Article 370 Case : Summary Of Petitioners' Arguments Before Supreme Court

After an exhaustive span of nine days dedicated to hearings, the petitioners have drawn the curtains on their arguments in the batch of pleas challenging the dissolution of Jammu and Kashmir's special status under Article 370. The Constitution bench of the Supreme Court, led by Chief Justice of India DY Chandrachud and composed of Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, presided over these hearings. This article is a comprehensive and concise encapsulation of all the arguments raised by the petitioners. It seeks to serve as a means to navigate through all the arguments raised by the petitioners in the matter so far.ON HISTORY AND CONTOURS OF ARTICLE 370J&K Retained Constitutional Autonomy As It Didn't Sign A Merger AgreementThe petitioner counsels all stressed upon the unique nature of J&K's relationship with India which got embodied in the Indian constitutional setup. In this context, the petitioners provided the bench with a history of J&K's accession with India and the subsequent formation of the Constitution of J&K. While stating that the concept of sovereignty had two components–internal and external sovereignty, it was highlighted that the Maharaja of J&K did not give up the internal sovereignty to the Dominion of India while acceding as he never signed a merger agreement with India. Thus, while the power to make laws relating to foreign affairs, communication, and defence lied with the Union as per the Instrument of Accession (IoA), the internal sovereignty of J&K which provided it with powers to legislate on all other matters remained with the Maharaja. It was asserted that this residual power of the Maharaja came to be subsumed by the Article 370, which gave J&K a special status and helped the state retain its constitutional autonomy.Constitutions of India And J&K Intertwined, Article 370 A Bridge Senior Advocate Gopal Subramanium, in his arguments asserted that the two frameworks of the Constitution of India and the Constitution of J&K were not isolated entities but rather intertwined in a complementary manner. Their coexistence, he emphasized, formed the very essence of the dynamic relationship between India and J&K. In this context, it was added that there existed not one but two Constituent Assemblies- one of India and another of the J&K. Article 370, as per the senior counsel, acted as a "bridge" between the state of J&K and India and removing it would mean removing that passage. Article 370 Was No Longer A 'Temporary' ProvisionThe argument that Article 370 had assumed permanence and was no longer a 'temporary' provision post the dissolution of the J&K Constituent Assembly in 1957 was raised by various counsels throughout the proceedings. It was argued by Senior Advocate Sibal that Article 370 was called a 'temporary' provision only because when the Constitution of India came into force, the Constituent Assembly of J&K did not exist. He argued that the Constitution makers foresaw the formation of the Constituent Assembly of J&K, and it was understood that this Assembly would have the authority to determine the future course of Article 370. Once the Constituent Assembly came into being, created the Constitution for the State, and then ceased to exist after its tenure from 1951 to 1957 without recommending the removal of Article 370, the Article became a permanent feature of the Constitution. It was also argued that the Constituent Assembly had already made its mind and decided not to abrogate Article 370. In a similar vein, Senior Advocate Dushyant Dave asserted that the purpose of Article 370(3) (which provided for means to abrogate Article 370) was limited and it only existed so that the Constituent Assembly of J&K could decide whether Article 370 was to remain operative or not. Thus, once the Constituent Assembly had dissolved, Article 370(3) ceased to exist, making Article 370 a permanent feature of the Indian Constitution. Permanent Residents Must Be ProtectedSenior Advocate Zaffar Shah stated that the history of the region solidified the idea of protecting individuals who lived in the State of J&K as permanent residents. Tracing the roots of this protection, Shah asserted that the same was granted to the permanent residents in terms of a notification of 1927. He said that at that time the King of the region would bring people from other regions of the country such as Punjab and permanent residents of J&K were left without any jobs. Owing to the agitation caused by this, a notification was passed in 1927 which restricted appointment to permanent residents. He argued that this was essential to keep the region intact. Article 370 Ceased To Operate Once J&K Constitution Was Enacted: DwivediInterestingly, Senior Advocate Rakesh Dwivedi took a different route while interpreting Article 370 and stated that Article 370 ceased to operate entirely once the Constitution of J&K was enacted in 1957. Accordingly, all the powers conferred under Article 370 (to abrogate it) ...

Article 370 Case : Summary Of Petitioners' Arguments Before Supreme Court

Padmakshi Sharma

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