Article 370 Case | Special Provisions Not Unique To Jammu & Kashmir, Several Other States Have : Senior Advocate Rajeev Dhavan [Day 6]

"Autonomy of states is fundamental to our constitution", asserted Senior Advocate Dr Rajeev Dhavan as he addressed the Supreme Court Constitution Bench comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, which had convened to hear the batch of petitions challenging the dilution of Article 370 of the Constitution of India.Marking the commencement of the sixth day of these hearings, Senior Advocate Dhavan navigated through various provisions of the Indian Constitution to highlight the diversity of the Indian Constitution and to underline that Jammu and Kashmir (J&K) was not the only state which was provided with autonomy, which as per him was "fundamental" part of the Constitution. He argued that the democratisation of power was necessary and that without the existence of– a) autonomy given to States and; b) special provisions and concessions given to people when needed, India would collapse. Autonomy Of States Fundamental To Constitution, Special Provisions Are Regular Features The quest for uniformity across the board which the two presidential orders (CO 272 and CO 273) sought to establish was not the heart of the Constitution. Instead, he submitted, that it was the autonomy within the federation and the special provisions made in relation to people, which made the Constitution what it was. "Take that away and we don't need such a big Constitution," he said while taking the bench through different provisions of the Constitution which gave autonomy to various State. He commenced this leg of his arguments with the proviso to Article 164, which specifically states that in the States of Bihar, Madhya Pradesh, and Orissa, there shall be a separate Minister in charge of tribal welfare who may also be in charge of the welfare of the Scheduled Castes and backward classes or any other work. He then took the bench through Articles 371 and 371A to 371J which provide for special provisions for different states. For context, Article 371 provides for provisions related Gujarat and Maharashtra, 371A for Nagaland, 371B for Assam, 371D for Andhra Pradesh and Telangana, 371E for Central University in Andhra Pradesh, 371F for Sikkim, 371G for Mizoram, 371H for Arunachal Pradesh, 371I for Goa, and 371J for Karnataka. Additionally, he also highlighted that Articles 239A and 239AA made special governance arrangements for the Union Territories of Pondicherry and Delhi respectively. Two areas he elaborated upon were provisions pertaining to the administration and control of Scheduled Areas and Scheduled Tribes (as under the Fifth Schedule) and provisions as to the administration of tribal areas in the States of Assam, Meghalaya, Tripura, and Mizoram (as under the Sixth Schedule). Along with these schedules, he also referred to Article 244A and Article 275. He argued that read together, these provisions contemplated “autonomous states” within India and gave special features of such areas having regard to diversity. He said–"Bodoland is mentioned in the Constitution. Nagaland has autonomous councils...These are safeguards for federal unity of India, as was 370. It is the part of the basic structure of federalism in our constitution. These are limits the constitution has in relation to federalism." Emphasising further, he said–"Our constitution doesn't shy away from creating autonomous states. Autonomy of states is fundamental to our constitution. Autonomy is not alien to our constitution. To say that special provisions can't be made in the Constitution is an anathema. These special provisions relate to certain classes. Special provisions are a regular features of our constitution. Without these, so much could not have been done for the SC/ST/OBCs."In this context, Dr Dhavan submitted that the Indian Constitution was one of the most diverse constitutions in the world. To this submission, Justice Kaul responded–"You're right, it's possibly more diverse than the whole of Europe combined."Further elaborating upon his submissions Dr Dhavan stated that India was not just an asymmetric federation but in fact was a multi symmetric federation. He said–"Europe, America, sub-saharan Africa, take parts of the south seas...I've called these asymmetrical provisions. These are in fact multi symmetrical provisions. This makes our constitution unlike any other in the world. Simple examples of asymmetry are Canada, you have French in one area and the English in other. Or Belgian, the three languages- those are asymmetrical. Indian constitution is multi symmetrical of which J&K is a part."Article 370 Could Only Be Amended Through Article 368Senior Advocate Dhavan argued that Article 370 applied fully from 1950 to 26th January 1957, with the J&K Constituent Assembly, having the option to amend Article 370. However, the assembly did not exercise the power to amend the article and dissolved in 1957. Post the dissolution of the assembly, Article 370(2) and (3) became otiose. Article 370(1) survived and...

Article 370 Case | Special Provisions Not Unique To Jammu & Kashmir, Several Other States Have : Senior Advocate Rajeev Dhavan [Day 6]

Padmakshi Sharma

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