“Constitutions of India and J&K speak to each other through the tradition of Article 370,” Gopal Subramanium on Day 4 of hearings

On Day 4 of the hearing in a batch of petitions challenging the August 5, 2019 decision to put an end to the autonomy guaranteed to Jammu and Kashmir (J&K) under Article 370 of the Constitution, senior advocate Gopal Subramanium began his arguments by terming Article 370 as a medium through which the Indian Constitution spoke to the Constitution of J&K.

LONDON is behind all this problem,” joked respondent counsel Rakesh Dwivedi as senior advocate Dr Gopal Subramanium was about to begin his arguments today on Day 4 of the hearings In re Article 370.

May I correct my learned friend, I am not in London, I am only in the suburbs,” pat came the reply, with a smirk.  

Thus began another day of arguments on the centres of power and the suburbs of consequences.

Subramanium is representing Muzaffar Iqbal Khan, who is himself a lawyer, in the matter before a five-judge Constitution Bench led by Chief Justice of India (CJI) Dr D.Y. Chandrachud and comprising Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant.

In the first three days of the hearings, senior advocate Kapil Sibal, for the petitioners, has touched upon various issues, including the historical background in which Article 370 was drafted into the Indian Constitution.

During his arguments, Sibal challenged the three executive acts of the President of India, that is, the proclamation of President’s rule in the erstwhile State of J&K, the Presidential Order C.O. 272 and the Presidential Order C.O. 273.

The President Order C.O. 272 superseded Constitution (Application to Jammu and Kashmir (J&K) Order, 1954 (Presidential Order C.O. 48) and inserted a proviso to Article 3 (formation of new states and alteration of areas, boundaries or names of existing states) of Indian Constitution.

The proviso stated that no Bill altering the name or boundary of the State of J&K shall be introduced in the Parliament without the consent of the State legislature.

As per Presidential Order C.O. 273, as and from August 6, 2019, all clauses of Article 370 became inoperative.

Sibal called these Orders “political acts” which sought to use the constitutional machinery of India to attain legitimacy they cannot possess.

Subramanium developed some of these arguments and expounded a few arguments of his own as well.

Some preliminary submissions by Subramanium 

The constitutions of India and J&K speak to each other through Article 370

At the outset, Subramanium submitted that the Indian Constitution and the 1957 Constitution of J&Kexist together”.

In this context, he said: “Their complementary existence is the quintessence of the relationship between India and J&K.”

He called the two constitutions “complementary” to each other.

Subramanium submitted that the “basic structure” which the court will have to discern in the case to determine whether there could be abrogation of the special status under Article 370 will have to be done using both the Constitution of India as well as the Constitution of J&K.

Role of the Constituent Assembly of J&K 

The second point Subramanium made is that a constituent assembly is primarily vested with the extraordinary task of framing a constitution.

He stated that in the present case, the court is concerned with the mandate of not just one but two constituent assemblies, namely the Constituent Assembly of India and the Constituent Assembly of J&K.

Subramanium attempted to make a distinction between the powers vested in a constituent assembly as against the amending power conferred upon a Parliament or State legislature.

He urged that certain principles such as asymmetric federalism, residuary powers of the state, the right of permanent residence became an unamendable part of the Constitution of J&K and which was simultaneously reflected in the Indian Constitution as applicable to J&K.

Illegality of the impugned Presidential Orders

Further, Subramanium submitted that the two Presidential Orders that in “sum and substance” do away with the Constitution of J&K are “impermissible”.

He argued through the theory of ultra vires, which states that if an action is not aligned with the purpose with which it has been entrusted, then it can be declared as an unauthorised act.

People of J&K have a “juridical existence”

He also took up the expression “people” in the Preamble of the J&K Constitution and said that it not only refers to its ordinary meaning of “persons”, but in the context of Article 370, it also means they have a “legal and juridical existence” which cannot be neglected or overridden.

Subramanium referred to one of the observations made by the CJI in yesterday’s proceedings that the will of the people is expressed through institutions. He said a constituent assembly and a legislature of a State are both “recognised” institutions.

Degree test to be applied to access the extent of abrogation

Subramanium stated that the court must apply the “degree test” or the “effect test” to assess the extent of abrogation.

This test was applied by former Chief Justice of India Kapadia in Glanrock Estate (P) Ltd v. The State Of Tamil Nadu (2010).

The degree test was applied in terms of the amending powers of the legislature.

Justice Kapadia defined this test as: “If one finds that the constitutional amendment seeks to abrogate core values or overarching principles [such as] secularism and egalitarian equality, and which would warrant rewriting of the Constitution, then such constitutional law would certainly violate the basic structure.”

Indian Constitution recognises asymmetric federalism

Subramanium told the Bench that the Indian Constitution recognises “asymmetric federalism”.

Clarifying what asymmetric federalism means, Subramanium added that the principle states that “special conditions and special needs of people” must be taken into consideration.

Subramanium made a reference to Dr B.R. Ambedkar’s introductory speech to the Constitution, wherein the latter states that the federal structure of the Indian Constitution allows special rights and privileges to be granted to the people in a state.

State of J&K not like any other princely state

Subramanium submitted that the court should take into consideration the fact that “J&K was not like any other state”.

He clarified this argument by pointing out that unlike other princely States, J&K had its own 1939 Constitution even prior to the signing the Instrument of Accession with the dominion of India.

He also pointed out that the Indian Constituent Assembly took note of the fact that J&K enjoyed the highest form of autonomy. 

Subramanium pointed out that this was the reason for the acknowledgement by the Constituent Assembly of India, while discussing on the draft Article 306, that the Constituent Assembly of J&K is empowered to take a decision on the aspect of merger with India. 

Union wrong to believe it could exercise unilateral powers 

Subramanium moved on to address some of the main issues of whether the Constituent Assembly of J&K took any decision under Article 370(1)(d) or 370(3). 

During the previous hearings, Sibal has argued that only the Constituent Assembly of J&K was empowered to recommend the abrogation of Article 370 through the powers conferred under Article 370(3). 

Sibal had added that since the Constituent Assembly of J&K ceased to be operative in 1957, Article 370(3) can never be invoked to abrogate Article 370. It became “frozen in time”.

Subramanium used a different approach to substantiate this argument. He emphasised the importance of the debates of the Constituent Assembly of J&K.

Subramanium said that the Constituent Assembly of J&K took its decision on Article 370 in a few steps.  

Firstly, it left no doubt that it has faith [in] and respect for the people of India and that [J&K is] acceding to India.”

Second, the Constituent Assembly of J&K looked at all the Constitutions of the world to arrive at a decision of its future vis-à-vis India.

That is how they realised that “they would need some special provisions [in the context of maintaining their autonomy] while acceding to India]”, Subramanium submitted.

He pointed out that one of the special provisions under consideration by the Constituent Assembly of J&K were land reforms in the State that would affect the “hereditary State subjects” of J&K.

Summarising his second argument on this point, Subramanium said that the Constituent Assembly of J&K wanted some safeguards in the Indian Constitution to be made applicable to J&K in order to make Article 370 effective.

Third, he added that it was the Constituent Assembly of J&K that invited India under Article 370(1)(d) to make certain exceptions applicable in respect to the application of the Indian Constitution to J&K through the Presidential Orders of 1950, 1952 and 1954.

Subramanium submitted that India agreed to abide by these Presidential Orders. 

It should be noted that the Presidential Order of 1954, which superseded earlier Orders, was eventually ratified by the Constituent Assembly of J&K, Subramanium stated.

He termed these Presidential Orders as a “product of bilateralism”.

Article 370(1) a medium to respect each other’s constitutions 

Subramanium next argued that the court must look at the language of Article 370(1).

Article 370(1) starts with: “Notwithstanding anything contained in this [Indian] Constitution.”

He submitted that this shows the supreme nature of Article 370(1) under Article 370.

He stated that Article 370(1) is based on the “principles of mutuality”, which are to respect both the constitutions while preserving J&K’s desired special status.

But Article 370 did not contain the powers to abrogate a “legal compact” entered into by two sovereigns, he contended.

Subramanium argued that the Presidential Order C.O. 273, which applied all provisions of the Indian Constitution to J&K, militates against the principles of bilateralism under Article 370(1)(d).

On this issue, he pointed out that the objective of Article 370(1)(d) was to extend the provisions of the Indian Constitution to J&K subject to such “modification and exceptions” which had been bilaterally agreed between the President and the State of J&K through either “consultation or concurrence”.

Subramanium said: “These [Presidential Orders C.O. 272 & 273] completely do away with bilateralism built into Article 370(1).”

Not a repository of untrammelled application of the Indian Constitution

Next, Subramanium pointed out that the Constituent Assembly of J&K passed a formal resolution which stated that India must abide by the Presidential Order of 1954 and it must continue with clause (1) and clause (3) of Article 370.

Subramanium termed this resolution “affirmative” on the part of the Constituent Assembly of J&K.

He said that this is how the Indian Constitution and the Constitution of J&K spoke through each other, “through the tradition of Article 370”. 

In the context of the formal resolution, Subramanium also referred to the Supreme Court judgment of Sampat Prakash versus State of Jammu and Kashmir.

In the judgment, the court observes that the Constituent Assembly did not intend to abrogate Article 370, rather “it is continuous”.

Subramanium gave the example of Mohd. Maqbool Damnoo versus State of J&K, wherein Justice S.M. Sikri observed that the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, which replaced “sadar-i-riyasat” with governor by amending Article 367 of the Indian Constitution was to make the provisions of the Constitution of India as applicable to J&K in accordance with the Constitution of J&K.

Justice Sikri referred to the Maqbool judgment in Keshavananda Bharati versus State of Kerala (1973) and observed that this amendment did not alter the “fundamentals of the basic structure of the Constitution of J&K”.

Subramanium said that these submissions are answers to the question that the Constituent Assembly of J&K was silent on the fate of Article 370. 

“Dual obligations” on India

Subramanium then spoke on the dual obligation that arises from Article 147 of the Constitution of J&K and Article 370 of Indian Constitution.

Article 147 confined the powers of the legislative assembly of J&K in the context of certain laws which cannot be touched.

For instance, Article 147 of Constitution of the State bars the legislative assembly of J&K from “seeking to make any change in the provisions of the Constitution of India in relation to the State.”

Another obligation as part of the dual obligation was what the Indian Constitution offered under Article 370.

These were that the State can frame its Constitution and that certain provisions of the Indian Constitution can be applied to the State subject to exceptions.

Subramanium added that these dual obligations worked simultaneously in the context that both the constituent assemblies expressed their intention clearly on the special status of J&K.

He added that since there is no hierarchy in the constituent powers exercised by both the constituent assemblies, the legislature of J&K can never be rendered redundant.

If it was not the mandate of the Constituent Assembly of J&K to abrogate Article 370 and the power of abrogation can never be exercised by the state legislature, there is no way in which the Union Parliament could convert itself into the Constituent Assembly of the State and abrogate Article 370, Subramaniam argued.

Legal compact between two sovereigns

Further, elaborating his arguments on the legal compact entered between India and J&K, Subramanium stated that there are two types of legal compacts.

The first compact, he pointed out, is based on the traditional social contract. 

The second compact, which was entered between the two sovereigns in this case, was based on federalism.

Subramanium claimed that this form of legal compact based on federalism must be considered as “in-built” within the structure of Article 370.

CJI: Why is the expression Constitution of J&K absent from Article 370

The CJI asked Subramanium to address why the expression ‘Constitution of the J&K’ is absent from Article 370.

This issue was raised in the context of the CJI stating that the Presidential Order of 1954 stated that the residuary powers rested with the State of J&K. This limited the power of the Union, the CJI added.

While stating that these Presidential Orders were passed by the President, the CJI said that “unless there are some higher precepts in the Indian Constitution, nothing should prevent the President from modifying the terms of the power.”

Subramanium did not answer this query directly .

Instead, he submitted that Article 370 uses the term “Constituent Assembly” which was convened only for the purpose of drafting the Constitution of the State.