After 70 years of concurrence and consultation, why retain the empty shell of Article 370? Rakesh Dwivedi on Day 14 of the hearings

On Day 14 of the hearings in a batch of petitions challenging the August 5, 2019 decision to put an end to the autonomy guaranteed to J&K under Article 370 of the Constitution, senior advocate Rakesh Dwivedi argued that the source of creation and disappearance of the Constituent of J&K and the Constitution of J&K is Article 370 itself. 

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"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," said senior advocate Rakesh Dwivedi as he continued his submissions defending the de-operationalisation of Article 370.

A five-judge Constitution Bench, headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud and also comprising Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant, is currently hearing a batch of petitions challenging the de-operationalisation of Article 370 and bifurcation and retrogression of statehood of Jammu and Kashmir (J&K).

Through the Constitution (Application to Jammu and Kashmir) Order, 2019 (Presidential Order C.O. 272) on August 5, 2019, the special status of J&K under Article 370 of the Indian Constitution was abrogated and the state of J&K was divided into two Union territories— J&K and Ladakh.

Today, the court entered its Day 14 of the arguments.

Today, Dwivedi briefly reiterated his submissions from yesterday that the constituent powers of the President of India under clause (3) of Article 370 did not lapse with the lapse of the Constituent Assembly of J&K.

He added that the proviso to clause (3) of Article 370 adds a limitation to the power of the President. However, the limitation was only operational till the Constituent Assembly of J&K was alive.

Dwivedi added that once the Constituent Assembly went, it did not mean that the bigger powers of the President exercised under Article 370 went away as well.

Power to federalise all states at par

Dwivedi stated that the framers of the Constitution of India envisaged a policy of federalism that treats all states at par. According to him, this equanimity remains the basic feature of the Indian Constitution.

As per Dwivedi, since no other state of India has the power to exercise sovereignty except under List II of the Seventh Schedule, an exception should not be made of J&K.

He continued: "Any unique power [as contemplated under Article 370 in comparison to other Indian states] which is founded on special conditions can never be permanent because the moment conditions change, the provisions [granting that power] are apt to change."

"So, there is no point in taking us through all the provisions for the northeastern states," Dwivedi asserted.

According to him nobody claims a permanence for the special provisions for the northeastern states because they can always be amended. 

He said: "They came through the route of Article 368. They will go through the route of Article 368."

Dwivedi added: "In case of J&K, the problem is that Article 368 is barred and it says the signpost is Article 370, more specifically the proviso to Article 370(3)."

Interestingly, on Day 9, senior advocate Manish Tewari, representing intervenor Padi Richo, an Indian National Congress ex-member of legislative assembly in Arunachal Pradesh, had argued that the manner in which Article 370 has been interpreted could have implications for Article 371 of the Indian Constitution.

The court had rejected the intervention application after the Solicitor General of India Tushar Mehta informed the court that the Union government had no intention to touch the provisions for the northeastern states, which were "special" and not "temporary".

Core power of federalism cannot disappear

Dwivedi developed his argument on federalism, which is intended to bring all states at par.

According to Dwivedi, the proviso to Article 370(3) represents the core power of federalism which is a basic feature of the Constitution of India. It cannot disappear because some subordinate body has become non-existent.

For elaborating the constituent powers of the President, Dwivedi referred to the Kesavananda Bharati versus State of Kerala (1973).

He told the court that the principle observed in this judgment is that the constituent powers are those that enable the amendment of the provisions of the Constitution.

It is immaterial whether the constituent power is vested in the Parliament or the President, as the head of the executive, Dwivedi argued.

"The nature of the constituent power is certainly not similar to ordinance-making power," he averred.

Here, he made a distinction between the constituent powers vested in the President under Article 370 and the ordinance-making power of the President.

Article 123 allows the President to promulgate ordinances when the Parliament is not in session.

According to Dwivedi, the ordinance-making power "specifically and expressly" is said to have the force of the law made by the Parliament.

Dwivedi meant that the ordinance power is considered as law till the time Parliament ratifies it since the power is exercised when the Parliament is not in session.

To this, the CJI stated: "In fact, the ordinance-making power will support your submissions because the fact that the power is not vested in Parliament, in this case the legislative or the ordinance-making power, is not dispositive of the nature of the power."

The CJI offered certain examples to explain his statement. He said that legislative powers are vested with the judiciary to frame its own rules. This is an exception to the separation of powers.

Then he gave the example of the power vested in the Parliament to punish for its contempt. This power is judicial in character.

Dwivedi replied: "It is an original power flowing from the Constitution of India and not otherwise."

The CJI then asked Dwivedi: "So, according to you, the power vested in Article 370 is a constituent power?"

Dwivedi replied in the affirmative.

He said that Article 370 allows the provisions of the Constitution to be extended to J&K subject to modifications and exceptions.

As per the Presidential Order C.O. 272, all provisions of the Indian Constitution were made applicable to the state by adding clause(4) to Article 367 in the context of J&K. 

Proviso goes, main part expands

While arguing on the proviso to Article 370(3), Dwivedi made a reference to various provisions of the Indian Constitution, such as Article 117.

As per Article 117(1), for making any amendment to Article 110 (money Bill) no Bill can be introduced or moved except on the recommendation of the President. Such a Bill cannot be introduced in the council of states.

Referring to Article 117, Dwivedi said that this was a perpetual provision.

He pointed out an interesting fact; that a Bill under Article 117 is to be placed before the Lok Sabha by the council of ministers, who then make a recommendation to the President, who is also the head of the council of ministers.

"This is relevant for the discussion on Article 370(3)," Dwivedi asserted.

"Our constitutional framers do contemplate a situation where the council of ministers is at both ends. On one hand, it is seeking approval through the President and on the other hand, it is itself framing the Bill," he explained.

To this, the CJI added: "The President is acting on the advice of the council of ministers."

Dwivedi replied: "In a way, it appears superfluous because if the cabinet has to place it before the President, he has to, anyway, sign it and recommend it."

The CJI offered an explanation as to why it is the council of ministers that has to recommend.

He said: "Under Article 84, the Parliament consists of the President and the two Houses of the Parliament. The Parliament does not consist of the council of ministers because they are anyway members of the Parliament."

Another reference was made to Article 146(2) wherein the approval of the President is required on account of the financial implications of the provision.

Reading the proviso to Article 146(2), Dwivedi questioned if the provision itself becomes defunct if the proviso is deleted through the route of Article 368 to ensure greater financial independence.

Here he referred to the argument made by senior advocate Gopal Sankaranarayanan about the use of colons in statutes. He said that the use of colons in a provision or where a proviso is added suggests that the clauses are rolled into one.

Dwivedi countered this argument and said that in grammatical terms, colon suggests nothing but an addition.

He said: "Colon is generally used as a rider. Once the colon goes, the main part expands."

On Presidential C.O. 273

Dwivedi also referred to the Presidential Order (C.O. 273) declaration (C.O. 273), which made all parts of Article 370 extinct. The excerpt he referred to reads as:

"All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of J&K notwithstanding anything contrary contained in Article 152 or Article 308 or any other Article of this Constitution or any other provision of the Constitution of J&K or any law, document, judgement, ordinance, Order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 or otherwise."

Here, Dwivedi clarified how the Parliament exercised its powers in de-operationalising Article 370 through Article 370(1) and (3).

He said that one possible route could be the one suggested by the Solicitor General Tushar Mehta and Attorney General of India R. Venkataramani.

The duo has suggested, at different points, that Article 370(1)(d) allowed the President to modify Article 367 to replace the expression "constitutional assembly of state" with an expression providing for a similar framework.

Thus, it was replaced by the expression "legislative assembly of state".

Dwivedi continued that if the President means the council of ministers, which is responsible to the Parliament, it means Article 53 read with 73 and 75(3) allows the council of ministers to approach the Parliament to obtain its views anytime.

"So, the fact that the recommendation of the Parliament has been obtained is alright as the Parliament is not a foreign body. As per parliamentary rules, any issue can be brought before the Parliament, resolutions can be passed and views can be obtained."

So, obtaining a recommendation of the Parliament under Article 373 is not unusual and can be obtained under Article 370(3) by the council of ministers on account of Articles 53, 73 and 75(3).

He added that this is the best route to go to the Parliament because since a big decision is taken, the whole Parliament is considered.

"The voice of the whole country is heard, including the members of the Parliament from Kashmir who are also represented in the council of states," Dwivedi said.

Therefore, C.O. 273 is sustainable on its own.

Dwivedi further questioned the arguments of the petitioners in which they stated that since Article 370(3) became otiose, only Article 370(1) survived.

He said that over the course of years, almost all provisions of the Indian Constitution have been extended to J&K through the passage of Article 370(1)(d). So, seeking permanence of Article 370(1) has become absurd.

"Very little remains in Article 370(1)(b) and (d). So permanence for that?" Dwivedi questioned.

He added: "It really leads to the principle that we must avoid absurdity."

Status of Constituent Assembly and Constitution of J&K 

Dwivedi suggested that the source for the creation and disappearance of the Constituent Assembly of J&K and the Constitution of J&K is Article 370 itself.

He also mentioned the arguments of the petitioners that the Constituent Assembly and the Constitution of J&K flow from the crown of Maharaja Hari Singh via the Instrument of Accession.

The counsels for the petitioners had suggested variously that three kinds of sovereignties rested with the maharaja: residuary, remnant and internal sovereignty, Dwivedi reminded the court.

Justice Khanna intervened and said, "[You are missing] shared sovereignty."

Dwivedi replied: "My friend [senior advocate] Nitya Ramakrishnan used a different connotation."

He averred: "We are all sharing. We are all co-sharers of sovereignty. Every individual is a co-sharer of sovereignty."

Dwivedi argued that by theorising on the divisibility of sovereignty, the petitioners had made room for notions of bilateralism and compact (as in treaty) between two sovereigns vis-à-vis Article 370.

He said: "As per the petitioners, there are two sovereigns involved. One remnant and one main. So, the two sovereigns are talking to each other or whispering to each other and from all those theories [of the petitioners]  bilateralism emerges."

Dwivedi said that if the court decides to accept the arguments of the petitioners that some sovereignty remained after the signing of Instrument of Accession and after Karan Singh (the first rajpramukh of J&K)'s proclamation that the relationship of J&K and India will be defined by the Constitution of India, then that expression is potent.

He said that one does not have to go outside the boundaries of the Constitution of India as applicable to the J&K.

He said: "[Everything] has to be found within the terra firma of the Constitution of India."

Interpretation of Article 370

Dwivedi then examined different clauses of Article 370.

He referred to the explanation to Article 370 which he said applies to the whole Article.

He further said that the explanation substitutes the word 'maharaja' with the expression 'maharaja acting on the advice of the council of ministers'.

"So, the monarchy is dead. The popular rule came when the maharaja was neck deep in trouble on October 25, 1947, when the war was already raging. 

"Everything was virtually lost. Almost nothing was left of his sovereignty. It is on that sinking crown on which the petitioners' submissions are banking," Dwivedi remarked. 

He added that Jawaharlal Nehru had advised the maharaja that Sheikh Abdullah, the most popular leader in J&K at that time, be released from prison. After his release, Abdullah established an interim government.

Dwivedi stated that it was not just Hari Singh but also Sheikh Abdullah who together agreed to the accession.

Further, he stated that the purpose for framing the Constitution of J&K is laid down in Article 370(2). While  framing the Constitution of J&K, the Constituent Assembly of J&K did not enjoy the freedoms which the Constituent Assembly of India did.

The Constituent Assembly of J&K was bound to frame the Constitution of J&K in a manner which does not adversely impact India.

They were also bound by Article 1 of the Indian Constitution and could not declare that they were not a part of the federal unit of India.

They also could not say that any part of the territory of J&K will not form a part of the Union territory as per Articles 1 and 3 of the Indian Constitution.

The Constituent Assembly could not also say that they are not domiciled in the territory of India. According to Dwivedi, there is just one domicile— India.

Dwivedi added that the people of J&K accepted that they are  citizens of India as per Section 5 of the Constitution of J&K.

Dwivedi says that this was not the gift of the Constitution of J&K. This was a gift of the Constitution of India and more like a dictation of the Indian Constitution.

He also mentioned that the petitioners wrongly claim that Article 136 was not applicable to J&K. Depriving the extension of Article 136 to J&K was a huge denial of rights.

Dwivedi argued that there is nothing peculiar in the Constitution of J&K except Article 147 which says that the Indian Parliament cannot amend the Constitution of India as applicable to J&K.

According to him, the methodology used by the Indian Constitution to convene and enforce the Constituent Assembly of J&K and the Constitution of J&K is very akin to the juristic concept of 'devolution of powers'.

This connected his argument to the previous claim that the Constituent Assembly of J&K had limited powers.

He said that unlike the powers of the Constituent Assembly of India, the powers vested in the Constituent Assembly of J&K through the proclamation Karan Singh is not an independent power.

Dwivedi also contended certain arguments made by senior advocate Shekhar Naphade.

He said that once the Constitution of India was enforced, the monarchical powers of Maharaja Hari Singh disappeared.

Soon after the proclamation as rajpramukh of Karan Singh in 1951, former Prime Minister Jawaharlal Nehru on June 26, 1952, gave an idea to Maharaja Hari Singh and Sheikh Abdullah that a Constituent Assembly of J&K should be convened.

Dwivedi stated that the maharaja thought of convening a national assembly. He said: "He .[Maharaja] was still dreaming of independence. When the whole of J&K comes and when there is a plebiscite, they will decide whether to accede or not."

Advocate V. Giri's submissions

Advocate V. Giri, appearing for intervenor All India Kashmiri Samaj, concurred to the arguments of Dwivedi in the aspect that no sovereignty was retained by J&K after the Constitution of India was enforced and the proclamation of Karan Singh which clarified the bounds of relationship of J&K with India.

He argued that no sovereign remained in J&K except what is mentioned in Article 370.

He also mentioned that the powers exercised by the President of India from time to time in India under Article 370 is also through the root of Article 370 itself.

So, to make an argument that the sovereignty was retained must be reflected in Article 370 which it does not, according to Giri. 

He said: "Why is there an argument to make Article 370 permanent? To confer any rights? Apparently not. Then what for? What is the entrenchment of right that petitioners are really concerned about? 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 the Union and and the state"

Further, Giri pointed out that the framers of the Constitution of India were aware of the fact that the Constituent Assembly of J&K is convened for a specific purpose and that it would have a natural death.

So, he asked: "Were they not aware that the recommendatory powers of the Constituent Assembly will be co-terminus?"

He said that no interpretative tool ushers an interpretation which suggests that Article 370 as a whole or Article 370(3) becomes inoperative once the proviso to Article 370(3) becomes inoperative.

Giri suggested that ideally the proviso to Article 370(3) could have been deleted after the dissolution of the Constituent Assembly. 

Giri will continue his arguments on Monday on federalism.