Article 370 hearings: Did the power to abrogate Article 370 come to an end in 1957?

On Day 1 of the hearing 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, the five-judge Constitution Bench of the Supreme Court and the petitioner's counsel found themselves pondering whether Article 370 assumed a "permanent constitutional character" the moment the Constituent Assembly of Jammu and Kashmir ceased to exist in 1957. 

—

"A historic moment," said Senior Advocate Kabil Sibal while opening the case for the petitioners in a batch of petitions challenging the August 5, 2019 decision to end the autonomy guaranteed to J&K under Article 370 of the Indian Constitution.

This comes nearly four years after the passing of The Constitution (Application to Jammu and Kashmir) Order, 2019 (Presidential Order C.O. 272).

Through the passage of Article 370(1)(d), the Presidential Order C.O. 272 allowed all provisions of the Indian Constitution, including its "amendments, exceptions and modification" to apply in relation to J&K.

A batch of petitions, In Re Article 370, challenges these changes in the constitutional status of J&K.

A five-judge Bench of the Supreme Court headed by Chief Justice of India Dr D.Y. Chandrachud and comprising Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant are hearing the matter.

Some preliminary submissions for the court to ponder

At the outset, Sibal told the court that this moment is historic for many reasons. 

He said it is a historic moment because it took the court "five years" to hear the case.

It is also historic because in the last five years, there has been "no representative form of government" in J&K, Sibal pointed out.

Sibal, who is representing the former speaker of the J&K legislative assembly Mohd. Akbar Lone, continued that it is also historic because the court will have to interpret Article 356 (provisions in case of failure of constitutional machinery in states).

According to him, Article 356 of the Constitution, whose purpose is to restore democracy in a state, was used otherwise.

In this context, Sibal said: "How in that process [of abrogation] through an Article which seeks to restore democracy, you [Union Government] have decimated democracy?"

Sibal clarified all his arguments are to be considered on one premise, which is that the "integration of J&K into India remains unquestionable".

But what is questionable is the "unconstitutional" process through which the whole structure of Article 370 was changed overnight, as per Sibal.

After this, Sibal went on to read a list of dates, which included the historical context of why J&K was given special status. 

Sibal: One of the core issues to be decided is "what does a constituent assembly stand for?"

He flagged one of the issues for the court to decide:What does a constituent assembly stand for? 

Sibal went on to briefly explain what a constituent assembly means. He said a constituent assembly is meant to perform a "political exercise" which is to draft a constitution which takes into account the "aspirations of the people" and the "kind of state they want".

He added: "A constitution itself is a political document that takes into account the aspirations of several segments of society living within a united territory."

Sibal then clarified: "[But] Parliament cannot convert itself into a constituent assembly."

"Indian Parliament cannot say by a resolution that we are the Constituent Assembly," Sibal averred.

According to Sibal, once a written constitution exists, every institution underneath it is bound to follow the constitution. The Indian Constitution is no different. 

It does not give any power to the Parliament to convert itself into a constituent assembly. 

Instrument of Accession and letter to then Governor General of India

Sibal then went on to read the Instrument of Accession signed by the last Dogra Maharaja of J&K, Maharaja Hari Singh. This was a declaration made by the erstwhile ruler of the then-independent princely state of J&K and the then Governor General of India, Lord Louis Mountbatten, to conditionally accede to the dominion of India as explained by The Leaflet here.

Sibal also read a letter written by Singh to Mountbatten on October 26, 1947; a day before the Instrument of Accession was signed.

In the letter, Singh had requested India's assistance to deal with "the situation of mass infiltration of the NorthWest Frontiersmen" and in response, offered to conditionally accede to India.

Sibal also read the reply Mountbatten had sent to Singh's letter. Mountbatten's letter stated that once the issue of law and order had been restored, the question of the State's accession should be settled by a reference to the people.

Sibal added that Singh did not want to join any dominion but with the situation prevailing at that time, he had no choice.

While reading the Instrument of Accession, Sibal told the court that unlike Indian states for which "residuary powers" lie with the Union, for J&K the residuary powers rest with the State.

To this, CJI said: "Actually, as per the resolutions passed by the Constituent Assembly, it was initially contemplated that the residuary powers would rest with the states."

He added that it was eventually decided the residuary powers will lie with the Union and thus, Entry 97 of the Union List under the Seventh Schedule of the Constitution was inserted.

Sibal continued that pursuant to the Instrument of Accession, Singh issued a proclamation on March 5, 1948, establishing an interim government. 

Sheikh Mohammad Abdullah was appointed as the Prime Minister of the interim government, who along with other ministers formed a cabinet.

Sibal went on to reference various Presidential Orders (issued between 1950 and 1954 respectively) through which the various provisions of the Indian Constitution were made applicable to the J&K but with the concurrence of the State of J&K.

Sibal referred to the 1950 White Paper on Indian States, a document which clarified India's position, in which it has been stated that steps will be taken in convening a Constituent Assembly for the State of J&K.

In this context, Sibal further clarified: "My Lords know this is very important. At that time, when we became a republic, Article 370 was there. And Article 370 did mention the Constituent Assembly. But it was not convened in the State of J&K. It was [only] convened in 1951."

He added: "My point is, there was an understanding between the government of India and the State that they will have a Constituent Assembly which will determine the future course of action."

On this argument, Sibal concluded that the only reason Article 370 was a temporary provision is because it was the prerogative of the Constituent Assembly of J&K to determine whether Article 370 should be abrogated or not.

CJI: What happens after the tenure of a constituent assembly lapses?

Sibal then mentioned that the Constituent Assembly of J&K was convened through a proclamation issued by Karan Singh (the son of Maharaja Hari Singh and the first Sadar-e-Riyasat of J&K) on May 1, 1951.

Karan Singh was entrusted with responsibilities on behalf of Hari Singh in 1949 on the grounds of health issues.

The tenure of the Constituent Assembly of J&K was from 1951 to 1957.

On this, CJI asked: "With the end of the seven years, the very institution of the Constituent Assembly of the State was to lapse… Then, what happens to the proviso of [clause(3) of Article 370]?"

This question holds significance because as per proviso to clause (3) of Article 370, the "recommendation" of the Constituent Assembly of J&K is necessary for the President of India to make Article 370 inoperative.

Sibal offered his reasoning that since the Constituent Assembly of J&K ceased to exist, Article 370 cannot be abrogated. Hence, clause(3) of Article 370 becomes inapplicable. 

In other words, if Article 370 were to be abrogated, the recommendation of the Constituent Assembly of J&K is sine qua non.

However, the CJI averred that the recommendation of the Constituent Assembly of J&K is necessary "as long as it exists".

The CJI further said that if the reasoning offered by Sibal is to be taken into account then Article 370, which is a "transitional provision", assumes the character of a "permanent position" by virtue of the fact that there is no Constituent Assembly in the State after 1957.

The Bench could not accept the reasoning offered by Sibal on this argument. 

The CJI asked Sibal how clause (3) of Article 370 becomes "desuetude" when it continues to survive to date.

Justice Kant also inquired as to how Article 370 can be considered temporary when an argument is made that the provision can never be abrogated.

To this, Sibal offered another explanation. He said the court must examine the reason for the insertion of the term "Constituent Assembly" in Article 370.

As per him, it was because the Constituent Assembly of J&K had a role to play, if ever Article 370 were to be abrogated.

Justice Khanna offered his explanation to why Sibal's reasoning may not be accepted. He said that clause (2), which mentions the term "Constituent Assembly" dealt with a situation where an elected assembly was yet to be appointed. 

Henceforth, proviso three to clause (3) of Article 370 will be applicable "as long as the government of the State or the assembly is not elected", as per Justice Khanna.

The issue that remains to be addressed is whether the temporary nature of Article 370 is co-relatable to the inherent temporary nature of the Constituent Assembly of J&K? 

That is, once the Constituent Assembly of J&K ceased to exist, whether clause (3) of Article 370, which allows abrogation of Article 370, becomes otiose.