Self-governance is better than good governance, Zafar Shah on the final day of Article 370 hearings

Today was the 16th and last day of a hearings marathon on a batch of petitions challenging the Indian Union’s August 5, 2019 decision to put an end to the autonomy guaranteed to J&K under Article 370 of the Constitution. The Constitution Bench of the five senior-most judges has reserved the case for judgment.


AT the fag end of 16 long days of In Re Article 370 hearings, senior advocate Dushyant Dave pleaded, beseeched and entreated the Bench for an extra 15 minutes.

It has been that kind of a case.

On a day when the arguments before a five-judge Constitution Bench led by the Chief Justice of India (CJI) Dr D.Y. Chandrachud, senior advocate Kapil Sibal continued his rejoinder submissions.

But before Sibal could begin, advocate Bimal Roy Jad, representing a Kashmiri Pandit organisation ‘Roots in Kashmir’, interrupted and informed the court that he has filed additional affidavits providing more ‘details’ of the ‘anti-State’ activities of lead petitioner Mohd. Akbar Lone.

Lone is member of Parliament from the Baramulla constituency in Kashmir valley and a former minister of higher education of Jammu and Kashmir (J&K)  and speaker of the J&K legislative assembly.

Incidentally, Sibal is arguing Lone’s petition.

Yesterday, Jad told the court that he had filed an affidavit against Lone which proved that he had chanted ‘Pakistan zindabad’ slogans in the J&K assembly in 2018.

The Solicitor General of India Tushar Mehta had requested the court to ask Lone to file an affidavit declaring his ‘allegiance’ to the Constitution of India.

Today, Mehta wanted to read portions of the new affidavit filed by Jad, but Sibal asked the court not to waste the petitioner’s time thus: “I am sorry to say, this is all being televised.”

The CJI told Mehta not to read the portions of the affidavit he wanted to refer to aloud but just name the paragraphs so that the Bench could examine them.

Mehta did so and enquired from Sibal when Lone was filing an affidavit, as Sibal had promised the Bench yesterday.

Mehta also submitted that Lone’s affidavit must clearly state that he is ready to withdraw all these statements and does not support terrorism and other separatist activities. 

To this, Sibal: “There is a uniform affidavit [format] for everyone.”

Senior advocate Gopal Sankaranarayanan raised certain objections to the Union government’s statement. He pointed out that the Union said that Lone’s filing a petition under Article 32 petition “is pushing a separatist agenda”. 

A clearly miffed Sankaranarayanan said: “I have a very strong objection to the Government of India taking this stand. Are all of us who are pleading for the restoration of Article 370 pushing a separatist agenda?”

The CJI responded: “I think this is unfortunate. Nobody can say that because a petition under Article 32 is filed [it is pushing a separatist agenda]. 

Up to this point, nobody has said that filing a petition constitutes a separatist agenda. Access to our court for ventilating the grievances of citizens is within the framework of the Constitution. It is a constitutional right in itself.”

He continued: “Anyone who accesses justice under Article 32 cannot be turned out on the grounds that you are following this or that agenda. On merits, which way any individual petition goes is for the court to separate the grain from the chaff.”

The CJI clarified that the court has not heard about this from the government.

He added: “We will put a lid on this now. Otherwise, this will go on endlessly.”

He further pointed out that none of the leading counsels representing the Union have argued that the petitions must be dismissed because they are pushing a separatist agenda.

However, before Sibal could begin his submissions, the CJI asked him if Lone would file an affidavit soon. Sibal replied in the affirmative.

On the other end of the day, as the proceedings were coming to a close, Mehta brought up the issue of the affidavit again, saying he had not received copies of the affidavit.

He was handed a copy in the court and read a couple of lines from it, from where Sibal took over and read the rest of the affidavit.

Expressing his disappointment, Mehta said, “My Lords, this is not a rebuttal. This is adding insult to injury to the nation.”

The CJI put the ‘lid on the conversation’ by stopping him short and remarking, “We will analyse the contents of the affidavit.”

This is the affidavit Lone has filed:

The CJI ended the proceedings with a vote of thanks to the members of the Bar.

Brief background

A five-judge Constitution Bench is currently hearing a batch of petitions challenging the de-operationalisation of Article 370 and bifurcation and retrogression of statehood of  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 as explained by The Leaflet here.

Kapil Sibal’s rejoinder submissions

Sibal continued his arguments from yesterday on the number of merger agreements India signed with other Princely States.

Sibal took the court through the White Paper on Indian States (1950) where the list of merger agreements of States with India was given.

He told the court that all 552 States followed a similar pattern of integration except J&K.

Further, Sibal answered a query of the court yesterday on whether Article 370(3) is silent as to the consequences reflecting the relationship between J&K and India.

Today, he clarified that after the Constituent Assembly of J&K completed its task of framing the Constitution of J&K, the Constitution (Application to Jammu and Kashmir) Order, 1954 (Presidential Order C.O. 48) made an amendment and inserted proviso to Article 368(2) as applicable to J&K.

According to Sibal, the proviso ensured that Article 370 is not amended even through the exercise of constituent powers exercised in Article 368.

Moreover, he clarified that Article 368 does not apply to Article 370 which is clear from the fact that the latter begins with a non-obstante clause.

Sibal submitted that the only silence that is visible is the silence of the people of J&K who were not taken into consideration when C.O. 272 and Presidential Order (C.O. 273) declaration (C.O. 273) were issued.

He said: “Bilateralism is at the heart of the mechanism provided in Article 370 in terms of which laws of the Union of India are made applicable through the Constitution of India to J&K.”

It is this process which allows for a process of integration that is constitutionally enriched in Article 370,” he averred.

Comparing the process of bilateralism in Article 370 to that of Article 368, he pointed out that even under Article 368, the requirement of ratification by two-third states reflects the fact that there is no possibility of taking any unilateral decision.

Sibal referred to Article 368 here to point out that even in this provision, there is no scope of a unilateral action by the executive.

In terms of Chapter XXI (temporary, transitional and special provisions) of the Indian Constitution, Sibal pointed out that Article 368 has no application because all provisions begin with ‘notwithstanding’ which is a non-obstante clause.

He questioned: “Is this [having non-obstante clause in special provisions] not against basic structure? [Does the government now] want to set the entire chapter aside?”

Article 370’s interpretation

Sibal drew the Bench’s attention towards Article 370 which contains two colons and the rest are semicolons.

The two colons are present in Article 370(1)(d) and clause (3) which is succeeded by a proviso.

Article 370(1)(d) allows the President of India to extend the provisions of the Indian Constitution to J&K subject to certain exceptions and modifications.

The first proviso to this provision states that a consultation with the state government is required for matters relating to the Instrument of Accession.

The second proviso requires that a concurrence of the state government is required for matters not stated in the Instrument of Accession.

Whereas proviso to Article 370(3) requires that in order to partially or fully make Article 370 operative, the President must exercise his powers on the recommendation of the Constituent Assembly of J&K.

By making a reference to the use of colons on these two provisions, Sibal argued that the powers vested in them cannot be exercised independently. 

Calling Article 370 a process of integration, Sibal pointed out that the exercise of powers here is a process of integration.

He urged that the court must look at the validity of Presidential Orders C.O. 272 and C.O. 273 from the standpoint of Article 370(3) only.

Sibal pointed out that it is not the case that the President has exercised unilateral powers because whatever modus operandi was adopted, it was adopted through Article 370(3) only.

Further, he questioned the interpretation adopted by the respondents.

For the respondents, senior advocate Harish Salve had argued that the constitutional framers intentionally used three different words namely, consultation, concurrence or recommendation.

Salve said that since Article 370(3) merely uses the term “recommendation”, it means that once the Constituent Assembly ceases to exist, this condition is not necessary to fulfil.

Sibal pointed out that since Article 370(1) requires either concurrence or consultation, how can a constitutional court give an interpretation that the requirement of ‘recommendation’ Article 370 is not a necessary condition?

He said: “For individual articles, you have to either consult or concur. But for the whole abrogation, you do not have to concur? Even for [making a] law you have to concur.”

He indicated that such an interpretation is constitutionally absurd.

Pointing out the proviso to Article 370(3), Sibal said that an additional safeguard is added in the context of J&K: dehors the proviso, the complete merger of the state with India cannot be done.

On Article 356

Yesterday, Sibal had argued that Article 356 could not have been applied as a matter of law after the Constituent Assembly of J&K was dissolved by the governor in 2018.

Governor’s rule was imposed in the state on June 20, 2018 after the Bharatiya Janata Party pulled out of coalition government with the Peoples Democratic Party.

Sibal had earlier argued on Day 3 that the governor did not wait for any other political party to form a government and immediately imposed governor’s rule.

At the end of the governor’s rule, the President’s rule was imposed during the de-operationalisation of Article 370.

The President’s rule was extended for six months. 

Sibal continued from yesterday’s argument and submitted that the proclamation of Presidential rule in 2019 was “illegal” and “void”.

According to him, the governor could only recommend the President’s rule under the aid and advice of the council of ministers which he did not.

Sibal said: “You cannot interpret the actions, powers and responsibilities of the governor [in J&K] differently from other states in India.”

He argued that since the action of the President is bad in law, both C.O. 272 and C.O. 273 must go. 

Alternatively, even if the action is good in law, the President can only exercise the delegated powers to make laws. The President still does not have the power to change Article 3.

The C.O. 48 inserted a proviso in Article 3 (formation of new states and alteration of areas, boundaries or names of existing states) of the Indian Constitution.

According to the proviso, 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.

Sibal pointed out that Mehta had given several examples of Article 3 being suspended.

Sibal argued that no instances where Article 3 has been amended were put forth because that power cannot be exercised legally.

Sibal also referred to Article 357(2) of the Indian Constitution which says that any law made in the exercise of the legislative powers by the Parliament or President competent to make them during the proclamation under Article 356, shall cease to have effect on the expiration of a period of one year after the proclamation has ceased to operate.

Justice Khanna remarked that Sibal was contradicting himself because earlier he said that Article 3 cannot be amended.

Sibal clarified that any law by the President under Article 356 is temporary and no irreversible action can be taken.

He pointed out that S.R. Bommai versus Union of India (1994) clarifies this position.

Sibal concluded his arguments by saying: The whole motive was political. The process was political. But the ends are unconstitutional.”

Senior advocate Gopal Subramanium’s arguments

Senior advocate Gopal Subramanium began his arguments by stating that Article 370 may have begun as a temporary provision, but intrinsic evidence within the provision suggests that it was here to stay.

Subramanium argued that it was the Constituent Assembly of India that gave the ability to the people of J&K to determine their political future through the Constitution of J&K.

On an earlier day of the hearings, the Bench had asked if the Constitution of India recognised the Constitution of J&K.

Responding to that question, Subramanium today said: “The Constitution of India recognises the Constitution of J&K through the text of Article 370 itself.”

He pointed out that Article 370(2) of the Indian Constitution which includes the terms: “for the purpose of framing the Constitution of the state”.

Subramanium pointed out another piece of evidence which according to him shows that the Indian Constitution recognises the Constitution of J&K.

He said that the Constitution (Seventh Amendment) Act, 1956, which was for the reorganisation of states and Union territories, J&K was excluded.

Article 152 states that under Part VI of the Indian Constitution, unless the context otherwise states, the expression “State”  excludes the state of J&K.

Subramanium clarified that this has its origins in the seventh amendment to the India Constitution. 

Under Article 152 of the Indian Constitution, an amendment was made which stated: “For ‘means a State specified in Part A of the First Schedule’ substitute ‘does not include the State of Jammu and Kashmir’.”

Subramanium pointed out that in 1956, the draft Constitution of J&K was introduced for adoption. It stated that provisions for legislature, executive and judiciary will be established in terms of the Constitution itself.

Advocate Zafar Shah’s argument 

Advocate Zafar Shah briefly made his rejoinder arguments.

He summarised his arguments on what important considerations the court must look at while studying the unique existence of J&K.

Shah pointed out that the court must look at the fact of history that when India was being ‘unionised’, J&K was neither a part of India nor a part of British India.

J&K was an independent country with a maharaja that promulgated its own laws to regulate the State. For instance, the 1927 hereditary state subject law for the permanent residents of J&K.

In fact, the 1939 Constitution of J&K was promulgated by the maharaja.

From 1947 to 1950, there was no other document evidencing the relationship between India and J&K other than the Instrument of Accession.

He suggested that the court must look at the Constituent Assembly debates of J&K wherein all questions about why J&K should have a special status, and why it should have its own Constitution and a state flag have been answered.

Shah stated that J&K integrated with India in terms of Article 1 of the Indian Constitution and Section 3 of the Constitution of J&K. However, it retained the powers to regulate itself for matters not covered in the Instrument of Accession.

He added that this was the position accepted by India and J&K in 1950.

Shah said: “To put it differently, J&K had an ocean of constitutional autonomy available in 1950.”

Justice Khanna, however, remarked: “The fact of the matter remains that after the Constitutional document was drafted and applied, the people of India include the people of J&K. They are not separate from each other”.

Shah responded that after the signing of the Instrument of Accession, residual sovereignty was retained by the maharaja.

However, this residual sovereignty is not reflected in terms of Articles 1 and 370.

The residual sovereignty was transferred to the people of J&K, he stated. 

He added: “In the exercise of this residual sovereignty, the Constitution of J&K was made”.

Shah further said that the Preamble of the Constitution of J&K uses the terms ‘We the people of state of J&K” to reflect that the Constitution is independent.

He also pointed out that unlike the Constituent Assembly of India, elections took place to elect members of the Constituent Assembly of J&K. 

Shah informed the Bench that all the C.O.s promulgated post-1954 are amendments to C.O. 48 because the same was initiated by the Constituent Assembly of J&K.

He summarised his arguments by reminding the court that what constitutional autonomy J&K had as for August 5, 2019, was more than a skeleton.

It provided for permanent resident status, jobs reserved for permanent residents, nobody could acquire land, and Article 370 which was in the form of a cultural and linguistic identity of people of J&K.

Shah concluded by saying: “Why cannot the Union of India accept that there can be two Constitutions?”

They say they want integration of J&K with India, but integration cannot be forcible,” he averred.

For that, you will need to win the hearts of the people of Kashmir,” he asserted.

The people of J&K have hopes in this court. Restoring Article 370 will go in the direction of winning their hearts,” he concluded.

Submissions of senior advocate Rajeev Dhavan 

Senior advocate Rajeev Dhavan summarised his arguments. 

On the temporary nature of Article 370, he said that the provision had two conditions.

First, to reject the process of making the Constitution under Article 370(3) which the Constituent Assembly did not.

Second was the task of making its own Constitution which was achieved in 1957.

After the Constitution of J&K had been drafted, the two conditions were fulfilled and Article 370 ceased to be a temporary provision as per Dhavan.

Further, Article 370 became a special provision, putting it in the category of Article 371.

This was an example of cooperative federalism, he pointed out.

He explained cooperative federalism as: “When two powerful democratic forces meet and they decide the fate of a particular area of the Constitution. 

One powerful democratic force hailed from the people of J&K… The second, if democracy had to be preserved as a part of cooperative federalism, it had to be made to a balanced cooperative federalism by the words concurrence, consultation and recommendation.”

Submissions of senior advocate Dushyant Dave

Continuing from Dhavan’s argument on the temporariness of Article 370, Dave summarised that Article 370 is a permanent provision. 

The only impermanence associated with Article 370 is reflected in Article 370(3) wherein the prerogative was given to the Constituent Assembly of J&K to decide whether they wanted to remain with India or not, Dave asserted.

Once the Constituent Assembly of J&K ceased to exist, Article 370 became permanent, he stated. 

Dave concluded by stating that, “Article 370 was a lifetime promise.”

The Leaflet