Article 370 was temporary only from the perspective of J&K, not India, Dushyant Dave on Day 7 of Article 370 hearings

There were no impediments in running an administration in Jammu and Kashmir which could be removed only if Article 370 was removed, argues senior advocate Dushyant Dave on Day 7 of In Re Article 370 hearings. Terms the Constitution Orders of 2019 a "bundle of contradictions" and "fraud on the Constitution of India".

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Justice should not only be done, it should be seen to be done, so goes the hackneyed expression.

On Day 7 of the hearings In Re Article 370, the Chief Justice of India Dr D.Y. Chandrachud, who is heading the Constitution Bench hearing 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, engaged in a short and lively conversation with senior advocate Dushyant Dave about the use of technology in courts.

The judges on the Bench comprising, besides the CJI, Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant, shared their struggles with adopting new technology and getting adept at using new devices.

The CJI told Dave that some state governments are very helpful in terms of providing requisite funds for technologically upgrading high courts and lower courts while others are not.

"I won't name the state, but I remember that during the pandemic, a high court did not even have money to pay for the licences of video conferencing platforms, even though they were dust-cheap. We had to purchase a few licences and share with the high court," the CJI said excitedly.

"If your lordships can ensure that these new technologies percolate to the lowest level of the judiciary, to the mofussil courts, that would be a great service," Dave responded.

It is exchanges like this that senior advocate Rajeev Dhavan had termed during yesterday's hearing as being "in the nature of a dialogue" which opened up new possibilities.

Perhaps it is befitting then that technology has made this dialogue accessible to the general public as more and more court proceedings are broadcast live. Justice is being seen to be done.

Inevitably though, live telecasts have the tendency to turn events into performances.

We have already heard a range of arguments, and constitutional and legal emotions.

Senior advocate Kapil Sibal's opening act of Days 1–3 of the hearings, of grand gestures and the argument that since the Constituent Assembly of Jammu and Kashmir (J&K) no longer exists, Article 370 cannot be altered or abrogated.

Senior advocate Gopal Subramanium's stiff upper lip argument that the Constitution of India and the Constitution of J&K are complementary to each other.

Advocate Zafar Shah's tenor argument that the legal value entrapped in the phrase "Government of the State" in Article 370 is the will of the people of the State of J&K.

Senior advocate Rajeev Dhavan's stately examination of how the autonomy of J&K under Article 370 is enmeshed with more provisions of the Indian Constitution that has been fathomed and why such special relations between a state and the Union must be judged only on the basis of constitutional morality and India's infinite diversity and not on literal interpretations of the Constitution.

All through, the Bench has been visually steadfast in its probe of one central question: Can a sovereign country contain (puns unintended) a provision in its Constitution that does not render itself to amendments?

This has been sought to be tackled from many angles, from the angle of the 'basic structure doctrine'; from the angle of an exceptional provision, what the CJI termed as "something even beyond the basic structure"; and even from the angle of treaty law between sovereign powers.

Dhavan introduced another dimension to the debate. Can Article 370 be excised without seriously damaging the very fabric of the Constitution of India?

Enter Dave

Continuing with his yesterday's submission terming Article 370 as the "most brilliant articulation of statesmanship" on the part of the drafters of the Indian Constitution, Dave argued that Article 370 was temporary not because of the efflux of time but because of its object and purpose.

He told the Bench that Article 370 was never temporary for the dominion of India. It was temporary for the people of J&K to the extent that they could decide their fate at the hands of the Constituent Assembly of J&K.

Dave pointed out that the Constituent Assembly of J&K through the Constitution (Application to Jammu and Kashmir) Order, 1952 (Presidential Order C.O. 44) decided that Article 370 will remain operative and through the Constitution (Application to Jammu and Kashmir) Order, 1954 (Presidential Order C.O. 48) extended various provisions of the Indian Constitution to be applied to J&K.

This was where the purpose of Article 370(3) was served, the President could not make any changes in Article 370 through Article 370(3).

Dave's twofold argument on treaty and its amendment 

Dave told the Bench that his argument is two-fold. First, that the treaty has to be interpreted in light of what the Constitution provides for Article 370. 

This is based on the argument that Article 370 is an extension of the Instrument of Accession. Second, if the treaty is to be amended, it can only be done through a constituent power.

Instrument of Accession to be interpreted through Article 370

At the outset, Dave read a few lines of the Supreme Court's landmark judgment In Re: The Berubari Union & Ors (1960) to pursue his argument.

He stated that the treaty (Instrument of Accession) signed by the last Dogra Maharaja of J&K, Maharaja Hari Singh with the then Governor General of India, Lord Louis Mountbatten, to conditionally accede to the dominion of India must be interpreted in light of Article 370.

According to his argument, the Instrument of Accession has been virtually "transposed or transfixed" into Article 370.

"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 constitutional amendment will naturally depend on the provisions of the Constitution itself. We must, therefore, now turn to that aspect of the problem and consider the position under our Constitution," the judgment averred.

Dave referred to this argument to point out that the interpretation of Article 370 lies in Article 370 itself.

Only constituent powers can be exercised to amend Article 370

Further, Dave argued that to amend Article 370, a legislative power cannot be exercised. 

He relied on a paragraph of In Re: The Berubari Union wherein the court had observed: "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," Dave made a distinction between legislative and constituent powers.

The latter powers can only be exercised through Article 368 by amending the Constitution, Dave submitted.

In the previous hearing, Dhavan had suggested a similar proposition: that the power to amend Article 370 must only be through Article 368. There was no way in which the President could have exercised powers and that too during a Presidential proclamation under Article 356.

A Presidential rule was proclaimed on December 19, 2018 (when J&K was put under President's rule after being under governor's rule for six months). This was extended for another six months.

Elaborating further on how an amendment under Article 368 can take place, Dave read another paragraph of In Re: The Berubari Union: "On the other hand, it is clear that if the law in regard to the implementation of the agreement is to be passed under Article 368, it has to satisfy the requirements prescribed by the said Article.

"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."

Dave remarked that this is the safeguard clearly mentioned in the Constitution and one cannot resort to some executive act. 

He remarked: "You cannot resort to some kind of executive power… authorise the President to do this, and do away with everything that Article 3 provides in the garb of Article 356 power. It makes a mockery of constitutional safeguards … because Your Lordship knows what happened in 1975."

He added: "Constitution [of India] is durable. If it serves a need of the hour on that day, does not mean that the need be wished away because you have a majority."

Definition of state does not include Union territory 

Dave briefly told the Bench that the In Re: Berubari Union judgment also makes it clear that the definition of state under Article 3 does not include Union territory. 

Re: Berubari Union states: "It is significant that Article 3 in terms does not refer to the Union territories and so, whether or not they are included in the last clause of Article 3(a) there is no doubt that they are outside the purview of Article 3(b), (c), (d) and (e).

"In other words, if an increase or diminution in the areas of the Union territories is contemplated or the alteration of their boundaries or names is proposed, it cannot be effected by law relatable to Article 3. This position would be of considerable assistance in interpreting Article 3(c)."

How is Article 370 understood?

Dave then took the Bench to the bare reading of Article 370.

He said that Article 370 has to be understood first from Article 370(1)(c) which emphatically states that only Articles 1 and 370 of the Indian Constitution are to be applied to J&K.

All other articles of the Constitution are to be applied under Article 370(1)(d) subject to "exception and modifications" as the President of India may by Order specify.

The proviso to Article 370(1)(d) adds that if a matter relates to the subject matter specified in the Instrument of Accession, the "consultation" of the state government would be required. For all other matters, the "concurrence" of the state government would be necessitated. 

Dave offered an explanation of what the state government means in Article 370.

He said: "State government here must be understood in the context of democracy. It cannot be understood in the context of Article 356 or the governor exercising omnipotent powers".

Dave further informed the court that under Article 370(3), the President can either declare that Article 370 has become inoperative or will continue to exist. However, for the President to do either, a prior consent of the Constituent Assembly of J&K is a condition precedent.

Dave said: "The President cannot rewrite this [Article 370 as was done through the Presidential Order C.O. 272]."

He pointed out that after the Presidential Order C.O. 48, the President had no power to re-exercise this power under Article 370(3).

Dave said: "It will be a travesty of justice for the government of India to act on it … It was a one-time exercise. It was not meant to be exercised again and again."

According to him, even the Constituent Assembly of J&K did not have the power to decide, again and again, if they wanted to remain with India or not.

Dave also answered why Article 370(1) survives.

He said: "Article 370 has lived its life and achieved its purpose. Article 370(1) survives because if tomorrow the Constitution [of India] is amended and a new Article is inserted, we would want it to apply to J&K also. The President then seeks the government's view and then extends the Article."

Dave submitted that after the Constituent Assembly of J&K decided on the limited applicability of the Constitution of India, the President became functus officio, that is, the authority of the President in that context came to an end.

"Article 370(3) becomes untouchable. President cannot revisit that article," Dave averred.

He pointed out that the Supreme Court in Prem Nath Kaul versus The State of Jammu & Kashmir (1959) and Sampat Prakash versus State of Jammu & Kashmir (1968) accepted this position, that the authority of the President in the context of Article 370(3) came to an end post 1954.

If Article 370(3) perishes, how can Article 370(1) stay

It appeared that the CJI was not inclined to accept Dave's argument.

The CJI questioned how the Constitution Orders after 1957 were applied if the power under Article 370(3) does not survive. That is, if the power to amend Article 370 ceased to exist, what was the basis of the Constitution Orders issued for 64 years?

According to the CJI, the powers under Article 370(1), (2) and (3) must be seen in tandem with each other even though the modality of interpretation and application may differ.

"Either everything remains together or they perish together," the CJI said.

To this, Dave answered: "Then, let it perish together."

Dave reasoned that the powers of amendment under Article 370(3) bear no relation with the powers of Article 370(1) which continued to survive when the Constituent Assembly of J&K ceased to exist. It was through Article 370(1) that the Constitution Orders were applied.

However, the CJI said that it would not be correct to postulate that Article 370 had achieved its life.

He said: "Your submission is that once the 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 government of India that amendments were being made by the Constitution Orders even after 1957 and until the disputed amendment of 2019."

Constituent Assembly debate: Why Article 370 should continue to be in place?

Dave referred to the constituent assembly debates of Dr Gopalaswami Ayyangar. Ayyangar headed the committee which drafted Article 370 (draft Article 306A).

Ayyangar in his October 17, 1949 speech said: "[S]o the provision is made that when the Constituent Assembly of the State has met and taken its decision both on the Constitution for the State and on the range of federal jurisdiction over the State, the President may on the recommendation of that Constituent Assembly issue an Order that this Article 306A shall either cease to be operative, or shall be operative only subject to such exceptions and modifications as may be specified by him. But before he issues any Order of that kind the recommendation of the Constituent Assembly will be a condition precedent."

Dave referred to this part of the debate as reflecting the "essential feature of the Constitution of J&K."

Pointing to this debate, Dave remarked that today's Parliament has no moral or constitutional authority to undo Article 370 because the current regime has an overwhelming majority.

He added: "Article 370 is not just a letter but a reflection of the feelings of the people of J&K."

Dave added that it is not the case of the Union that they faced impediments in running the administration of the State.

"Except for national security and some violence, the Union has given no reason for abrogation, and those two issues have got nothing to do with the abrogation," Dave contended.

Judicial review over the decision to abrogate?

Dave also read the common counter affidavit filed by the Union of India, in which the government has stated that the Constitution Orders issued under Article 370 were impeding rather than enabling the integration of J&K with India.

Dave stated that the Constitution Orders were not in the national interest of India.

The CJI wanted to know if Dave was asking the court for a judicial review of the decision of the government to abrogate Article 370.

The CJI clarified that only constitutional violations are amenable to judicial review and not executive action per se.

Dave replied that the President of India had purportedly exercised powers under Article 370 when passing the Constitution Orders. He contended that since the court had held in Shemshar Singh versus State of Punjab (1974) that the President can only exercise powers in the constitutional sense and not in his personal capacity, the present case was fit for a judicial review.

He added that what the President did was nothing but a "fraud on the Constitution".

Dave referred to the counter affidavit as a "bundle of contradictions".

He also stated that the Parliamentary recommendation suffers from the doctrine of colourability.

He referred to K.C.Gajapati Narayan Deo versus The State of Orissa, in which the court explained colourable legislation.

Dave said that through the abrogation of Article 370, the delicate balance of powers has been destroyed.

Dave told the Bench that although Article 370 falls in Chapter XXI of the Constitution which is titled as "Temporary, transitional and special provisions", Article 370 is temporary only from the perspective of J&K.

It is not temporary from the perspective of India.