Several petitions challenging the abrogation 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.
Senior advocate Dushyant Dave on Thursday argued in the Supreme Court that the abrogation of Article 370 is a colourable exercise of powers since the BJP government in its 2019 manifesto had proposed the repeal of Article 370.
Mr. Dave also argued that Article 370 had ‘achieved its life’ and could therefore not be abrogated after the dissolution of the Constituent Assembly in 1957. Countering such a contention, Chief Justice of India D.Y Chandrachud said that the argument that the power to abrogate Article 370 ended with the Constituent Assembly’s dissolution is belied by constitutional practice since several constitutional orders were issued after 1957.
During the proceedings, the Chief Justice also asked if the court was being invited to judicially review the wisdom underlying the decision to abrogate Article 370 while underscoring that judicial review must be confined to a constitutional violation only.
Senior advocate Shekhar Naphade apprised the Supreme Court that the abrogation has led to adverse consequences – for instance, J&K does not have proportionate representation in the Lok Sabha which amounts to a violation of Article 14 of the Constitution.
The Supreme Court said on August 10 that the surrender of Jammu and Kashmir’s sovereignty to India was “absolutely complete” with the accession of the former princely state in October 1947, and it was “really difficult” to say that Article 370 of the Constitution, which accorded special status to the erstwhile State, was permanent in nature.
Observing that once Article 1 of the Constitution says India shall be a Union of States, including Jammu and Kashmir, the transfer of sovereignty was complete in all respects, a five-judge constitution Bench headed by Chief Justice D.Y. Chandrachud said.
Schedule 1 of the Indian Constitution contains the list of States and Union Territories and their extent and territorial jurisdiction, and Jammu and Kashmir figures there in the list. The Bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, observed it cannot be said that some elements of sovereignty in Jammu and Kashmir were retained post Article 370.
Several petitions challenging the 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.
-
AUGUST 17, 2023 16:03Bench rises for the day. The hearing will resume on August 22
CJI Chandrachud: We would like to conclude this side’s (petitioners’) submissions by Tuesday.
The bench rises for the day. The hearing will resume again on Tuesday that is on August 22.
-
AUGUST 17, 2023 15:58IoA would not amount to a surrender of sovereignty; no merger agreement signed: Dwivedi
Dwivedi says that the IoA would not amount to a surrender of sovereignty because there is no merger agreement unlike in the case of other states.
‘The other states not only acceded before August 15 1947, they signed a precondition that they will sign the standstill agreements which cover the matters of local concerns. After that, they acceded to the Union of India’, Dwivedi adds.
-
AUGUST 17, 2023 15:56The right to be governed under a dual polity goes for a toss: Dwivedi
Pointing out the loss of ‘dual polity’ due to the conversion of the State into a Union Territory, Dwivedi says–
‘So people of the state will now only have one legislature both for local and national issues. Their right to be governed under a dual polity goes for a toss.’
-
AUGUST 17, 2023 15:48Union Territories are not a part of the federal structure: Dwivedi
Dwivedi says that his submissions pertain to the demolition of a State into a Union Territory. He points out that Article 1 of the Constitution says that India is a ‘Union of States’.
He apprises the Bench that although Union Territories are a part of the territory of India, as per Article 1 of the Constitution, however, they are not a part of the federal structure. He submits that by reducing the State into a Union territory, it is being brought under the fold of Article 246(4) of the Constitution.
-
AUGUST 17, 2023 15:43Senior Advocate Naphade concludes his submissions. Senior Advocate Dinesh Dwivedi commences his arguments.
-
AUGUST 17, 2023 15:43People of J&K and Ladakh do not have any representation in the GST council: Naphade
Highlighting another consequence, Naphade says that the people of J&K and Ladakh also do not have any representation in the GST council under Article 279A of the Constitution.
‘The whole constitutional structure is demolished, substantively restructured vis-a-vis J&K’, he adds.
-
AUGUST 17, 2023 15:40People of J&K have no say in the election of the President: Naphade
Highlighting how the people of J&K have no say in the election of the President, Naphade points out that for the election of the President, the electorate contains the Members of Parliament of both the Rajya Sabha and the Lok Sabha as well as the legislative members of respective states. But since J&K is not a State anymore, it has no say in the election of the President.
-
AUGUST 17, 2023 15:37J&K does not have proportionate representation in the Lok Sabha; violation of Article 14: Naphade
Naphade further highlights that J&K does not have proportionate representation in the Lok Sabha which amounts to discrimination under Article 14 of the Constitution.
-
AUGUST 17, 2023 15:35Ladakh has no representative in the Rajya Sabha: Naphade
Outlining the impact of the abrogation, Naphade points out that Ladakh has no representative in the Rajya Sabha now and that the people of Ladakh, therefore, do not count as far as the Rajya Sabha is concerned.
-
AUGUST 17, 2023 15:33There is a conscious omission of abolishing states because India is a Union of States: Naphade
Naphade submits – ‘According to me, no two interpretations are possible. There is a conscious omission of abolishing states. Because India is a Union of states. Article 3 has to be read with Article 355. If there is a breakdown of machinery, restore normalcy. You cannot abolish a state.’
-
AUGUST 17, 2023 15:23The existence of States is a part of the basic structure of the Constitution; J&K cannot be an exception: Naphade
Naphade says that the existence of States is a part of the basic structure of the Constitution and J&K cannot be an exception to this.
-
AUGUST 17, 2023 15:20Conscious omission in Article 3 of the Constitution with regard to the power to abolish a State: Naphade
Naphade submits that there is a conscious omission in Article 3 of the Constitution with regard to the power to abolish a State.
‘…There is no ambiguity at all. There is not even a whisper of abolishing of states’, Naphade adds.
[Note: Article 3 empowers the Parliament to form new States and alter or modify the boundaries of existing states]
-
AUGUST 17, 2023 15:10The purpose of Article 356 of the Constitution (President’s Rule) is to restore a State: Naphade
Naphade refers to the Supreme Court’s ruling in S.R. Bommai v. Union Of India to contend that the purpose of Article 356 of the Constitution (President’s Rule) is to restore a State.
-
AUGUST 17, 2023 14:59Jammu and Kashmir Reorganisation Act, 2019 was born in unconstitutionality: Naphade
Naphade says that the Jammu and Kashmir Reorganisation Act, 2019 was born in unconstitutionality.
-
AUGUST 17, 2023 14:56Presidential Proclamation without jurisdiction; invoked for a collateral purpose: Naphade
Naphade submits that the Presidential Proclamation is without jurisdiction and has been invoked for a collateral purpose which is apparent on the face of the record.
He asks if the entire J&K Constitution can be suspended merely because the President has issued a proclamation under Article 356 of the Constitution.
-
AUGUST 17, 2023 14:52Article 356 of the Constitution [President’s Rule] cannot be invoked to do something unconstitutional: Naphade
Opining on the purpose behind Article 356 of the Constitution [President’s Rule], Naphade argues that the provision is not a license to do something unconstitutional.
‘…What is the purpose of Article 356? There is a breakdown of the machinery, accepted. The affairs of the state cannot be carried out in accordance with Constitution, accepted. But does that justify doing something which is unconstitutional?’, Naphade says.
-
AUGUST 17, 2023 14:39The J&K Constitution acts as a limitation both on the powers of the President and the Parliament: Naphade
Naphade submits that the existence of the J&K constitution is a limitation both on the powers of the President under Article 370(1)(d) and also on the power of Parliament under Articles 3 and 4.
-
AUGUST 17, 2023 14:35J&K Constitution could have been revoked only through a constitutional process: Naphade
Naphade argues– ‘…The question is, does it not contemplate that the Constitution of India, as framed, recognises the existence of the J&K Constitution and therefore doing away with that can only be through a constitutional process’.
-
AUGUST 17, 2023 14:32The only route for abrogation of Article 370 was through Article 368 of the Constitution: Naphade
Naphade apprises the Bench that there existed two routes for abrogating Article 370. One was through Article 370 itself but this route was closed after the dissolution of the Constituent Assembly in 1957. The other way is to take recourse to Article 368 of the Constitution.
-
AUGUST 17, 2023 14:29The sovereignty of the Constituent Assembly was transferred to the Constitution of J&K: Naphade
Naphade says – ‘….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.’
-
AUGUST 17, 2023 14:28Article 370(1)(d) could not have been invoked in such a manner that it results in the complete abrogation of the J&K Constitution: Naphade
Naphade highlights that the existence of the J&K Constitution is recognised by the Constitution of India and that Article 370(1)(d) of the Constitution could not have been invoked in such a manner that it results in the complete abrogation of the J&K Constitution.
-
AUGUST 17, 2023 14:25Indian Constitution does not have any provision through which the J&K Constitution could have been abrogated: Naphade
Naphade argues that there is no provision in the Indian Constitution through which the J&K Constitution could have been abrogated. He points out that Article 370(1)(d) itself recognises Constituent Assembly and that a Constituent Assembly has to be a sovereign body.
-
AUGUST 17, 2023 14:22No matter how widely Article 370(1)(d) is interpreted, the core of the J&K Constitution will prevail: Naphade
Naphade submits that no matter how widely Article 370(1)(d) is interpreted, the ‘core’ of the J&K Constitution will prevail and that the core consists of – Part II (The State-relationship with India; the territory of J&K and powers of Legis and Executive) Part V (Executive) and Part VI (Legislature) of the J&K Constitution.
-
AUGUST 17, 2023 14:10The hearing has resumed
The Bench has reconvened. The hearing has resumed.
-
AUGUST 17, 2023 13:05The hearing will resume at 2pm
The bench has risen for lunch. The hearing will resume at 2pm.
-
AUGUST 17, 2023 13:02You are replacing a fundamental concept of the Constituent Assembly with the Legislative Assembly: Naphade
Naphade says –’ You are replacing a fundamental concept of Constituent Assembly with the Legislative Assembly. The legislative assembly is a creature or product of the Constituent Assembly. So this exercise is not permissible.’
-
AUGUST 17, 2023 13:01There are implied limitations on the power to modify: Naphade
Senior advocate Naphade submits that beneath the apparent constitutionality lies patent illegality. He argues that there are implied limitations on the power to modify.
Citing an example, Naphade says –’ Take an example – while applying the Indian constitution to J&K, let us say that Articles 14 or 21 do not apply. Will it or will it not trouble your conscience?’
-
AUGUST 17, 2023 12:58Senior Advocate Dushyant Dave has concluded his submissions. Senior Advocate Shekhar Naphade commences his arguments.
-
AUGUST 17, 2023 12:52BJP stated in the 2019 manifesto that it will repeal Article 370 : Dave
Dave points out that in the 2019 manifesto, the BJP government had stated that it will repeal Article 370. He apprises the Bench that the court had earlier underscored that manifestos cannot be contrary to constitutional values and had issued directions to the Election Commission to ensure that constitutional values are upheld.
‘….The only reason you did it is because you told the people of India that vote for me and I will abrogate Article 370. That shows that the power has been exercised for colourable considerations. Actual exercise is fraud with irrelevant considerations which cannot apply’, Dave adds.
-
AUGUST 17, 2023 12:48The parliamentary exercise was a colourable exercise of power: Dave
Dave submits that the parliamentary exercise of power, in this case, was a complete case of colourable exercise of power and that this was done because the J&K Assembly was dissolved. He contends further that the abrogation was a fraud on the Constitution.
-
AUGUST 17, 2023 12:43Do we really need to labour on the counter? How is this relevant? CJI Chandrachud asks
Addressing Dave’s argument, CJI Chandrachud asks –’ 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?’
In response, Dave says – ‘I bow down. There are no reasons available in the presidential exercise, nor are they given in the counter’.
-
AUGUST 17, 2023 12:41Centre’s counter-affidavit is a bundle of contradictions: Dave
Referring to the Union government’s counter affidavit, Dave says that it is a bundle of contradictions.
-
AUGUST 17, 2023 12:40President has exercised powers without any justification ; fraud on the Constitution: Dave
Responding to the CJI, Dave says that he wants to highlight that there has been fraud on the Constitution and that the President has exercised powers under Article 370 which he is not permitted to do. He submits further that the President has exercised powers without any justification.
-
AUGUST 17, 2023 12:36Judicial review must be confined to a constitutional violation: CJI Chandrachud
CJI Chandrachud points out that judicial review must be confined to a constitutional violation.
-
AUGUST 17, 2023 12:34CJI Chandrachud asks Dave if he is inviting the court to judicially review the wisdom underlying the decision to abrogate Article 370
CJI Chandrachud asks Dave if he is inviting the court to judicially review the wisdom underlying the decision to abrogate Article 370.
‘Are you inviting the court to review the wisdom of the decision of the government on the abrogation of Article 370? You are saying that judicial review should reassess the basis of the government’s decision that it was not in the national interest to continue Article 370?’, CJI Chandrachud enquires.
-
AUGUST 17, 2023 12:31Abrogation was an extraordinary parliamentary act: Dave
Dave says that the abrogation was an extraordinary parliamentary act – it was neither legislative nor constituent.
-
AUGUST 17, 2023 12:23Dave refers to the Supreme Court’s ruling in Sampat Prakash v. State Of Jammu & Kashmir (1968)
Pointing out the permanent character of Article 370, Dave refers to the Supreme Court’s ruling in Sampat Prakash v. State Of Jammu & Kashmir (1968).
-
AUGUST 17, 2023 12:21Dave refers to the Supreme Court’s ruling in Prem Nath Kaul v. The State Of Jammu & Kashmir to argue that the Constituent Assembly of J&K solely held the power to repeal Article 370
Dave refers to the Supreme Court’s ruling in Prem Nath Kaul v. The State Of Jammu & Kashmir (1959) to argue that the Constituent Assembly of J&K solely held the power to repeal Article 370.
-
AUGUST 17, 2023 12:20Article 370 is a reflection of the feelings of the people of J&K: Dave
Dave says that Article 370 is not merely a letter but is a reflection of the feelings of the people of J&K.
-
AUGUST 17, 2023 12:19Constituent assembly debates are instrumental in understanding the intent behind Article 370: Dave
Dave contends that the constituent assembly debates are instrumental in understanding the intent behind Article 370.
‘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 Government tells us, then we would be doing a great disservice to them. 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 adds.
-
AUGUST 17, 2023 12:14For J&K people, Article 370 was an essential feature of the Constitution: Dave
Dave submits that for the people of J&K, Article 370 was an essential feature of the Constitution. He says – ‘Today’s house has no moral or constitutional authority to do this just because it has the majority.’
-
AUGUST 17, 2023 12:10It is a wrong narrative that J&K is not a part of India because of Article 370: Dave
Dave says that there is a wrong narrative in the country that J&K is not a part of India due to Article 370. He says that it has always been an integral part of India and that such an incorrect narrative was also rejected by Jawaharlal Nehru.
-
AUGUST 17, 2023 12:07Dave refers to Dr. Gopalaswami Ayyangar’s speeches in the Constituent Assembly debates
Dave refers to statements in the Constituent Assembly debates by Dr. Gopalaswami Ayyangar.
‘Again, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the State’. [Quote from the speech]
-
AUGUST 17, 2023 12:03Except for national security, no reason has been cited for the abrogation: Dave
Dave says that it is not the case of the Union government that the abrogation was necessitated because there were impediments in running the administration of the State. He says except for national security and some violence, no reason has been cited for the abrogation.
-
AUGUST 17, 2023 11:43Power to amend Article 370 is exhausted post-1957 is belied by constitutional practice: CJI Chandrachud
Addressing Dave, CJI Chandrachud remarks –
‘Your submission is that once Constituent Assembly made its decision, there was no question of invoking the proviso to clause (3) and Article 370 becomes a permanent feature. There is one inconsistency in accepting that submission. Because if it is 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). 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.’
-
AUGUST 17, 2023 11:39Not correct to postulate that Article 370 achieved its life after dissolution of Constituent Assembly in 1957: CJI Chandrachud
CJI Chandrachud says – ‘Your whole argument is that Article 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. This means that Article 370 had continued to operate even thereafter. Therefore, it would not be correct to postulate that Article 370 achieved its life.’
-
AUGUST 17, 2023 11:37Amendments could have been brought from time to time: Dave
Dave says that amendments could have been brought through Article 370(1) of the Constitution from time to time as many provisions of the Constitution were not made applicable to J&K initially.
-
AUGUST 17, 2023 11:34How were constitutional orders issued post 1957 if the power to amend Article 370 ended with the dissolution of the Constituent Assembly? CJI Chandrachud asks
Addressing Dave, CJI Chandrachud enquires if Article 30 had served its purpose after the Constituent Assembly finished its task in 1957 then where was the opportunity to issue constitutional orders post 1957.
‘If your argument is right, where is the power to alter Constitution at all? You are saying post-Constituent Assembly, dissolution there was no power to make any changes pertaining to JK at all! There has to be a logical consistency in how we interpret Articles 370(1), (2), (3)‘, CJI says.
-
AUGUST 17, 2023 11:30Article 370 could have been abrogated only by the Constituent Assembly: Dave
Dave argues that the power to abrogate Article 370 does not lie with the President and that only the Constituent Assembly (dissolved in 1957) could have exercised such powers.
‘This Article has lived its life and achieved its purpose. Article 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’, Dave adds.
-
AUGUST 17, 2023 11:26Abrogation has to be done in concurrence with the J&K government; Governor cannot exercise onmnibus powers: Dave
Dave submits that the abrogation of Article 370 could not have been done without the concurrence of the J&K government. He says that ‘state government’ has to be understood in the context of democracy and cannot be interpreted as the Governor exercising omnibus powers.
Referring to Article 370, Dave adds – ‘Why is it temporary? Why? Because of democracy. You could only do it if Constituent Assembly approved it.’
-
AUGUST 17, 2023 11:15Abrogation of Article 370 should have been done through the exercise of constituent power: Dave
Dave highlights that he has a two-fold submission. First is that the treaty (Article 370 as an extension of the IoA) has to be interpreted in light of what the Constitution provides and second is that if the treaty has to be amended then it cannot be done through a legislative act but has to be done through the exercise of Constituent power.
‘Constitution is durable. If it served a need of the hour on that day, does not mean that the need be wished away’, Dave says.
-
AUGUST 17, 2023 11:11Makes a mockery of constitutional safeguards: Dave
Dave reads from the In Re: The Berubai judgment – ‘… the Bill has to be passed in each House by a majority of the total membership of the House and by a majority of not less than two-thirds of the House present and voting; that is to say, it should obtain the concurrence of a substantial section of the House which may normally mean the consent of the major parties of the House, and that is a safeguard provided by the Article in matters of this kind.’
‘You cannot resort to some kind of executive power, authorise the President to do this, do away with everything that Article 3 provides in the garb of Article 356 power. It makes a mockery of constitutional safeguards’, Dave adds.
-
AUGUST 17, 2023 11:07Abrogation could not have been done through the exercise of legislative power; constituent power should have been exercised under Article 368: Dave
Dave continues to read from the Supreme Court’s ruling in In Re: The Berubari. He refers to the following paragraph in the judgment–
‘Therefore our conclusion is that it would not be competent to Parliament to make a law relatable to Article 3 of the Constitution for the purpose of implementing the Agreement. It is conceded by the learned Attorney-General that this conclusion must inevitably mean that the law necessary to implement the Agreement has to be passed under Article 368’.
He contends that the abrogation could not have been done through the exercise of legislative powers and that only constituent power should have been exercised under Article 368 of the Constitution.
-
AUGUST 17, 2023 11:02The Instrument of Accession (IoA) has to be interpreted in light of Article 370: Dave
Drawing from the Supreme Court’s ruling in Re: The Berubai, Dave says that the treaty in question (Instrument of Accession) here is between the erstwhile ruler and the Governor-General which is now transfixed into Article 370.
‘It was absolute brilliant statesmanship on their part to bring that into the Constitution to assure the people of J&K that we mean what we say. So the treaty will have to be interpreted in the light of Article 370’, Dave adds.
-
AUGUST 17, 2023 10:57Senior advocate Dushyant Dave refers to the Supreme Court’s ruling in In Re: The Berubari Union
Senior advocate Dushyant Dave refers to the Supreme Court’s ruling in In Re: The Berubari Union (1960).
‘But though from the human point of view great hardship is inevitably involved in cession of territory by one country to the other there can be no doubt that a sovereign state can exercise its right to cede a part of its territory to a foreign state. This power, it may be added, is of course subject to the limitations which the Constitution of the state may either expressly or by necessary implication impose in that behalf; in other words, the question as to how treaties can be made by a sovereign State in regard to a cession of the national territory and how treaties, when made, can be implemented would be governed by the provisions in the Constitution of the country. 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. Whether the treaty made can be implemented by ordinary legislation or by the constitutional amendment will naturally depend on the provisions of the Constitution itself’. [Text from the judgment]
-
AUGUST 17, 2023 10:45The hearing has resumed
The Bench has reconvened. The hearing has resumed.
-
AUGUST 17, 2023 10:12Bench to resume hearing arguments from 10:30 am today, senior advocate Dushyant Dave will continue his submissions
The Constitution Bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant will resume hearing from 10:30 am today.
Senior advocate Dushyant Dave will continue his arguments today.
