JAMMU: After a wait of almost four years, the Supreme Court on Wednesday commenced hearing on a batch of petitions challenging the abrogation of Article 370 of the Constitution that bestowed special status on the erstwhile state of Jammu and Kashmir.
A five-judge constitution bench headed by Chief Justice DY Chandrachud has started the day-to-day hearing in the matter, with senior advocate Kapil Sibal, leading the arguments on behalf of petitioners challenging the abrogation.
Sibal said that he will continue his submissions till Thursday.
Chief Justice Chandrachud said the court will allow the lead counsel from the petitioner’s side to argue on all aspects and rest of the counsel can add on certain aspects, so that there are no overlapping arguments.
The counsel from the petitioners’ side have indicated to the top court that they would take 59 hours and 45 minute for their submission spread over the next couple of weeks.
The Time Indication of oral arguments for petitioners
Sibal says that the hearing of the matter is a historic moment in many ways.
“First, your lordships will analyse why history was crossed out. Whether procedure established by parliament was consistent with what democracy stands for. Whether the will of people of J&K can be silenced?
“It is also historic because it took your lordships 5 years to start hearing this case and for 5 years there has been no representative govt in J&K,” says Sibal.
It will also be historic because your lordships will have to interpret Article 356 of the Constitution- an Article which seeks to restore democracy and how democracy has been decimated. J&K historically represented a very unique relationship unlike princely states- whether that historic relationship can be jettisoned in this manner?, Sibal asked.
Making a strong pitch, Sibal says that the court will ponder whether a governor of a state decided that he would keep the assembly under suspended animation which is the power of governor alone – without even trying to find out if they can form a government or not.
“On 19th June, a particular party withdrew support and on 20th June the governor passed this order. Whether on 1st Nov, 2018, a dissolution of assembly could have taken place before the imposition of Article 356? These are issues that will arise for your lordships consideration – never raised, never decided by this court,” he submits.
Sibal says that by signing instrument of accession with Maharaja Hari Singh, the government accepted the fact that its relationships with J&K are on a separate footing.
“The provisions of the Constitution, unless made applicable through a presidential order and agreed to by the government, shall not apply. The residuary power vests with the State. It is the state which must pass laws. Government of India can’t. The issue of repugnancy doesn’t apply. So this status is accepted. That’s how 370 came into being. And it continued.
“It was a collaborative relationship. There was a constant dialogue going on, which is why most of laws remained applicable. In a sense, they were incorporated separately in the Constitution of India in application to J&K,” Sibal says.
Sibal says that the powers of centre government were extended to Jammu and Kashmir over the years in consultation with the State.
“State was ad idem with the Union. State itself said in its Constitution that we are integrated into India. There was no question. The only thing was that there was a unique structure in place- a constitutional structure.
“That structure was suddenly done away with. With greatest respect, suddenly in parliament they said we’re doing this. No one knew about this. There was no consultation. The governor of the State and parliament decided to do this one fine morning and tossed it out,” Sibal says, referring to abrogation of Article 370.
Sibal says that there was an understanding between the GOI and the State that “we will have a Constituent assembly which will determine future course of action, determine whether 370 should be abrogated or not. That decision was with Constituent Assembly.”
This is why Article 370 was called a ‘temporary provision’, not for any other reason, he says, adding, “This whole argument that it was temporary – no!”
“The centre had to have the recommendation of constituent assembly before it could efface 370. That’s what the Constitution makers themselves thought in 1950. And that operated till 6th August. How could it change?, asks Sibal.
The CJI DY Chandrachud asks, “But how long would the tenure of the Constituent Assembly of the State be..” as Sibal replies, “1951-57”.
“So therefore, with the end of the 7 years, the very institution of constituent assembly lapses. Then what happens to the proviso?,” the CJI asks.
“In between 1951-57, the Constituent Assembly would take that decision. Thereafter there is no question,” Sibal answers.
Upon asked, What happens when the constituent assembly comes to an end, Sibal replies, “That’s precisely the point. The Constituent Assembly can’t have a life after Constitution is framed.”
The CJI says that according to the proviso to clause (3), the only safeguard is that before President does so, recommendation of Constituent Assembly is required. What happens when Constituent Assembly ceases to exist?
“That’s the point. President can’t issue such a notification,” Sibal says.
Justice Gavai comes in. “According to you, after 1957 it can’t be done at all?,” he asks. Sibal says no.
“Kindly see the scheme of 370- on four items- defence, communication, external affairs, and ancillary matters- the consultation of state is necessary. For all other, concurrence is necessary. Can you say you can do away with concurrence? If you want to abrogate 370, you have to get recommendation of Constituent Assembly which has served its term once it has framed constitution,” Sibal says.
“Are you saying that 370 which is a transitional provision, assumes the character of permanent provision, by virtue of the fact that there is no Constituent Assembly?,” asks CJI.
Absolutely, answers Sibal.
Justice Kaul pitches in, “So according to you, after 1957, sub-article 3 has become redundant?”
“Constituent Assembly even in the context of Constitution of India is redundant. Why was this clause put in 1950? Because in 1950 they said that we will have a Constituent Assembly. See the debates it will be made clear,” Sibal says.
CJI: To accept your submission, we will have to postulate that clause 3 becomes a constitutional article. How can that be? Clause 3 still continues to survive. The limitation on clause 3 may cease to operate.
Sibal: Kindly see 369, it continues to operate.
CJI: 370(1) begins with a non-obstante clause. It overrides the entire Constitution but clause 3 contains a non obstante clause which overrides clause 1 as well. 370(1) makes special provisions in respect to State of J&K. But 370(3) has a non obstante provision which overrides the non obstante clause in clause (1).
Sibal: What was the reason to mention Constituent Assembly in 370 when it was not even in place? They could have said Government of J&K. Why did they include the term constituent assembly in (3) because they knew.
CJI: Acceptance of sovereignty of the dominion of India was complete. They accepted the sovereignty for all intents and purposes. That acceptance was complete but they reserved some rights over certain legislative subjects. So the accession was complete. Consistent with that, they said that in clause (3), the president would have the right to abrogate 370.
Sibal: On recommendation of the Constituent Assembly. The reason is simple- the genesis of this was the fact that in 370 itself it was mentioned that the Constituent Assembly has a role to play in abrogation of 370. You have to see the historical perspective in which they signed the IoA. Noone disputes they’re integrated in India but subject to a constitutional provision.
Justice Khanna: If one looks at Article 370(1)(b), it deals with situation when the government or elected assembly is not in existence. So that appears to be the broad outline of this.
Sibal: The article starts by saying “notwithstanding anything in constitution” and 370(3) starts with “notwithstanding anything in the provision”.
Justice Surya Kant: So sub-article 3 according to you have become non existent. Then how does the very temporary nature of 370 survive?
Sibal: It was temporary because Constituent Assembly was not framed at that time.
Justice Kant: So if Article 370(3) goes then that means that Article 370 can never be abrogated.
Sibal: Yes! That’s the whole point. That’s our case.
“That is why I said that formation of constituent assembly is a political exercise. Look at making of nation states in europe- large empires like Austria and Hungaria. The break up of the empire led to the formation of the nation state. In India the process was opposite.
“There was disparity and there was 562 princely states and there were states with british crown and all had to be amalgamated. J&K was an exception. You cannot jettison the people of J&K and decide.
“Then what is the difference between this and the act of crown or annexation of junagadh or hyderabad? If you have agreed to a process which two sovereign authorities have accepted then you must follow it or else it is the use of paramount power.
Justice Kaul: So if an elected assembly wants to abrogate article 370 then also it is not possible?
Sibal: Not possible!
CJI: But that is only on the basis that 370 becomes permanent after CA ceases to exist. If the hypothesis is not accepted then only way is to assert that a pre independence agreement has to be enforced. Can parliament of the state have limited powers in the state?
Sibal: 356 itself is a temporary provision. What’s the purpose of 356- to restore democracy. Is the intention behind 356 to decimate democracy?
Justice Khanna: Let’s leave 356 aside for now…All other matters which are not included in clause 1 can be now be legislated upon by concurrence of government of State.
CJI: Look at clauses (b), (c), (d) in Article 370. Clause (b) refers to power of parliament to make laws for the state. It restricts it in two ways- first, those matters governed by IoA, those entries in Union & Concurrent list which are referred to IoA…
“… insofar as IoA, those have to be specified by the president in consultation with the states. Clause (b)(2) refers to such other matters in said list where state concurrence is needed.
“Now clause (c) refers to substantive provisions. Clause (d) refers to other provisions of the constitution which may be applicable under the orders of the President. Clause (d) is beyond the ambit of Clause (a).
“The first proviso refers to entries of union and concurrent list. The second proviso states “no such order”- it means orders mentioned in first order.
“In other words, the whole area of concurrence and consultation is confined to the entries of the Union and the Concurrent list. That’s clear from the scheme.
“The President is given an untrammelled power to specify which are the provisions of the Constitution which apply to J&K.
“That is conditioned to the first and the second proviso. These proviso don’t refer to substantive provisions of Constitution at all. They only refer to matters governed in Union and concurrent list.
The bench rises for lunch.
The bench reassembles after lunch and Sibal resumes his arguments.
“Article 370 states that the ordinary law making power of parliament shall be limited to those matters in the Union list and the Concurrent list which in consultation with the govt of state are declared by President to correspond to matters in IoA…
“So the parliament can only make laws in matters present in the list and that also in consultation. That’s the first limb of the argument – the restriction on law making power. Now let’s read the explanation.
“So Article 1 and Article 370 shall apply as per Article 370(1)(c). Then Article 370(1)(d) mentions others provisions excluding 1 and 370,” says Sibal.
Justice Khanna: Article 370(1)(d) cannot be read in isolation without reading sub clause 1 “Notwithstanding anything contained in Constitution”.
CJI: Brother Khanna’s reading is that it would include (c) but exclude (a) and (b).
Sibal: That cannot be.
Justice Khanna: It will. Otherwise, it will lead to a situation you’re saying that 370 is a permanent article which cannot be undone even with concurrence.
Sibal: It was temporary on 25th Jan 1950. Let’s forget about anything else. It is temporary. Why? Because the constituent assembly chose to so it’s temporary. So there is nothing wrong with that heading.
“Same template of (b) and (d) and they can reject it. They need not confirm it. That’s how you retain sovereignty,” he says.
Sibal reads Article 370(3).
“Notwithstanding is the beginning of the article…so if the constituent assembly recommended that we want to abrogate 370, on that recommendation the president will issue notification,” he says.
CJI: I just have one question. Article 370(1)(b)(i) refers to those matters in the IoA which have been ceded by the Maharaja to the Domini’s power. (b)(ii) refers to all other matters in Union and concurrent list other than what is covered.
“Suppose in the area of the Union and the Concurrent list something is not covered by (b)(i) or (ii)- that power is not entrusted to the State?
“Suppose it is not covered by (b)(i) and you have not taken the concurrence of State under (b)(ii)- on such an aspect, the state legislature cannot exercise power because it’s not on the state list.
Sibal: There is residuary power.
CJI: Residuary power came in under what?
Sibal: In Kashmir it was there from the beginning. It’s in the IoA. Residuary power was with the state legislature and state government throughout – that was the condition on which the accession took place. I’ll demonstrate that.
CJI: The recommendation of which Constituent assembly? This makes it very clear that one and only Constituent Assembly which was formed for the purpose of framing the constitution. Once the frame of the Constitution was done, it’s done.
“Constituent Assembly is not a permanent body like the parliament or Supreme Court. It’s a body which has a specific purpose and after it is done then it becomes functus officio. Once the constituent assembly has fullfilled its purpose, the proviso itself has no application.
Sibal: The problem there is that then you’re applying 3 without the proviso. Then it is blanket power.
CJI: All these provisions are in Part XXI. Part XXI has three expressions- temporary, transitional, and special. Temporary are those which are intended to be in existence for limited time without a point of terminus.
“Transitional means something which necessarily has a terminus. Third is special. Say 371- special provision for Maharashtra & Gujarat, then for Nagaland, Assam, Mizoram etc
“Then we continue to 372 which says “shall continue until altered by competent legislature.” Like the penal code.
“So Part XXI basically covers special, temporary, and transitional provisions. It doesn’t use “transitional” in any headnote or marginal note. But “temporary” and “special” are used in marginal notes. 370 specifically says temporary.
“So can we then say that power under clause (3) goes once Constituent Assembly comes to an end? Convert this to a permanent provision even though it was not intended to be?
“Why did the constitution put it in Part XXI?
Sibal: Because it’s separate. It relates to a particular state where two sovereigns have come together and made a compact which is incorporated…
“You can’t incorporate concepts outside of 370 and integrate them into 370 and say this is how we will read 370. 370 is not temporary.
“It is temporary till such time as the Constituent Assembly desires this way or that way. When the constitution came to force, there was nothing such as a constituent assembly. How did the constitution add this here?
“Because there was an understanding. Otherwise why would you bring the term “constituent assembly” under 370? Suppose the constituent assembly decided not to be with India. Then what?
CJI: There are two types of temporary provisions in Part XXI. One type is Art 369. 369 says parliament has power to make laws for a period of 5 years…so temporary with reference to time. 370 is temporary in a sense that it is temporary till abrogated.
Sibal: It was called a temporary provision because that had to be decided by the constituent assembly. And then you interpret the terms to find out how that power is to be exercised. Because it’s unlike any other State. The residuary power was already with the State.
Sibal reads from the Constituent Assembly debates.
“It is one of our commitments to the people and government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly…” This is a commitment made!
“What can be clearer than this? The last clause refers to what may happen later on, which is why it is temporary.
“The recommendation of the Constituent Assembly will be a condition precedent”- that explains the whole article. There can be nothing clearer. We, in hindsight, in 2023 can’t interpret a provision except on its terms.
“We’re hear to interpret the constitution. We’re not here to legitimise a process which is inconsistent with the express terms of the Constitution.
“This explains several things- i) why it was a temporary provision; ii) Constituent Assembly had not been constituted then. It was envisaged in our constitution that it will be constituted and the ultimate authority of abrogating 370 would be with the Constituent Assembly.
“And a precondition of that would be a recommendation of the Constituent Assembly for the president to pass an order. Absent that, it cannot be done. That was the understanding of the makers of Constitution.
“It was not a temporary provision in the sense that ultimately 370 had to be abrogated. That’s not the meaning.
“The government of the day was staring at the provisions of Article 370. According to me, through a political act, and not a constitutional procedure declared that 370 is gone.
“Such a political act cannot be determined by the parliament of India. It’s not in the remit of the parliament to take a political decision to abrogate 370.
“Nobody can deny that people of J&K are an integral part of India. But there is a special relationship – there is a unique relationship drafted in 370 itself. You can’t jettison that except by following a process ordained by law.
“I just want to mention that all the amendments sought were all rejected and withdrawn. I’ll go back to the list of dates now. It was a collaborative exercise. It was a dialogue. It wasn’t behind the back of the government of India or anything like that. They knew what was to happen in future.
“The parliament exercised the will of the people of J&K when they abrogated the Article. They took upon themselves the constitutional responsibility of saying that we’re now the legislature, we’re the constituent assembly, and we’ll exercise the will of people of J&K.
“Is that possible constitutionally? Is that envisaged in 370? Is it not an exercise of political power? Can such a power be exercised in the manner in which it was exercised? That’s a matter of procedure.
“Article 3 says they can change the boundaries- they didn’t change boundaries in this case but they changed it to Union Territory.
Sibal: You can change the boundary of a state, you can bifurcate boundaries of a large state to make smaller states. But never in the history of this country has a state been converted into a Union Territory.
Justice Kant: You can carve out a Union Territory out of a state.
Sibal: You can carve out but you can’t have all of Madhya Pradesh become a Union Territory one fine day. That is unthinkable! Under J&K there was a special provision for this.
“So you move away from representative democracy, convert it into a Union Territory under your direct rule, and 5 years have passed! Everyday we hear there will soon be elections. There has to be a constitutional basis for doing this.
“Kindly note one thing- in May 2019, there were parliamentary elections in the State of J&K. Three months after this! This happened in 6th August and in May – parliamentary elections.
“So you can hold parliamentary elections but you will not hold state elections?
“The concept of a constituent assembly is a political exercise. That political authority, that political body can decide on the future of the state.
“That’s a political decision. You want to abrogate 370, abrogate it. You want to integrate in India completely, say it. But that’s a political act. That political act cannot be exercised by parliament, a legislative body.
“Because that legislative body is controlled by the Constitution. It can’t go beyond that.
CJI: We can conclude this tomorrow.
Sibal: Deeply obliged.
The bench rises for the day.
The bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, had earlier said the hearing in the matter will be held on a day-to-day basis except on Mondays and Fridays, which are days for hearing miscellaneous matters in the apex court. Only fresh petitions are taken up on these days for admission hearing and regular matters are not heard.
The top court had earlier said the Centre’s affidavit with regard to the conditions prevailing in Jammu and Kashmir after the August 5, 2019 notification repealing Article 370 will have no bearing on the constitutional issue to be adjudicated by the five-judge bench.
On that day the Centre had stripped the erstwhile state of Jammu and Kashmir of its special status and bifurcated it into two union territories.
Several petitions challenging abrogation of the provisions of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which split the erstwhile state into two union territories – Jammu and Kashmir, and Ladakh- were referred to a Constitution bench in 2019.