Article 370 | 'Integration' Not A Measure Of How Much Control Centre Has : Nitya Ramakrishnan To Supreme Court [Day 9]

On the ninth day of the Constitution Bench hearing in the pleas challenging dissolution of Jammu and Kashmir's special status under Article 370, the petitioner counsels concluded their arguments. The Supreme Court Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, witnessed arguments raised by Senior Advocate Gopal Sankaranarayanan, Senior Advocate Nitya Ramakrishnan, Senior Advocate Menaka Guruswamy, and Advocate Warisha Farasat along with intervenors. 

The arguments raised by Senior Advocate Gopal Sankaranarayanan can be found here. The important queries raised by the bench today can be found here. Other articles on today's proceedings can be found here and here.

Integration Not A Measure Of Centre's Control: Senior Advocate Nitya Ramakrishnan

Senior Advocate Nitya Ramakrishnan commenced her arguments by challenging the assumption that Article 370 was temporary and served as a means of 'greater integration'. She urged the court for reconsidering this conventional narrative and contended that the notion that Article 370 was established as a stepping stone to eventual integration was fundamentally flawed. Integration, she argued, was not merely a measure of Central control but rather a complex process that extended beyond administrative governance. 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 UTs are more integrated than people in a VI schedule area. That's not how our democracy works."

She elaborated that the level of integration should not be gauged by the degree of control exercised by the central government but rather by the shared sovereignty and democratic pact that the people of J&K entered into upon acceding to India. She drew the attention of the court to the historic and geopolitical context that shaped this shared sovereignty and emphasized that Article 370 reflected the essence of this partnership.

"We are not waiting for them to integrate anymore," Ramakrishnan asserted while describing Article 370 as the merging of democratic will of people of J&K with that of the rest of India.

Article 356 Only Permits Exercise Of Functions, Not Powers: Senior Advocate Nitya Ramakrishnan

Ramakrishnan then asserted that the mechanisms of checks and balances between the Central Government and the State Government of J&K, as envisioned in Article 370, should be upheld to maintain the democratic ethos of the region. Addressing recent developments in the region, Ramakrishnan criticised the imposition of Governor's rule and the subsequent dissolution of the state assembly. She questioned the legitimacy of such actions in light of the shared sovereignty and democratic principles enshrined in Article 370. She said–

"In 70 years, all of five Constitution Orders have been issued during President's Rule or Governor's Rule. One in 1986 and four extending the term of presidential proclamation in the year between '90-'96."

Ramakrishnan's next limb of arguments focused on the exercise of Article 356 by the Union and stated that the President could only exercise the functions of the State Government and not the powers. She added that Article 370 provided the State Government with powers, and not merely functions. In this context, she said–

"Function is a duty. Power is a discretion. It's a sui generis power given to a responsible state government. It cannot be taken over under Article 356 which is subservient to Article 370."

In her argument, Ramakrishnan emphasized that even a responsible state government's consent would not suffice for altering the terms of Article 370, and any such changes must originate directly from a Constituent Assembly. Speaking before the court, Ramakrishnan firmly argued, "A constituent assembly signifies an exclusive agency, exclusively devoted to the representation of Jammu and Kashmir. The recommendation for any alteration must come from an agency that is equal in mandate and stature. Today, after 1957, there exists no agency comparable to the Constituent Assembly of J&K. The will of the people of J&K is integral to the mode of governance specified in Article 370."

Swift Dissolution Of House By Governor Shows Mal Intent: Senior Advocate Nitya Ramakrishnan

She expressed concerns that any attempts to modify Article 370 without adhering to the proper constitutional processes could undermine the democratic principles enshrined in the article. She criticized the erosion of the democratic will of the people of J&K through processes she deemed to be motivated by "malintent."

Ramakrishnan also highlighted the circumstances surrounding the imposition of Governor's rule and the subsequent dissolution of the state assembly. She questioned the swift dissolution of the house within 30 minutes of political parties expressing their readiness to form a government. She presented evidence, including WhatsApp messages and public tweets, to emphasize that the governor's decision appeared hasty and possibly lacked a reasonable basis.

"The Governor's rule was imposed because one party had withdrawn, and no other political party was ready to form the government. This is why the rule was imposed, not because of any security issue or danger. Then what earthly reason had the governor to dissolve the house within 30 minutes of two political parties saying that they're ready to form the government?" Ramakrishnan queried.

Furthermore, she contended that the proclamation of President's rule and the subsequent assumption of power by the President over the state government's functions under Article 370(1) were not permissible under Article 356. She pointed out that Article 356 was designed to allow the President to take over the functions of a state government and not to undermine the possibility of a state legislature.

While concluding her submissions, she said :

"In October 2019, with a friend, I visited the valley...the one name that resonates with the valley is that of Mahatma Gandhi's. One man who lived and died for his work. Someway, that legacy must be kept in mind while deciding the case".

Indian Constitutional Interpretation Is Transformative & Expansive: Senior Advocate Menaka Guruswamy

Senior Advocate Menaka Guruswamy's arguments centered around the foundational intentions of the Constitution's drafters and their implications for the present case. She began with a reflection on a crucial question that was posed to Senior Advocate Dwivedi during the court proceedings: Can the statement of a drafter or a member of the constituent assembly be considered enforceable on the will of the people? She stated that this query posed a seminal constitutional question that could a Constitution be altered in ways opposed to the founders intention?

Recalling India's first Prime Minister's speech that highlighted the nation's tumultuous journey to independence, steeped in sacrifice and bloodshed, Guruswamy highlighted "founding" moments in the Constitutional journey. She stated that the court's approach to constitutional interpretation was transformative and expansive. She added that the same was commendable because of India's complex foundation. She argued that these jurisprudential moorings derived legitimacy from the drafters' constitutional intention.

She then turned her attention to specific provisions within the Jammu and Kashmir Constitution, particularly Sections 4 and 5, which she contended were evidence of the unique autonomy granted to the state. Guruswamy pointed out that the revocation of Article 370 and the subsequent reorganization act, which dissolved the state's bicameral legislative system, undermined this distinctive autonomy. Drawing focus to Sections 47 and 50 of the Jammu and Kashmir Constitution, she highlighted the emphasis on regional representation within the state's legislative assembly.

"The provision for this unique, regional body was exclusively made for Jammu and Kashmir. This decision was deliberate, intended to acknowledge the state's diversity and to harmonize the interests of its three regions: Jammu, Kashmir, and Ladakh," Guruswamy articulated.

Three Former CMs In Detention, Clear Malice In Law: Advocate Warisha Farasat

Advocate Warisha Farasat, representing intervenors in the case, passionately discussed the concept of unique federalism within the context of India's constitutional framework. Farasat's arguments focused on the challenges posed by the detention of former Chief Ministers and members of the legislative assembly in the wake of the abrogation of Article 370 in Jammu and Kashmir.

Farasat began by addressing the court, stating, "My lords, three former Chief Ministers were in detention, along with a significant portion of your legislative assembly. The exercise of the people's will through the assembly was hindered by these detentions, many of which were carried out under the Public Safety Act or under Sections 107 and 105 of the Code of Criminal Procedure. This situation is almost surreal. If we envision a scenario where the entire political landscape and all the politicians, who are actually representatives and supporters, are subjected to such constraints, it becomes evident that this is a clear case of malice in law."

Farasat highlighted the significant impact of the detention of political leaders and the restrictions placed on political activities in Jammu and Kashmir after the abrogation of Article 370. She argued that these actions have raised concerns about the functioning of democracy within the region and have caused skepticism about the democratic nature of the Indian state.

Another petitioner, who was an educator teaching Indian Polity to students in Jammu and Kashmir, expressed his deep concerns during the court proceedings. He emphasized the difficulty he faced when trying to teach the principles of the Indian Constitution and democracy to students in the region.

The petitioner shared, "It is a challenging situation for educators like me when we teach the principles of this beautiful constitution and the ideals of democracy to our students in Jammu and Kashmir. Students often pose a difficult question - are we still a democracy after the events of August 2019? Answering this question becomes extremely complex and challenging for me."

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

Article 370 Case | Upholding Centre's Actions Could Create A Precedent To Disintegrate Any State To Achieve Political Goals : Dushyant Dave [Day 6]

Article 370 Continued To Operate Even After J&K Constituent Assembly Dissolution, Says Supreme Court During Hearing [Day 7]

J&K Case | Degradation Of State Into Union Territory Impermissible Under Article 3: Senior Advocate CU Singh To Supreme Court[Day 8]

Can't Accept Argument That Article 370 Ceased To Exist Post J&K Constitution Enactment, Says Supreme Court During Hearing [Day 8]

Article 370 Case | "If They're Allowed To Do This, Heavens Know What Else They'll Do" : Gopal Sankaranarayanan Warns Against Potential Mischief [Day 9]