27-Feb-2024  Srinagar booked.net

IndiaKashmirJudiciary

370 Hearing, Day 14: Advocates Stress Executive Authority Over Kashmir

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Srinagar/New Delhi: On the 14th day of Supreme Court’s hearing on the abrogation of Article 370, Adv Dwivedi continued to argue that the president of India had sufficient powers under 370 to de-operationalize the provision as the word was recommendation and not concurrence with Adv Giri stating that the recommendation power of the Constituent Assembly was meant to be co-terminus with its life.  

Dwivedi stated that the proviso in Article 370(3) does not mean that if it lapses, the constituent power also lapses. He argued that the main power persists even if the proviso expires and contended that the power to amend provisions of the Constitution, as per Article 370(3), is of a constituent nature, irrespective of whether it rests with the parliament or the president.

Dwivedi asserted that the term 'recommendation' under Article 370(3) implies that the assent of the Constituent Assembly was not necessary to abrogate Article 370.

“When the proviso is removed, the main part of Article 370 expands, indicating that there's no need for approval,” he said.

Dwivedi explained that under Article 53, read with Articles 73 and 75(3), the council of ministers, collectively responsible to the parliament, can seek its views and argued that obtaining the parliament's recommendation is not foreign to the exercise of power under Article 370(3).

“We have MPs from Kashmir in the parliament as elected members, don’t they represent the will of the people.”

He discussed the status of the J&K Constituent Assembly and Constitution, asserting that Art 370 itself is the source for their creation and disappearance.

He said the JKCA (Jammu and Kashmir Constituent Assembly) was bound by various constitutional provisions, ensuring it did not adversely affect the sovereign democratic republic of India.

He likened “the methodology of JKCA to the devolution of powers concept, stressing that it was not an independent power like the Constituent Assembly of India.”

Dwivedi argued against seeking permanence based on a long-gone crown and emphasized that India's independence was not granted by the India Independence Act but was a result of India's resolve to form a republic.

Advocate Rakesh Dwivedi concluded his submissions, and Senior Advocate V Giri presented arguments on behalf of the All India Kashmiri Samaj:

Giri referred to the Instrument of Accession (IoA) and the proclamation issued by Yuvraj Karan Singh, stating that once Article 370 is removed, law-making power belongs to the Union and the state.

“Ideally, the proviso in Article 370 should have been deleted after the dissolution of the assembly in 1957, but the power of the president under Article 370(3) should still be available,” he said.

Giri pointed out that the recommendation power of the Constituent Assembly was meant to be co-terminus with the life of the Constituent Assembly, which dissolved after the state's constitution was formed.

Here is the detailed hearing:

Sr Adv Rakesh Dwivedi continues his arguments from yesterday.

Dwivedi: Looking at the nature of the power under the main part of 370(3), the proviso cannot be construed to mean that if it lapses, the constituent power lapses.

Dwivedi: Yes, the proviso is a limitation so long as the JKCA is alive. It's death doesn't mean the death of the main power.

Dwivedi: A power which enables amendment of the provisions of the Const, be it a derived constitutional power- it's nature is Constituent. The fact that it rests with the parliament or the president wouldn't make a difference. It's certainly not like the ordinance making power.

Dwivedi argues that the word 'recommendation' under Article 370(3) means that the assent of the Constituent Assembly was not necessary to abrogate Article 370.

Dwivedi takes the bench through a slew of past judgements

Dwivedi: The rider goes, the main part expands. The proviso goes, the main part expands and there would be no need for approval.

Dwivedi: The president means council of ministers and the council of ministers means collectively responsible to the parliament. So Article 53 read with 73 and read with 75(3), council of ministers can go to the parliament any time to obtain its views

Dwivedi: So the fact that parliament's recommendation has been obtained- parliament is not a foreign body. Any issue can be bought before the parliament. Obtaining of recommendation is not foreign to the exercise of power under 370(3).

Dwivedi: The whole of parliament is being taken into confidence instead of an executive action being taken. The voice of the whole country is heard, including members of parliament of Kashmir who are also represented under council of ministers

 

Dwivedi: What is the status of the J&K Constituent Assembly and the Constitution of J&K? There are two contending thoughts, the choice is between these two- we say that source for creation and disappearance of the JKCA and COJK is Art 370 itself.

Dwivedi: The petitioners contend that the source of these two bodies flows from the crown of Harisingh. That is to say, residuary sovereignty, remnant sovereignty, and internal sovereignty.

Dwivedi: From this idea of remaining sovereignty, there was a further concept introduced - bilateralism. There are two sovereigns- the main sovereign and the remnant sovereign...if you accept that some sovereignty remained after signing of IoA, that is very potent.

Dwivedi: It is to be found within the constitution of india. Let's look what Constitution of India is telling them. Note two things in 370- first is the explanation that applies to whole the article. It says, the govt means so and so.

Dwivedi: It is substituting the Maharaja as Maharaja acting on the advice of council. So the monarchy is dead.

Dwivedi: Petitioners submissions are banking on a sinking crown.

Dwivedi: In framing of the constitution, the JKCA doesn't enjoy the freedom that the Constituent Assembly of India had. It was bound by various things. It was bound so that the sovereign democratic republic of India is not adversely affected.

Dwivedi: It had to ensure justice, liberty, fraternity. It was also bound by Art 1. It could not declare that we're not the federal unit of India. That's not their own framing, they're bound to do it.

Dwivedi: They couldn't say that any part of their territory could not form a Union Territory of India. They could not also say that the people who are permanent residents will not be the citizens.

Dwivedi: Same applies to fundamental rights. It says "every citizen". These rights couldn't be denied. So they rightfully followed the dictat and applied S 10.

Dwivedi: Throughout it follows the dictat and respects the Constitution of India and there is very little difference in it. This methodology of JKCA is very akin to juristic concept of devolution of powers.

 

Dwivedi: It's not an independent power like the Constituent Assembly of India.

Dwivedi: Same applies to fundamental rights. It says "every citizen". These rights couldn't be denied. So they rightfully followed the dictation and applied S 10.

Dwivedi: Throughout it follows the dictat and respects the Constitution of India and there is very little difference in it. This methodology of JKCA is very akin to juristic concept of devolution of powers.

Dwivedi: It's not an independent power like the Constituent Assembly of India.

Dwivedi: This concept is frequently applied in UK- the parliament of UK is concerned to be supreme... They have Scotland parliament also, northern island parliament also, the Wales parliament too. So it doesn't matter that you call it sadar i riyasat, CM, Governor.

Dwivedi: The stature doesn't expand by these expressions. The stature depends on nature of power exercised. It doesn't equate with the nature of power of Prime Minister of India even if you call it Prime Minister.

Dwivedi provides the bench with two judgements on 'devolution of power'.

Dwivedi: Nehru ji himself said that the idea of having a Constituent Assembly emanated from the Government of India.

Dwivedi: Mr Sibal started from the cabinet mission plan, return of paramountcy...from there the sovereignty element is derived. What is forgotten is that cabinet mission plan was again a British device to frame a larger Pakistan within India.

Dwivedi: Three groups- central provinces: group A, north west: group B, Assam and Bengal, whole of it: Group C.

Dwivedi: Something which even the Muslim league did not demand, the British were framing. Because they wanted to control the two frontiers for geo political reasons. So they came with a cabinet mission plan.

Dwivedi: Our independence is not a grant of India Independence Act. We had already resolved to form a republic. We amended the adaptation order to make it clear to rulers of all states that the moment you sign the Instrument, you're part of the Union, you're integral.

Dwivedi: It is surprising that my friends on the right, wedded to democracy, are seeking permanence based on a crown which is long gone. The king is dead, long live the king.

Dwivedi: You don't have to accede or execute a document for the purpose of becoming units. The preamble, Art 1, 5, fundamental rights- all those make the republic. Without it, there is no republic.

Adv Rakesh Dwivedi has concluded his submissions.

Sr Adv V Giri: I beg to appear for the applicant in an IA, for the All India Kashmiri Samaj.

Giri: The IoA is dated 27.10.1947. Kindly have a look at the proclamation issued by the Yuvraj Karan Singh. The Yuvraj had the entirety of the Constitution including Art 370.

Giri: Once 370 goes and J&K integration is complete, the insignia of any sovereignty is a law making power. The law making power is with Union and state.

Giri: Ideally the proviso would've been deleted after the dissolution of the assembly in 1957. That's a different matter. But it cannot be contended that the power of the president under A 370(3) ceases to be available because the proviso is no longer available to be operative.

Giri: The recommendation power of the Constituent Assembly was intended to be co terminus with the life of the Constituent Assembly which was dissolved after the constitution of state was made.

The hearings have been concluded for the day. The court will resume hearing the matter on Monday (04.09.2023)