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On Day 15 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, additional Solicitor General K.M. Nataraj argued that the powers of the President under Article 370 are unique superior powers having the flavour of constituent, legislative and executive powers.
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AN hour into the proceedings on Day 15 of In Re Article 370 hearings, as senior advocate Mahesh Jethmalani began his submissions, the Chief Justice of India (CJI) Dr D.Y. Chandrachud asked him if he had ever been to Ladakh.
The CJI asked this question in the context of the Gujjar–Bakarwal community, some of whom Jethmalani is representing through an intervention application.
The CJI said: "Your knowledge is theoretical unless you can state with certainty before us that you have driven around in Ladakh".
Jethmalani answered: "I have been to Ladakh many, many years ago when houseboats used to flourish."
Intrigued, the CJI asked: "Are there houseboats in Ladakh? I have never seen a houseboat in Ladakh."
"No, no, [I meant] houseboats in Srinagar," Jethmalani offered a quick explanation.
Senior advocate Dushyant Dave, who is representing a petitioner, asked Jethmalani why he had been to J&K.
Jethamalani replied: "Why did I go there? I am told a lot of people go there. You should go too. Empirical evidence will stare you in the face."
Jethmalani exchanged whispers with advocate Amit Raina, who had earlier in the day presented an affidavit on behalf of a Kashmiri Pandit organisation Roots in Kashmir, accusing Mohd. Akbar Lone of anti-India activities and requesting the court to ask him to prove his allegiance to India.
After the exchange, Jethmalani added: "The Himalayan car rally which used to take place has been revived now. My daughter is scheduled to go soon to Leh, Ladakh for the Himalayan car rally… They are taking a sports car to the rally."
A five-judge Constitution Bench, headed by the CJI 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) (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.
Senior advocate V. Giri who is appearing for intervenor All India Kashmiri Samaj, continued his arguments on federalism with the opening and closing speech of Dr B.R. Ambedkar before the Constituent Assembly of India.
Quoting Ambedkar on US and Indian federalism
Dr Ambedkar made his opening speech before the Constituent Assembly of India on November 4, 1948.
Giri referred to one of the excerpts of the speech which the CJI described as "a very famous abstract from Dr Ambedkar's speech".
Giri replied: "One reads it again and again and is astounded by the vision of this great man [Dr B.R. Ambedkar]."
The excerpt of the speech Giri referred to describes two kinds of polities, unitary and federal, and says that India has chosen the latter one.
Ambedkar finds similarities between the US and Indian federal polities, saying that in both countries the "federal government is not a mere league of the states nor are the states administrative units or agencies of the federal government".
Ambedkar goes on to describe the differences between the two polities. The main difference is that the US federal system envisions "dual citizenship", one federal and the other state, while India has only one citizenship.
By dual citizenship, Ambedkar meant that states in the US can and do discriminate in matters of right to vote, to hold public office and to practise certain professions.
In India, there is no such discrimination at the state level, Ambedkar said, as quoted by Giri.
Ambedkar on why Indian Constitution is both unitary and federal
Giri continued to read from Ambedkar's speech. Ambedkar had averred that all federal systems around the world at that time were placed in a tight mould of federalism.
"No matter what the circumstances, it cannot change its form and shape. It can never be unitary," Ambedkar had said
In contrast, as Giri pointed out, the draft Constitution of India says that the country can be both unitary as well as federal "according to the requirements of time and circumstances".
For example, Article 356 has a strong unitary cadence.
Giri went on to enumerate other differences between unitary and federal polities. Federal polities usually have written constitutions, which make them rigid, as per Giri.
To deal with the inherent rigidity of federalism, countries which adopted this political system at a later date made certain changes in the traditional logic of federal constitutionalism.
For example, Australia granted the Parliament large powers of concurrent legislation and made certain Articles of the Constitution temporary to remain in force only "until Parliament otherwise provides".
Ambedkar on exclusive powers to the Union
Reading on from Ambedkar's speech, Giri made certain submissions about the exclusive powers of the Union.
Giri and the CJI read a portion of Ambedkar's speech together, which states: "The means adopted by the draft Constitution [to ensure balance within the federal system] are three: (1) a single judiciary, (2) uniformity-in fundamental laws, civil and criminal, and (3) a common All India Civil Service to man important posts."
The CJI commented: "We have seen the key features of the Constitution which make it federal. At the same time, they preserve the need for a certain degree of uniformity at the national level."
To this Giri said: "That is right."
Closing remarks of Dr Ambedkar
When Giri asked the court to refer to the closing remarks of Dr Ambedkar, both the CJI and Justice Kaul said, "Yes, November 25, 1949 [speech]."
"There is only one point of constitutional import to which I propose to make a reference. A serious complaint is made on the ground that there is too much centralisation and that the states have been reduced to municipalities.
"It is clear that this view is not only an exaggeration, but is also founded on a misunderstanding of what exactly the Constitution contrives to do."
Dr Ambedkar on residuary powers vested with the Union
Quoting Ambedkar on residuary powers of the Union Government, Giri said, "It may be that the residuary powers are given to the Centre and not to the states. But these features do not form the essence of federalism.
"The chief mark of federalism, as I said, lies in the partition of the legislative and executive authority between the Centre and the units by the Constitution."
"It is, therefore, wrong to say that the states have been placed under the Centre. Centre cannot by its own alter the boundary of that partition. Nor can the judiciary.
"Could we avoid giving overriding powers to the Centre when an emergency has arisen? Those who do not admit the justification for such overriding powers to the Centre even in an emergency, do not seem to have a clear idea of the problem which lies at the root of the matter."
"There can be no doubt that in the opinion of the vast majority of the people, the residual loyalty of the citizen in an emergency must be to the Centre and not to the constituent states. For it is only the Centre which can work for a common end and for the general interests of the country as a whole."
Giri read some lines from the next paragraph which according to him shows how "prophetic" Dr Ambedkar was.
He stopped here as the court started discussing something. However, senior advocate Dushyant Dave (presumably) said: "Let us complete reading. It is a very interesting passage."
Giri said: "Yes, yes."
Continuing from where he had left, Giri read: "It is not that India was never an independent country. The point is that she once lost the independence she had. Will she lose it a second time?
"It is this thought which makes me most anxious for the future. What perturbs me greatly is the fact that not only India has once before lost her independence, but she lost it by the infidelity and treachery of some of her own people.
"In the invasion of Sindh by Muhammed bin Qasim, the military commanders of King Dahar accepted bribes from the agents of Mahommed Bin Qasim and refused to fight on the side of their king.
"It was Jaichand who invited Muhammad Gohri to invade India and fight against Prithvi Raj and promised him the help of himself and the Solanki kings.
"When Shivaji was fighting for the liberation of Hindus, the other Maratha noblemen and the Rajput kings were fighting the battle on the side of Mughal emperors.
"When the British were trying to destroy the Sikh rulers, Gulab Singh, their principal commander, sat silent and did not help to save the Sikh kingdom.
"In 1857, when a large part of India had declared a war of independence against the British, the Sikhs stood by and watched the event as silent spectators."
After referring to the extracts of both the speeches, Giri remarked that Dr Ambedkar justified the 'slanting' of law-making towards the Union.
Article 370 a deviation from basic understanding of federalism
Giri then made a brief reference to S.R. Bommai versus Union of India (1994), in which it was held that federalism is a part of the basic structure of the Indian Constitution.
Giri pointed out that this observation was reiterated in the recent judgment of the five-judge Constitution Bench of the Supreme Court in the Government of NCT Delhi versus UOI (2023).
Here, Giri argued that considering the holistic understanding of the Indian Constitution and the relationship between the Union and states, Article 370 carved an area that is not in sync with the general federal features of the Indian Constitution.
Explaining his arguments, he said that the Indian Parliament requires consent [read concurrence] from the state on on matters to legislate on subjects not covered in the Instrument of Accession [Article 370(1)(b)(ii)] and to extend the provisions of the Indian Constitution to J&K subject to modifications and exceptions [Article 370(1)(d)].
Giri said that this sets out the relationship between Union and J&K at a level different from the "constantly interworking relationship" between the Union and all other states in the country.
He added that after the de-operationalisation of Article 370, J&K became a state at par with all other states in terms of their position in a federal structure like India.
Giri warned that if Article 370 is resurrected, India will return to a stage where there is an "oddity" in the federal structure.
He concluded that if Article 370 is resurrected by declaring C.O. 272 and Presidential Order (C.O. 273) declaration (C.O. 273) unconstitutional, this will be in violation of the basic structure of the Indian Constitution.
To this CJI remarked: "This might be too far fetched because then that would be to postulate that original Article 370 was violative of the basic structure."
He added: "You cannot invite us to hold in your favour on an unstable proposition."
Nataraj, appearing for the Union government, stated at the outset that Article 370 is the only provision in the Constitution with a self-destructive mechanism.
He added that there are other similar provisions, but their lapse is fixed by time.
The second thing he pointed out about Article 370 is that it does not confer any right to the citizens of J&K.
The third point Nataraj argued is that the continuous application of Article 370 is discriminatory and opposed to the basic structure of the Indian Constitution.
Fourth, the doctrine of federalism has no stricto sensu application under Article 370. Here, Nataraj made a reference to Article 368 and stated that the "collective consent theory" is introduced in Article 368(2).
He pointed out that Article 368 uses the term 'ratification' in contrast to Article 370(3), which uses the term 'recommendation'.
According to Nataraj, the presence of the word 'ratification' reflects the embodiment of federalism.
To this, the CJI said: "Since the adaption to the Constitution of J&K ensured that even in the matter of amendment, the President has to still go through the route of Article 370(1)(d)."
He added that an additional safeguard was introduced which states that any constitutional amendment in the aspect of J&K has to go through the route of Article 370.
Nataraj replied that reading Articles 368 and 370 in a different language will make either of the two redundant.
Justice Khanna asked for a clarification on this argument.
He added: "Mr Nataraj, what you are probably trying to highlight is that the argument that the federal structure gets affected because of abrogation of Article 370 should not be accepted for the reason that the federal structure is protected by Article 368."
Power of President under Article 370 unique
Further, Nataraj argued that the powers conferred to the President of India under Article 370 are unique and superior power.
However, they are not the constituent powers as senior advocate Rakesh Dwivedi had argued on Day 14, as per Nataraj.
Nataraj added that the President's power is neither constituent, legislative or executive power.
He said: "Although, it has a flavour of all three."
To this, the CJI said that two contrary views are being presented by the respondents.
Nataraj answered that his submissions are in agreement with the submissions of Attorney General of India R. Venkataramani that the power of the President under Article 370 is plenary.
He added that such plenary powers of the President of India are 'extraordinary' and have to be understood without any limitation.
However, Justice Kaul asked about the requirement of concurrence or consultation or recommended with the state government.
Nataraj added that the requirement remains. However, the requirements under Article 370 cannot be equated with the requirement of 'ratification' of two-thirds of states under Article 368.
Senior advocate Mahesh Jethamalani, appearing for the intervenors, certain members of the Gujjar–Bakarwal community in J&K said that the community is a Scheduled Tribe (ST), which constitutes 73.25 percent of the ST population in the state.
At the outset, Jethamalani declared that the community strongly supports the 2019 amendments because the provisions for Scheduled Tribes such as Article 330 of the Indian Constitution were never applied to J&K.
He said that his contention is limited to the challenge to the proviso to Article 370(3) and the amendment to Article 367 through Presidential Order C.O. 272.
The Presidential Order C.O. 272 substituted the words 'Constituent Assembly of the State' with 'legislative Assembly of the state'.
Jethmalani said that with respect to The Jammu and Kashmir Reorganisation Bill, 2019 and the Presidential rule under Article 356, he was adopting the arguments of the state government.
On the issue of where the actual sovereignty lies, he said this argument could be understood from the perspective of external or internal sovereignty, or political or legal sovereignty.
On the aspect of political sovereignty, he said that the same rests with the Union, qua the state. However, he added that the petitioners have not seriously challenged this aspect.
Jethamalani stated that the Preamble of the Indian Constitution reflects this notion— that the political sovereignty rests with the Union.
In contrast to this, the Constitution of J&K makes no mention of sovereignty.
However, he indicated that the Preamble of J&K mentions that J&K is an integral part of India.
Jethamalani said: "So, this is an acknowledgement of sovereignty over the state."
He also remarked that the residents of J&K are the citizens of India, but added: "Although, Akhar Lone sometimes behaves as if he is not".
Further, he submitted that legislative sovereignty is divided between the Union and J&K.
Explaining this, Jethamalani said that for the matters stated in the Instrument of Accession, the legislative sovereignty lies with the Union.
To this, the CJI added that the legislative sovereignty for matters not mentioned in the Instrument of Accession will lie with J&K.
Jethamalani said: "It will vest subject to the powers of the President to apply the provisions of the Constitution under Article 370(1)(d)."
Here, he also made a distinction between Article 370(1) and Article 370(3). As per the latter, the whole Article can be abrogated.
To this the CJI stated: "Then you necessarily accept that the concept of sovereignty has two connotations— external and internal— wherein the former completely vests with the Union of India and the latter is distributed between the Union and states."
Jethamalani replied: "Ultimate legislative sovereignty vests with the Union and that is [reflected in] Article 370(3)]… This is indicative of the fact that ultimately, you can get rid of the tunnel altogether that connects the Union with the state legally and constitutionally."
Furthering his arguments on this, he argued that Article 370(3) does not become otiose once the Constituent Assembly of J&K ceased to exist.
Jethmalani argued that the C.O.s issued since 1948 so far as they apply to the Constitution of India use the terms Constituent Assembly and legislative assembly synonymously.
He referred to Schedule II of C.O. 10 (1950), wherein legislative assembly was construed as including members of the Constituent Assembly for the purpose of the election of the President of India.
This was done by deeming fiction, he added.
Next was C.O. 39 in which elected members of the legislative assembly were deemed to include members of the Constituent Assembly of the state.
To Jethamalani's arguments that the Constituent Assembly and legislative assembly were synonymous, the CJI remarked: "The fact still remains that after the Constitution of J&K was framed on Jan 26, 1957… Article 367(4)(d) was again amended to delete clause (d). So that equivalence between Constituent and legislative assembly ceases the moment the Constitution of J&K is framed."
Jethamalani replied that clause(d) was deleted because the Constituent Assembly of J&K ceased to exist and the legislative assembly of the state was established.
He stated that after the lapse of the Constituent Assembly, the "constituent power was the legislative assembly".
Jethamalani concluded by saying: "The power of amendment in Article 368 is in virtue of a constituent power."
However, the CJI added that the legislature exercising the power of amendment does not make it a Constituent Assembly. It is only exercising a constituent power.
Senior advocate S. Guru Krishna Kumar, representing the displaced people of Pakistan-administered Kashmir, told the court that the rights perspective is the key determining factor in this case.
He said: "The rights perspective is probably the decisive factor in determining the tenability of challenges which has been mounted by the petitioners."
According to him, the rights perspective will triumph or override all contentions of procedural infirmities.
He clarified why he is making this submission and said that intervention applications represent a cross-section of people of J&K who have suffered discrimination and loss of rights.
As per Kumar, the validity of the petitioners' arguments must be seen from Presidential Order C.O. 272 and Presidential Order C.O. 273 because they gave rights across the spectrum.
According to him, these were the people including Mirpur and Gilgit–Baltistan who suffered a loss when the aggression from Pakistan took place.
Elaborating his arguments, he stated that people of J&K suffered discrimination because of Section 6 of the Constitution of J&K and Article 35A of the Indian Constitution.
Justice Khanna asked for clarification if the people of Pakistan-administered Kashmir were given rights under Article 35A.
Kumar answered that they did not have the right because the right was only extended to 'permanent residents' who are citizens of India subject to conditions.
The first condition was that the person must be a first-class or class two citizen as of May 14, 1954.
Second, having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date.
Justice Khanna asked if they would have received citizenship had they been in any other part of India.
Kumar replied: "No, in other parts of the country you will not get it."
However, Justice Khanna: "I think it is the other way round."
Senior advocate Kapil Sibal intervened and told the Bench that petitions challenging the constitutionality of Article 35A were already pending before the court.
He pointed out: "I have given the case of how around 8,700 people left that place during partition. Today, after the promulgation of impugned COs, at least 23,000 people have received domicile certificates."
Kumar also pointed out that the conditions laid down in Section 6 apply together.
Justice Khanna had earlier remarks that these conditions are alternatives to one another.
Justice also asked if clause(3) to Section 6 applied to refugees from Pakistan-administered Kashmir. However, Kumar pointed out that these considerations apply cumulatively.
However, the CJI did not agree with this reply.
Advocate Anirudha Rajput gave an international position with respect to Article 370.
He pointed out that there has been a consistent state practice of the republic of India which is reflected in the speech of former Justice M.C. Chagla before the United Nations Security Council.
In the speech, Chagla said that under international law, there is no possibility of sovereignty being retained by a constituent part which is an integral part of India.
He stated that residual sovereignty as a concept contradicts the very idea of sovereignty proposed by Jeremy Bentham.
Rajput concluded that J&K merely exercised "legislative competence" in certain areas.
To this, he added it was not necessary that the Instrument of Accession should be ratified by the Constituent Assembly.
The only requirement was Section 6 of the Government of India Act, 1947.
Rajput pointed out that this above statement was pointed out by Chagla in his speech.
Earlier in the day, in response to a point Jethmalani was making, the CJI said that the Bench has successfully identified four key areas in the case, namely, Article 370 itself, including proviso to Article 370(3); use of amending powers under Article 367; The Jammu and Kashmir Reorganisation Bill, 2019; and the Presidential rule under Article 356.
