New Delhi: On the seventh day of Supreme Court’s hearing; Advocate Dave began his argument by invoking the historical context of Article 370's creation, emphasizing that it was a brilliant compromise during a critical period of uncertainty in Jammu and Kashmir.
“You are at a time when calls for plebiscite are being raised in Kashmir. You are at a time when raiders are raiding in plain clothes and trying to take away. You are at a time when Maharaja is uncertain whether he wants to join India or Pak. At a time like that, this was a brilliant compromise that was arrived at which led to producing the article which persuaded people of J&K to accede to India. We gave them a promise. You cannot breach that promise like this,” Dave told the bench.
He said abrogation of article 370 was breaching of the promise made through Article 370 and a significant violation of trust.
Dave pointed out that Article 370's temporary nature was not based on time but on its purpose and argued that once the objective for which Article 370 was introduced had been achieved, it ceased to be applicable.
He stressed that the Constituent Assembly of Jammu and Kashmir had approved Article 370 with the condition of sovereign modification, and once that acceptance occurred, further modification should only have been possible through the amendment of the Constitution under Article 368.
“My submission is that 370(3) has served its purpose. That the day Constituent Assembly of J&K agreed that yes, Article 370 must remain, subject to sovereign modification and the President accepted and issued it in CO 44, that's the end of the story. If it is a continuing exercise, in my submission, the only way parliament could do it would be by amending the constitution under Art 368 and repealing Art 370 and in no other manner. It’s a fraud on Indian constitution,” he said.
He termed abrogation as an abuse of Power and a fraud on the Constitution by criticizing the government for using executive powers without adequate justification: “lastly, my submission is that exercise of powers by the President on 5th and 6th August are nothing but fraud on the Constitution and the only material was that the ruling party manifesto in 2019 had said that we'll abrogate 370.”
The Senior Advocate said that article 370 was a democratic promise made to Jammu and Kashmir and an essential feature of the Indian Constitution that should not be disregarded.
He argued that the government's actions undermined democracy and federalism, posing a threat to the rule of law and urged judiciary to review whether there was a violation of the Constitution rather than reassessing the government's decision.
Dave also cited past judgments, including "In Re: The Berubari Union, 1960," "Sampat Prakash v State of J&K (1968)," and others, to strengthen his legal arguments.
He explained the uniqueness of Article 370 and how it was intricately linked to the historical context of Jammu and Kashmir's accession to India. Article 370's Impact on Jammu and Kashmir: Dave highlighted that Article 370 had successfully facilitated governance in Jammu and Kashmir for decades, indicating its positive impact on the region's stability and integration with India.
Here is the detailed hearing:
Dave: You are at a time when calls for plebiscite are being raised in Kashmir. You are at a time when raiders are raiding in plain clothes and trying to take away. You are at a time when Maharaja is uncertain whether he wants to join India or Pak.
Dave: At a time like that, this was a brilliant compromise that was arrived at which led to producing the article which persuaded people of J&K to accede to India. We gave them a promise. You cannot breach that promise like this.
Dave: If you start tinkering with this diversity nothing will be left
Dave: Please consider three submissions - 1. Article 370 is a piece of unusual draftsmanship. It is temporary but not by afflux of time as most temporary statutes are. It is temporary by object, the purpose. Once that object is achieved, nothing remains for Pres to exercise.
Dave: My submission is that 370(3) has served its purpose. That the day Constituent Assembly of J&K agreed that yes, Article 370 must remain, subject to sovereign modification and the President accepted and issued it in CO 44, that's the end of the story.
Dave: If it is a continuing exercise, in my submission, the only way parliament could do it would be by amending the constitution under Art 368 and repealing Art 370 and in no other manner. It’s a fraud on Indian constitution
Dave: Lastly, my submission is that exercise of powers by the President on 5th and 6th August are nothing but fraud on the Constitution.
Dave: The only material was that the ruling party manifesto in 2019 had said that we'll abrogate 370.
Dave: Your lordships in DC Wadhwa's case have said that you cannot exercise constitutional powers to achieve political ends.
Dave: You have a government in association with a local party in J&K. It is working well. You suddenly withdraw the support from that government. Then you persuade the President to issue a 356 order. Then you persuade President to issue a resolution of assembly.
Dave: Parliament takes controls over executive and legislative functions. Then you say President will exercise all powers into one. Then you pass orders under 370.
Dave: What more classic example of abuse of power than this?
Dave: 356 is a temporary provision. It is a temporary situation. Can you take actions which are permanent in nature?
Dave: To do this, it really strikes at a very basic feature of our constitution - democracy, federalism.
Dave: Government of India categorically admits this- that Constituent Assembly of J&K did not, in any manner, deviate from the provisions of the Constitution of India which would be applicable to J&K.
Dave: Then they say what we have done is because of national interest. Noone knows what this national interest is because it hasn't been defined in the counter affidavit.
Dave: Of course there is insurgency. No one can deny that. But then we have insurgency in so many states in North East India. We had insurgency in Punjab for a long time. If we were to start disintegrating states into UTs, no state would be saved.
Dave: To be giving this kind of power to a majoritarian government would be destruction of rule of law.
Dave: You don't want to amend the constitution of India because then you'll have to follow the procedure - you need 2/3rd majority in both houses. You may even need to go to the legislatures of the state because you're taking away representation of the State in LS and RS.
Dave: These are the safeguards. If these safeguards are thrown out of the window in this manner, who else can protect us but your lordships?
Dave: This is not just about J&K. J&K was and will always be a part of India. But the promise that India made to J&K- how do you interpret those terms and conditions.
Dave: The need of the hour was that we wanted Jammu and Kashmir to get into us. At that time we were left with no option but what was given to us. Otherwise, we were afraid Maharaja may run away to Pakistan.
Dave: This controversy needs a delicate approach by this court. Today let's assume this decision is in national interest. Tomorrow some other political party in power with majority may try and take a decision which is not in national interest.
Dave refers to a few judgements.
CJI agrees attorney general said the basic structure of the constitution cannot be altered.
Dave: If it can be done in J&K, why can't it be done in Gujarat or Maharashtra?
Dave takes the bench through the judgement in In Re: The Berubari Union, 1960.
Dave: "Stated broadly the treaty-making power would have to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it."
Dave: In my respectful submission, treaty in question here between the erstwhile ruler and Governor General is now transfixed into Art 370. So 370 is an extraordinarily unusual provision. It's so beautiful.
Dave: It was absolute brilliant statesmanship on their part to bring that into constitution to assure the people of J&K that we mean what we say.
Dave: So the treaty will have to be interpreted in the light of 370.
Dave continues reading Berubari: "Our conclusion is that it would not be competent to Parliament to make a law relatable to Art. 3...It is conceded by the learned AG that this conclusion must mean that the law necessary to implement the Agreement has to be passed under Art 368."
Dave: The conclusion of your lordships is very clear that legislative power is not possible. Only a constituent power can be exercised. That Constituent power is under 368.
Dave: I must confess that I have been sufficiently instructed, briefed, and educated by Mr Prashant Bhushan in this matter over several sessions. It's something which I must mention.
Dave (continues reading Berubari): "On the other hand, it is clear that if the law in regard to the implementation of the Agreement is to be passed under Art. 368 it has to satisfy the requirements prescribed by the said Article..."
Dave: "It should obtain the concurrence of a substantial section of the House which may normally mean consent of major parties of House, and that is a safeguard in matters of this kind." This is the protection which has been extended. And I beseech you to extend it here too.
Dave: You can't resort to some kind of executive power, authorise president to do this, do away with everything that Art 3 provides in the garb of 356 power. It makes mockery of constitutional safeguards.
Dave: Your lordships know what majorities can do. We saw what happened in 1975.
Dave: So this is the check. If they don't do it in letter and spirit, your lords can strike it down and you must.
CJI DY Chandrachud: Berubari was decided at a time when Explanation 1 and Explanation 2 were not on constitution. They came as a consequence of Berubari. So now that issue won't survive.
Dave: There are two submissions - one, that treaty is to be interpreted in light of what Constitution provides; two, if you want to touch that treaty, you can't do it as a legislative act, you have to do it in exercise of Constituent power.
Dave: Constitution is durable. If it served a need of the hour on that day, doesn't mean that the need be wished away.
Dave: The argument government is advancing before your lordships doesn't bear out from plain reading of the constitution provision.
Dave: It is temporary from the perspective of J&K, not temporary from perspective of Indian republic. The choice was left to Constituent Assembly and thus the people of J&K to decide.
Dave: I will show that by Mr Iyengar's very express statement.
Dave: You persuade citizens of a state, a country - at that time an independent state to accede to you. They agree.
Justice Gavai: Who requested the government of India? The Raja did.
Dave: Raja requested but he expressly asked for this protection.
Dave: 370(1)(c) is most important. Please see. "The provisions of Art 1 and this Art shall apply to the State." Meaning that all other articles shall not apply.
Dave: All other articles were to be applied by the President subject to this exercise of power under clause (d) read with proviso. So if it is part of IoA, with consultation. If it is outside, concurrence of the state govt.
Dave: State govt has to be understood in the context of democracy. Not as governor exercising omnibus powers.
Dave: Why is it temporary? Why? Because democracy. You could only do it if Constituent Assembly approved it.
Dave: It was never intended to be permanent. It is a temporary provision. The entire power of decision to make it applicable was left to Constituent Assembly. President can't exercise powers now and say that 370 stands repealed.
Dave: Constituent Assembly said we want to be part of India, we want to continue with Article 370 and that was accepted by President. Where does he have power to re-exercise this now. It would be travesty of justice if GOI says that governor can act on it.
Dave: It was a one time exercise. It was not intended to be exercised again and again. Even the Constituent Assembly could not do it again. Suppose they passed a resolution later saying now we want to get out of India? Was that permissible? No.
Dave: This Article has lived its life and achieved its purpose. 370(1) survives because if tomorrow the Constitution is amended and a new article is inserted, we would want it to apply to J&K also.
CJI: Article 370 works itself out and achieve its purpose once the Constituent Assembly of J&K has completed its task. Then where was the occassion thereafter to issue constitutional orders post 1957?
Dave: That's for 370(1) to extend from time to time any amendments. Because there were many provisions of the Constitution which weren't made available at the time.
CJI DY Chandrachud: Your whole argument is that 370 has worked itself out. But that would be belied by constitutional practice. Because even after 1957, there were orders issued progressively modifying the constitution in relation to J&K.
CJI: This means that Article 370 had continued to operate even thereafter. Therefore, it would not be correct to postulate that Art 370 achieved its life.
Dave: It refers to those decisions taken prior to its constitution. So to that limited extent, Constituent Assembly's approval was sought for. But subsequently once the Constituent Assembly goes...
CJI: But then where is the power to alter the Constitution at all? If your argument is right, once the Constituent Assembly in 1957 takes its decision, there is no power to change any provision of the Constitution in relation to J&K.
Dave: 370(3) is only in respect of continuation of 370 or not. The Constituent Assembly agrees that it has to continue. So it becomes a permanent decision.
Dave: Idea is that you had to decide whether you want this relationship to continue or not. They took that decision.
CJI: Clause (2) of Art 370 refers to a decision. The proviso to clause (3) uses the word 'recommendation'. The commonality between 370(2) and proviso to 370(3) is some action on part of Constituent Assembly.
CJI: Your submission is that once Constituent Assembly made its decision, there was no question of invoking proviso to clause (3) and Art 370 becomes a permanent feature.
CJI: There is one inconsistency in accepting that submission. Because if its right, the consequence would be that once the Constituent Assembly completed its task in 1957, there could be no amendment to the constitution at all in application to J&K under 370(2).
CJI: This is belied not merely by constitutional practice but the acceptance by both the state of J&K and GOI that amendments were being made by the constitution even after 1957 and until the disputed amendment of 2019.
Dave (reading Art 370(2)): "If the concurrence of the State be given BEFORE the Constituent Assembly is convened..." It is purely limited. Before! This is temporary within temporary.
CJI: But then would the power of the state government to grant its concurrence under second proviso to clause (d) continue to operate once the Constituent Assembly completed its task in 1957? Or would that power be exhausted?
Dave: They have applied all provisions of constitution by 1954 so really speaking, there is nothing is left to be done.
CJI: But then how do we explain that there were subsequent amendments?
CJI: We are talking of practice of 64 years.
Dave: After 64 years you can repeal it? With great respect, it means that 370(3) can't be repealed so you continue it.
CJI: If the power under proviso of (3) has exhausted itself then equally, the power under the two provisos of clause (b) has exhausted itself. In which case how do we explain the exercise of that power over 64 years?
Dave: For a moment, see 370(3) independently of 370(1). 370(2) has lived its purpose now and that is dead.
Dave: Same way, 370(2) has also lived its purpose. 370(1) continues, your lordships are right. 370(1) is alive. Can you repeal it? That's the question.
CJI: If 370(1) survives then it'd be very difficult to say that 370(3) ceases to exist. There has to be a logical consistency on how you interpret...it has to be in tandem. Either everything remains or everything perishes together.
Dave: Then let it all perish.
CJI: What about the fact that it was applied from 1958 to 2018?
Dave: You have no power. This is a relationship that continued from a long time since 1947. 370(1) continues. But it's one thing to continue 370(1) and another to repeal 370(3).
Dave: If you repeal it, that limited power of state to say that certain laws should be applied in certain manner is taken.
Justice Gavai: Is it not possible that if there was concurrence of the government, entire provisions of the Constitution could be made applicable to J&K?
Dave: Yes.
Dave: It can be, but power of removing 370 is a different power.
Dave: There is no doubt that 370 has worked beautifully since 1947. There has been no difficulty. It is not government of India's case that there were impediments in running the administration of the state. Except national security and some violence, they've not given any reason
Dave: If this has worked, it must continue to work. Please see Dr Iyengar's statement.
Dave: There is a wrong narrative in the country today- that J&K is not a part of India because of 370. That's not so. As Jawahar Lal Nehru also refuted. It's part and parcel of India.
Dave: Today's house has no moral or constitutional authority to do this just because it has the majority.
Dave: For the people of J&K this was the essential feature of the Constitution.
Dave: On 5th August President issues a proclamation. Then it is sent to Rajya sabha. Rajya sabha sends a recommendation on the same day. Then Rajya Sabha approves reorganization bill on the same day. Next day in Lok Sabha it is approved.
Dave: These constitutional assembly debates took several years! These are men and women who were the most brilliant of those born in this country. We owe gratitude to them. If we were to interpret Constitution as today's govt tells us, we'd be doing great disservice to them.
Dave: They knew what India's problems were. They knew about the diversity of this country. They felt the pain of every part of this country. And that pain they brought in these provisions
Dave: The article is not just a letter. It's the feelings of people of J&K.
Dave reads from judgement in Premnath Kaul v State of J&K.
Dave also relies on the judgement in Sampat Prakash v State of J&K (1968)
Dave: Constituent Assembly has accepted it. It's a one time exercise. Now you can't repeal.
Justice Kaul: They didn't repeal...
Dave: Yes, it was made inoperative.
Dave: They have exercised 370(3) to delete it.
Dave: It is an extraordinary parliamentary act they've done. It's neither legislative nor Constituent.
Dave reads from Jatinder Nath Gupta v State of Bihar.
Dave: Article 367 begins with a non obstante clause says "subject to the contrary". 370, therefore, context is entirely different.
Dave: Somebody makes a statement from Home Ministry, giving no details as to how it has impeded (integration of J&K with India).
Dave: Law and order problem certainly exists. But it is not because of applicability or otherwise of Constitution.
CJI: Are you inviting the court to review the wisdom of the decision of the govt on the abrogation of 370? You are saying that judicial review should reassess the basis of the govt's decision that it was not in national interest to continue Art 370?
CJI: Judicial review would be confined to a constitutional violation. There's no doubt about that.
Dave: President has undoubtedly exercised powers under 370. Your lordships have said that President can only exercise powers in constitutional sense, no other sense.
Dave: President has to be advised by his advisors.
Dave: I am on fraud on the Constitution that today the president is exercising power without any material, any justification - and by simply saying that it was impeding...
Dave: Their affidavit is a bundle of contradictions.
Dave: They say that Constituent Assembly of J&K did not in any manner deviate from constitution of India...
CJI: Mr Dave, do we really need to labour on the counter? We have to interpret the constitutional provision as it stands. How is this relevant?
Dave: I bow down. There are no reasons available in presidential exercise, nor are they given in counter
Dave: Resolutions are passed by parliament on many issues, sometimes to honour the individuals and to recognise great events in the country. So parliament passes resolutions. That is a pure act outside of parliamentary powers
Dave: And they did it only because the assembly was dissolved.
Dave refers to judgment in DC Wadhwa v State of Bihar.
Dave: It is settled law that the constitutional authority cannot do indirectly what cannot be done directly.
Dave: Last judgement I wish to place on record is the UP assembly matter.
Dave: Whichever way you look at it, if the exercise of power by the constitution or parliament has to be done under the constitution itself, then constitutional sense or Provisions prohibit both president and parliament from touch Article 370(3) in any manner to abrogate it.
Dave: There is no power to touch it because 370(3) has lived its purpose.
Dave: In any case, the exercise suffers from fraud of constitution because it has been done completely contrary to constitutional provisions and principles of democracy and federalism.
Dave: I have quoted from the 2019 BJP Manifesto which says that we'll abrogate 370. Your lordships have said in 2013 that these manifestos can't be contrary to Constitutional scheme and directed EC to issue guidelines.
Dave: In 2015, EC did issue guidelines and said your manifestos must be as per constitutional scheme. Today, because you have majority in parliament, you have done this.
Dave: The only reason you did it is because you told people of India that vote for me and I'll abrogate 370. That shows that the power has been exercised for colourable considerations. Actual exercise is fraud with irrelevant considerations which cannot apply.
Dave: You didn't want to go to legislature because you're now you're taking away from the Lok Sabha and Rajya Sabha members. Once you divide the territory, that representation is gone.
Dave: You're supposed to go to all state legislatures and take their approval because they're also concerned. 368 is very beautifully worded. There are so many safeguards.
Senior Advocate Dushyant Dave has concluded his submissions.