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Process erasing will of people of J&K with mala fide intent can never legitimately affect Article 370, Nitya Ramakrishnan on Day 9 of Article 370 hearings

On Day 9 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 under Article 370 of the Constitution, the petitioners concluded their submissions.

TODAY, on Day 9 of the hearings In Re Article 370, the petitioners finally concluded their submissions. 

A Constitution Bench of the five senior-most judges of the Supreme Court, led 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 hearing a batch of petitions.

The petitions are challenging the de-operationalisation of Article 370 of the Indian Constitution, and the downgrading and bifurcation of the state of J&K into two Union territories.

The Bench has so far heard arguments characterising the de-operationalisation of Article 370 as a political and not a legal or Constitutional act and whether the Article has attained a permanent character in the Indian Constitution.

The question of sovereignty has come up more than once, and it has been argued that Jammu and Kashmir (J&K) never surrendered its sovereignty completely to the Union of India; alternatively, internal sovereignty was retained while external sovereignty was surrendered.

The question whether J&K merged fully with the dominion of India has also been discussed.

The significance of residuary legislative powers resting with J&K has been discussed in detail multiple times.

The Bench has heard arguments on how a treaty entered by two independent sovereign powers must be interpreted.

Arguments about the retrogression of statehood of J&K and the limits to the powers to be exercised by the President during President’s rule have also been heard.

Of the many issues, the question whether Article 370 is “frozen in time” and whether J&K “completely integrated” with India received jurisprudentially diverse opinions from different counsels for the petitioners and the Bench.

Today, senior advocate Nitya Ramakrishnan continued arguing on the issue of how integration of J&K is to be perceived.

That Article 370 is temporary for greater integration is a dubious argument

At the outset, Ramakrishnan apprised the Bench that the claims of Article 370 being temporary and its temporariness helping in greater integration of J&K with India is “fallacious”.

Explaining what integration truly means, she said: “Integration is not a measure of how much control the Centre has. It is not a function of Central control or power. It would be wrong to say that people in Union territories are more integrated than people in a Schedule VI area.

She added: “That is not how our democracy works.”

It should be noted that The Jammu and Kashmir Reorganisation Act, 2019 bifurcated J&K into two Union territories, namely J&K and Ladakh, where only the former retained a legislative assembly.

According to Ramakrishnan, once J&K had signed the Instrument of Accession, the State acceded to India and the people of J&K became “Indians”.

She pointed out that even before the Sikh regiment landed in Srinagar, local militias in Kashmir were already skirmishing against Pakhtun intruders and Pakistan army irregulars in the valley. She mentioned Maqbool Sherwani’s “martyrdom” in this context.

Political sovereignty rests with the people

She clarified that setting aside the question of whether the maharaja of J&K retained sovereignty through the Instrument of Accession, “there is a democratic argument to be made of shared sovereignty”.

As per Ramakrishnan, political sovereignty rests with the people. Therefore, at the point of the accession, the people of J&K “became sharers of India’s political sovereignty”.

She pointed out that the Supreme Court of India has recognised in the Indira Nehru Gandhi versus Raj Narain & Anr (1975), that “the notion of indivisibility of sovereignty is a medieval notion”.

Sovereignty is essentially divisible as the nation-state is an association of associations and legal sovereignty is spread over various units,” she averred.

She said that Article 370 embodies the notion of shared sovereignty and “the merging of the democratic will of the people of J&K with the rest of India”.

She said: “In my view, Article 370 reflects and incorporates the entrustment of popular sovereignty to a divisible and shared legal sovereignty between the Centre and J&K.

Just as integration is not synonymous with centralism, sovereignty is not the preserve of the Centre,” she argued.

She continued, “Article 370 also recognises the historical and geopolitical background of a democratic coming together of J&K and Indian people’s wills.”

Many have spoken about how Kashmir chose India over Pakistan. Even though they were not given the choice of a plebiscite, they chose a secular and democratic option that recognises that sovereignty vests in the people,” she argued.

Calling Article 370 a system of checks and balances between Union power and the power of a state.

Ramakrishnan: Article 370(1) survives 

The will of the people permeates every part of Article 370,” Ramakrishnan averred.

She then submitted that the condition of “concurrence” or “consultation” under Article 370(1) reflects a democratic set up. 

It is because even though there was a titular monarch, the power of consultation or concurrence was to be exercised by the governor on the aid and advice of the council of ministers.

A governor who is not advised by a council of ministers is not recognised by Article 370,” Ramakrishnan argued.

C.O. issued during President’s rule

Continuing the line of argument, Ramakrishnan submitted that any presidential orders issued during presidential proclamation under Article 356 are “incompetent”.

She told the Bench that in the last 70 years, five presidential Orders have been issued during the President’s or governor’s rule.

The first Presidential Order during the President or governor’s rule was issued in 1986. The other four were issued for extending the term of presidential proclamation in 1996.

Ramakrishnan argued that the constitutionality of presidential proclamations has never been decided by the courts.

In the case of J&K, President’s rule was imposed on December 19, 2018, and was further extended for six months with effect from July 3, 2019. Before December 19, 2018, there was governor’s rule.

Therefore, in the case of J&K, whether a government not responsible to the state legislature could have exercised the power of concurrence, is the question Ramakrishnan put before the court.

Ramakrishnan added that a power exercised under Article 370 is a “sui generis power” given to a “responsible state government”.

She emphatically clarified: “It is a power and not a function that can be taken over under Article 357 which is subservient to Article 370.”

Consent of state government not sufficient to change Article 370

Ramakrishnan further argued that the consent of the state government of J&K could not “suffice” to change the terms of Article 370. Only the Constituent Assembly of J&K has the power to recommend changes in the terms of Article 370.

She said: “The Constituent Assembly of J&K signifies an exclusive agency, which is exclusively devoted for the representation of the people of J&K.”

Therefore, according to her submissions, any recommendation to de-operationalise Article 370 must emanate from an agency which is equal in mandate and stature to the Constituent Assembly of J&K.

This is what the principle of shared sovereignty suggests, she added.

Ramakrishnan claimed that since the Constituent Assembly of J&K ceased to exist in 1957, in terms of the existing Constitution of India, this power cannot be contrived through Article 368.

Ramakrishnan further remarked: “Some thoughts and sensitivity and democratic stirrings are required to think of an agency which could express this will.”

She added: “But one thing is clear, it cannot be any agency of the Centre.

The will of the people of J&K is integral to the mode of governance specified in Article 370. A process which systematically with mala fide intent erased the will of people of J&K can never legitimately affect Article 370,” Ramakrishnan averred.

Security issues were not the reason for governor’s rule 

Further, Ramakrishnan deliberated on why governor’s rule was imposed in J&K in 2018.

Governor’s rule was imposed on June 20, 2018, because the Bharatiya Janata Party withdrew from the coalition government with the Peoples Democratic Party (PDP). The National Conference and PDP were willing to form a government soon after, and they had the majority, along with other smaller parties, but the governor dissolved the assembly without allowing them to prove their majority. 

She argued that it was not imposed due to security reasons or because the state was in danger.

Ramakrishnan questioned: “What earthly reason did the governor have to dissolve the house within 30 minutes of two political parties saying that they were ready to form a government?”

She referred to an interview of the then governor of J&K Satyapal Malik. 

In the interview, Malik said he had no information till August 4, 2019, on the attempt by the Union to end the autonomy guaranteed to J&K under Article 370.

Malik said: “I was told a day before that a letter has been sent to me which I should open in the morning and get it approved at that very moment. It was their [the BJP’s] government [at the Centre]. Whether they wanted to keep [Article 370] or remove it, why would I object?”

However, Justice Kaul remarked: “This is a post-facto statement.”

Ramakrishnan ended her submissions by stating: “Even if J&K flows with milk and honey, the argument that in order to secure people their constitutional rights and development, we have to destroy their entity and statehood is an unacceptable argument.”

Menaka Guruswamy’s submissions

After Ramakrishnan, senior advocate Menaka Guruswamy began her arguments. 

She began by answering a question put by the CJI yesterday to advocate Dinesh Dwivedi on whether statements made by an individual member of the Constituent Assembly of India can be considered as binding.

Here the statement in reference was made by Dr N. Gopalaswami Ayyangar, who was also the chairman of a committee that drafted Article 370 (draft Article 306A).

Guruswamy submitted that the question is unique in terms of the fact that the court here is not just dealing with the Constituent Assembly of India but also the Constituent Assembly of J&K.

She then told the Bench that this poses a seminal question, which is “can the Constitution of India be altered in ways opposed to the founders’ intention?”

Guruswamy pointed out that during the time of partition of India, when the Constituent Assembly of India was drafting the Indian Constitution, they were aware of what was happening in J&K.

Guruswamy added: “It was envisaged by our constitutional founders for the State of J&K to integrate with the Union of India. 

It is not just Article 1 and Article 370 which is part of that constitutional intention. It is the specific provisions of the Constitution of J&K— Sections 4 and 5. Such territorial integrity was not promised to any other state.”

She added: “This was all a part of the founding father’s intention.

Guruswamy told the Bench that there are “certain seminal founding moments” for every Constitution and specifically for India because the court has chosen to walk the path of “transformative and expansive constitutional interpretation”.

Referring to Sections 4 and 5 of the Constitution of J&K, Guruswamy argued that the abrogation resulted in vitiating the “unique internal sovereignty” that was guaranteed by both the Constitution of India and the Constitution of J&K.

This is because Part II of the Constitution of J&K categorically retains the internal sovereignty along with residuary legislative powers of the State.

She added: “This is unique to J&K. This is distinct from the rest of India where the residuary powers under Article 248 rests with the Parliament.”

She urged that the court must look at the constitutional intentions of the founders because the court’s jurisprudential mooring derives its legitimacy from nothing but the intention of the constitutional drafters.

Guruswamy also extolled the court not to do away with the legacy of constitutional interpretation shared by the founding fathers.

She argued that the Jammu and Kashmir Reorganisation Act, 2019, violated the “unique autonomy” of J&K because it abolished bicameralism in the state.

She made a reference to Article 171 (composition of the legislative councils) of the Indian Constitution. According to her, Article 171 brought diversity within the state as it allowed regional representation of the three regions namely, Jammu, Kashmir and Ladakh.

She also pointed out the Ladakh Autonomous Hill Development Council Act, 1997, provided for hill development councils. This mechanism, however, has been rendered null after the bifurcation and Union territorisation of J&K.

Guruswamy concluded her arguments by stating: “We the people through our drafters made promises. It is surely an axiom of decency and constitutional integrity to keep our promises.”

Manish Tewari submissions

Advocate Manish Tewari, representing intervenor Padi Richo, an Indian National Congress ex-member of legislative assembly in Arunachal Pradesh, began his arguments by highlighting the plausible apprehensions due to Article 370.

He said that the principle of autonomy underlying Articles 370 and 371 are almost similar. Like Article 370, which applies to J&K, six sub-parts of Article 371 along with Sixth Schedule of the Indian Constitution apply to states in the Northeast.

Tewari added: “Even a slight apprehension in the periphery of India can have serious implications. Your Lordship is currently dealing with one such situation in Manipur.”

According to his submission, the interpretation of Article 370 in this manner is likely to impact the other special provisions for the Northeast states.

However, the Solicitor General of India Tushar Mehta interrupted and immediately objected to this submission. He said: “The Central government has no intention to touch any part which gives special provisions to the Northeast and other regions. In the present case, we are only dealing with temporary provisions and not special provisions.”

This submission has the potential for mischief,” he further remarked.

The CJI joined in: “Why should we deal with anything in anticipation or apprehension? Let us not focus on the Northeast like this. The apprehension is allayed by the statement of the Central government.”

The intervention application filed by Tewari was disposed of by the court as it did not concern the de-operationalisation of Article 370. The court stated that the application has “no commonality of interest” with the case being currently heard.

Warisha Farasat submissions

Advocate Warisha Farasat, representing the intervenor, right to information activist Venkatesh Nayak, began her arguments by stating that federations can have a variety of permutations and combinations.

She gave three examples: Union territories, Union territories like the National Capital Territory of Delhi which exercises legislative powers and J&K, which was given its own Constitution and Constituent Assembly.

These examples, according to her, reflect various concepts of federalism like “holding together” and “coming together”.

To this, she added: “While most of the Indian union represents a holding together type of federation, there is multi–cultural polity with strong unity which constitutionally splits autonomy between the Union and its regions to hold those regions together. 

However, J&K represents a coming together where previously sovereign polities put together their sovereignty and resources to come together and form a more secure and long standing Union.”