Article 370 Case | J&K Retained Autonomy, It Signed IoA To 'Shake Hands' With India, Not To Embrace It Fully : Zaffar Shah To Supreme Court [Day 5]

On the fifth day of the Indian Supreme Court's hearing in the batch of petitions challenging the dilution of Article 370 of the Constitution of India, Senior Advocate Zaffar Shah, appearing for the J&K High Court Bar Association argued that the State of Jammu and Kashmir (J&K) had retained some constitutional autonomy as it had signed an Instrument of Accession (IoA) and not a merger agreement. The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant was hearing the matter.J&K Retained Constitutional Autonomy As It Didn't Sign A Merger AgreementSenior Advocate Shah commenced his arguments by underlining the autonomous nature of the erstwhile state of J&K. He did so by taking the bench through the history of J&K's accession with India and the subsequent formation of the Constitution of J&K. He first highlighted that the Maharaja of J&K did not handover his entire sovereignty to the Dominion of India and instead kept with himself certain powers, including the power to make laws except those relating to foreign affairs, communication, and defence. As per Shah, this residual power of the Maharaja came to be subsumed by the Article 370, which envisioned that it would be entirely for the people of J&K to integrate with India. He argued that J&K had not signed a merger agreement with the Dominion of India like the other states, instead, it had signed the IoA to "shake hands" with India but not "embrace it" entirely.Shah then elaborated upon Article 370 and stated that since J&K had already "donated" some of its powers to India in the IoA, namely the power of defence, communication, foreign affairs, the State wanted there to be no more donation. Therefore, Article 370 was framed in a manner where its consultation or concurrence was necessary to make laws. He asserted that there were limitations provided in Article 370 itself with regard to the power of the Indian parliament to make laws for J&K. One of these limitations was that if a law was to be made on a subject provided under List I or List III, which was not a subject covered by the IoA, the concurrence with the State Government was required. This, according to Shah meant concurrence of the people of the state via the council of ministers. He reiterated that this "special treatment" was given to J&K because there was no merger agreement it had signed. Therefore, the autonomy granted to J&K had to be maintained.He argued that there existed a limitation on parliament to make laws in J&K because despite having acceded with India, the mechanism for J&K was different as it had subsumed the residuary authority that Maharaja had. He added–"We believe that we have constitutional autonomy under the Constitution of India itself. That was taken away. We're contending that you cannot take away the autonomy of the State. This autonomy comes from IoA and Article 370." President 'Deoperationalised' Article 370 To Take J&K's Constitutional AutonomyDescribing Article 370 as an Article which could have been a “substitute for a merger agreement if complete integration (of J&K with India) had to take place”, Shah elaborated further upon the constitutional autonomy of the State as embedded in Article 370. Shah highlighted that Article 370(1)(i) used the term “consultation” and Article 370(1)(ii) as well as 370(1)(d) used the term "concurrence". He underlined that "concurrence" meant that both parties had to agree. He added that under Article 370, it could not be conceived that the Parliament extends Indian laws to be applicable to J&K when there is no corresponding constitutional Entry for the same which would support the extension of the law to the State.In this backdrop, taking the bench through CO 272, he argued that the presidential order stated that "the article ceases to be operative". Thus, this was not a mere amendment but the President was provided with the power to deoperationalise the article. Describing the government's action as gradually "chipping the power of the State legislature" he stated that while in 1950, the State legislature had the total power of making laws except three subjects, subsequent to Article 370, they had to concur with the Union and request them to apply laws. The discussion then shifted to the issue of assumed permanence of Article 370. In this context, Justice Kaul said–"Saying that 370 is permanent is really difficult. Suppose the state itself says that we want all laws to apply, then where does 370 goes? Then we really come back to the process. Was this process permissible of not?"Shah argued that the question was whether on 5th August 2019 the Article had become permanent because the machinery was not available to remove it. He added–"If you want to completely integrate, we have to get rid of IoA, 370, and execute a merger agreement. We go back to the roots."Justice Kaul responded–"These were historical developments that too place. The effectiveness of 370 ...

Article 370 Case | J&K Retained Autonomy, It Signed IoA To 'Shake Hands' With India, Not To Embrace It Fully : Zaffar Shah To Supreme Court [Day 5]

Padmakshi Sharma

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