The structure of constitution was different before- there was a raja, praja etc. With democracy, it was not appropriate...It is the right of the state which is in question.
Shah: Art 370 subsumes the sovereignty which was retained by Maharaja. At the same time, its finality could not be determined - not of 370 but of the State itself.
CJI: Once accession takes place, there are certain fetters- that he unconditionally recognises the sovereignty of India but he retains certain exceptions. He says I'm surrendering powers for three areas. But what accession means is J&K becomes intrinsic part of India.
CJI: Take other states- Maharashtra, UP, TN- there are certain fetters on powers of parliament to enact laws. Parliament cannot enact laws at all with respect to List II. In relation to NCT Delhi, Parliament can enact laws on List I,II, III...there are different models.
CJI: What seems to have happened in IoA is that sovereignty seems to have transferred to India but the power of legislation - because legislation is one part of sovereignty - is not with parliament.
CJI: Notwithstanding this, IoA says that you're unconditionally acceding to dominion of India.
Shah: The IoA is an act of State- between two sovereign states. I'll shake hands with you but I'll not embrace you.
Shah: Nothing prevented him to merge with India, to totally erase itself of its status.
Shah: He doesn't do that. He says I'll run my own state. He says you take care of defence, foreign affairs, and communication but rest I'll take care of. That's the intention.
Shah: Art 370 is a special relationship between J&K and India. What does constitution of India do with a state that hasn't merged but acceded?
CJI: We will continue tomorrow morning.
The matter concludes for the day.
(Inputs from Live Law)