New Delhi: After Advocate Dave concluded his argument stating that article 370 of the Indian constitution’s creation was a brilliant compromise as the state was historically on a critical period of uncertainty, two more senior advocates presented their arguments against the abrogation before the Supreme Court on the seventh day of hearing on Thursday.
During the hearing, Senior Advocate Shekhar Naphade argued that there are implied limitations on the power to modify article 370 as the fundamental concept of the Constituent Assembly cannot be replaced with the Legislative Assembly. He contended that replacing it with the Legislative Assembly was impermissible, as the latter was a product of the former.
Invoking specific articles of the Indian Constitution, he challenged the validity of the J&K Reorganization Act 2019, arguing that the existence of the J&K Constitution should act as a restraint on the powers exercised under Article 370(1)(d), as well as by the parliament under Article 3 and 4.
“The existence of the J&K constitution is a limitation both on the power of the President under Article 370(1)(d) and also the power of parliament under Article 3 and 4,” he told the bench.
“When we talk of sovereignty, it doesn't necessarily contemplate external sovereignty. I accept that the concept of sovereignty vis a vis J&K is not external sovereignty. Because defence, foreign affairs, communication was already given.”
He cited 356, 357, 358 conjunctively and various past judgements to justify that the presidential proclamation under Article 356 is the jurisdictional issue and Jammu and Kashmir Reorganization Act 2019 is unconstitutional.
Subsequently, Senior Advocate Dinesh Dwivedi commenced his arguments, stating the dismantling of the J&K state disrupted the dual polity- integral to India's federal structure.
He defined this dual polity as the interplay between local politics for regional issues and parliamentary involvement for broader concerns.
He argued that the IoA wouldn't amount to a surrender of internal sovereignty unless a merger agreement had been established, as was the case with other states.
However, the Chief Justice of India concluded the proceedings by directing Dwivedi and other advocates to condense their extensive documentation into a one-page summary, highlighting their key arguments. The bench adjourned for the day, with the arguments set to continue on Tuesday, August 22, 2023.
Detailed Hearing:
Sr Adv Naphade: Beneath the apparent constitutionality lies patent illegality.
Naphade: The question that arises is whether there are any implied limitations on the power to modify?
Naphade: Take an example - while applying the Indian constitution to J&K, let's say that Art 14 or 21 doesn't apply. Will it or will it not trouble your conscience?
Naphade: So my first submission is that there are implied limitations on power to modify.
Naphade: You are replacing a fundamental concept of Constituent Assembly with Legislative Assembly. The legislative assembly is a creature or product of Constituent Assembly. So this exercise is not permissible.
The bench has risen for lunch.
The bench has reconvened.
Naphade: Yuvraj convened the Constituent Assembly. His authority to do so isn't questioned. So thus, J&K Constitution is a constitutional document. My submission is that no matter how widely you interpret the power under 370(1)(d), core of the J&K Constitution was prevailing.
Naphade: The core is Part V (executive) and Part VI (legislature) of the J&K Constitution.
Naphade: Sections 3 and 5, that is Part II of the Constitution also formed the core.
Naphade: There is no provision in the constitution of India by which the J&K constitution can be abrogated. The only question is whether through the route of 370(1)(d) this can be achieved. Art 370(1)(d) itself recognises Constituent Assembly.
Naphade: And the concept of Constituent Assembly is that it has to be a sovereign body. Now there can be Constitution within a Constitution. That is something your lordships have recognised.
He cites various submission to prove the argument.
Naphade: The existence of J&K constitution is recognised by the Constitution of India.
Naphade: The question therefore is, if the J&K Constituent Assembly was convened by a sovereign authority, that sovereignty merges into the sovereignty of the Constituent Assembly and it ultimately gets transferred to the Constitution of J&K.
Naphade: 370(1)(d) if it is deployed in such a manner that it results in the complete abrogation of J&K Constitution is not contemplated.
Naphade: Originally, there were two routes- one was 370 itself. After 1957, that route was closed. Then we take recourse to Article 368.
Naphade: In Sampat Prakash, Mr Dave said that your lordships have recognised that Article 370(3) is still in force. That route is obviously closed. But Sampat Prakash goes on to say that even with 368 you cannot do it.
Naphade: Every judgement in Keshavanda Bharati say that every part of the Constitution can be amended. Some judgments take the view that basic structure cannot be touched. But not a single judgement in Keshavanda Bharati which carves out that exception.
Naphade: The only route was through Article 368.
Naphade: The executive and the legislature of J&K are created by J&K constitution. By taking recourse to Article 3&4 these provisions cannot be done away with.
Naphade: The question is that does it not contemplate that the constitution of India as framed recognises the existence of J&K constitution and therefore doing away with that can only be through a constitutional process.
Naphade: The existence of the J&K constitution is a limitation both on the power of the President under Article 370(1)(d) and also the power of parliament under Article 3 and 4.
Naphade: When we talk of sovereignty, it doesn't necessarily contemplate external sovereignty. I accept that the concept of sovereignty vis a vis J&K is not external sovereignty. Because defence, foreign affairs, communication was already given.
Naphade: But the fact remains that concept of sovereignty has some content. With regards to J&K, that content is that their internal affairs be conducted atleast in accordance with Part V and VI of J&K constitution.
Naphade: In the alternative, even if we accept the concept of internal sovereignty, with respect to other states, your lordships in Bommai (judgement) has talked about internal sovereignty.
Naphade: Your lordships have specifically recognised the power to convene the constituent assembly. That's an act of sovereignty.
Naphade: What is the effect of the presidential proclamation? What is the purpose of 356? There is breakdown of the machinery, accepted. The affairs of the state cannot be carried out in accordance with Constitution, accepted.
Naphade: But does that justify doing something which is unconstitutional?
Naphade: The J&K assembly was dissolved in Nov 2018 and the governor assumed the powers under J&K constitution. And 356 proclamation came in Dec 2018. This presidential proclamation is clearly without jurisdiction.
Naphade: The reason is that the governor has already dissolved the assembly, assumed powers of the state. Certainly, governor assuming the power can't be breakdown of state machinery. It is absurd to suggest that. And therefore the president has to step in.
Naphade: It's a jurisdictional issue. 356 has been invoked for a collateral purpose. And that is apparent on the face of the record.
Naphade: If there is breakdown of machinery, what is the necessity, what is the rational nexus to suspend these provisos? There is an implied limitation on this power. Can you suspend the entire constitution? Because the president has issued a proclamation under 356?
Naphade: Once you accept that there are implied limitations, suspension of any part of the Constitution as a result of 356 must have a rationale nexus with the object that is to be achieved. And the object to be achieved is Article 355.
Naphade: Read Articles 355,356,357 conjunctively and the only result is that a State as a constitutional entity must survive.
Naphade: Ultimate design here is to abolish the state of J&K contrary to the mandate of 355. Therefore your lordships will see that the J&K Reorganization Act is borne in unconstitutionality.
Naphade: Everyone has argued that 356 is a temporary thing. Article 357, 356- they refer to state legislature's power to make law which is taken by parliament. But this is not that power. The power under the proviso is not a law making power.
Naphade: Everything the legislature does is not necessarily law making power.
Naphade: The purpose of 356 is to restore the State. I am reading from the Bommai judgement.
Naphade: Art 356 cannot be read in isolation. The purpose of 356 is to restore under Art 355.
Naphade: How long can you do away with an elected govt? This question came up before your lordships in the Gujarat Assembly case. And your lordships said 6 months.
Naphade: According to me, there is a conscious omission in Art 3 as regards power to abolish a state. Why do I say that? Not only from marginal note but also look at the text.
Naphade: There is no ambiguity at all. There is not even a whisper of abolishing of states. This is to be seen in the context of Article 1- India, that is, Bharat shall be a "Union of States".
Naphade: The existence of a State is a part of the basic structure and J&K cannot be an exception to it. Because then why not tomorrow abolish Bengal? And by what parameter?
Naphade: According to me, no two interpretations are possible. There is a conscious omission of abolishing of states. Because India is a union of states. Art 3 (the formation of new states as well as any changes or modifications to existing states' names, boundaries, or areas) has to be read with 355 (Duty of the Union to protect States against external aggression and internal disturbance) If there is breakdown of machinery, restore normalcy. You (BJP Govt) cannot abolish a state.
Naphade: What is the impact on the constitutional structure where everything has been turned upside down? Ladakh has no representative in the Rajya sabha now. People of Ladakh therefore do not count as far as Rajya sabha is concerned.
Naphade: So much for democracy. People of Ladakh have nothing to do with working of Rajya sabha including the election of the deputy chairman under Art 89, 90.
Naphade: Look at Lok Sabha. Under Art 81(2), as far as other states are concerned, the number of seats they have depends upon their population. The constitution further mandates that ratio between population and seats shall be saved.
Naphade: J&K doesn't have proportionate representation in the Lok Sabha- discrimination, Art 14. If you create more UTs, that limit of 20 will have to be crossed. Today it is 19, that's fine. But look, working of seats for other states is a different formula.
Naphade: Look at the election of president. For the election, the electorate contains MPs both RS and LS and also the legislative members of respective states. J&K is not a state so it has no say for election of President.
Naphade: This is the exclusion of such a big area- no say in the election of the President - if not by direct, by indirect method.
Naphade: J&K will have the same rights as Pondicherry. This will require a constitutional amendment. You cannot do it by law like this.
Naphade: Other disastrous consequences - Article 279A, representation in the GST council. People of J&K and Ladakh have no say.
Naphade: Appointment of HC judges- as far as other states are concerned, governor is one of the people to be consulted. Governor means aid and advice. So that also goes away. Several provisions are impacted.
Naphade: The whole constitutional structure is demolished, substantively restructured vis a vis J&K.
Senior Advocate Naphade concludes his submissions.
Senior Advocate Dinesh Dwivedi commences his arguments.
Dwivedi: I only have submissions on two things. One is the demolition of a State into UT. Please have a look at 246(4).
Dwivedi: If the text and the context, as per my submission, inevitably show that the power couldn't have survived beyond '57, there is a case to be looked into.
Dwivedi: When you breakdown a State into UT, the parliament becomes the sole legislature. When parliament is a sole legislature, the state comes out of the pedal structure.
Dwivedi: Art 1 says that India is a union of states and refers to Schedule I. Please see the schedule. It specifies the states in Articles 1 and 4.
Dwivedi: Though UTs are part of territory of India as per Art 1, as far as federal structure is concerned, UTs are not a part of the federal structure.
Dwivedi: Because there has to be "dual polity". Dual polity is that where for local issues, it is local politics and for larger issues, it is the parliament.
Dwivedi: This results in the destruction of dual polity and demolition of the federal structure. And no one can say that J&K didn't satisfy the requirement of federal structure.
Dwivedi: This is a case where the level of autonomy is stupendously raised. Nevertheless, it is a part of federal structure. But by reducing the state into UT, we're bring it under 246(4)
Dwivedi: So people of the state will now only have one legislature both for local and the national issues. Their right to be governed under a dual polity goes for a toss.
Dwivedi: IoA would not amount to surrender of sovereignty unless there is a merger agreement as happened in case of other states.
Dwivedi: The other states not only acceded before 15th August, 1947, they signed as a precondition that they'll sign the standstill agreements also which covers the matters of local concerns. After that, they acceded to UOI.
CJI: We would like to conclude this side's submission by Tuesday. Because frankly we have so much information from this side...
Chief Justice of India ask advocates to condense extensive documentation into One-Page Summary, highlight the arguments and submit the same tomorrow so that the bench will also be prepared on Tuesday.
The bench rises for the day. Arguments to continue on Tuesday (22.08.2023)