Article 370 | 'Self Governance Better, No Constitutional Logic In Denying J&K Statehood': Petitioners Tell Supreme Court On Final Day

Yesterday marked the final day of arguments in the long-pending case challenging the Union Government's 2019 decision to repeal the special status of Jammu and Kashmir (J&K)under Article 370 of the Constitution, with the Supreme Court reserving its judgement in the matter. The day saw rejoinder arguments made by Senior Advocate Kapil Sibal, Senior Advocate Gopal Subramanium, Senior Advocate Zaffar Shah, Senior Advocate Rajeev Dhavan, and Senior Advocate Dushyant Dave. If You Give Such Power To Parliament, Anything Can Happen: Senior Advocate Kapil SibalIn his arguments, Senior Advocate Sibal took the bench through the White Paper on Indian States (1950) where the list of merger agreements of States with India was given and asserted that while all other 552 states followed a uniform pattern of integration, the same was not true of J&K. He stated that after the Constitution of J&K was framed, the Constitution (Application to Jammu and Kashmir) Order, 1954 (Presidential Order CO 48) through an amendment, inserted a proviso to Article 368(2) as applicable to J&K. The said proviso ensured that Article 370 was not amended even through the exercise of constituent powers exercised under Article 368. He added that another reason why Article 368 did not apply to Article 370 was that Article 370 begins with a non-obstante clause.Sibal reiterated from his earlier submissions that bilateralism was meant to be at the heart of the process of abrogation of Article 370 and such a unilateral act by the parliament could not be condoned. He then moved to the interpretation of Article 370 and stated that the Article only had two colons and the rest were all semi-colons. He said that the two colons resided in Article 370(1)(d) and clause (3). In this context, Sibal contended that, "you cannot exercise that power independently". Adding on to his arguments on the need of bilateralism, he stated that Article 370 was only a process of integration and thus–"If you have to uphold CO 272 and 273 you will have to uphold it on its own terms. When it comes to 370(1)(b), you have to consult or concur. If it comes to 370(1)(d), again consult and concur. When it comes to 370(3), you can abrogate without consultation or concurrence? How can that interpretation ever be accepted by a constitutional court. That's a constitutional absurdity- that for individual article you have to concur but for the whole abrogation you don't have to concur?" Sibal also stated that all articles under Chapter XXI of the Constitution, which provided with temporary, transitional, and special provisions start with a non-obstante clause and cannot be touched by Article 368. As far as J&K was concerned, there was an extra proviso added in terms of Article 370(3).Regarding the misuse of Article 356, the senior advocate stated that once the dissolution of the legislative assembly had taken place, Article 356 could not have been imposed. "If you give such power to parliament under 356, anything can happen. I'm digressing a bit but with respect to Maharashtra, I said that if Maharashtra is upheld, it will happen again and it happened in Maharashtra itself," he said. He underscored that Constitutional adjudication is not for a particular case but will have a precedent value for prosperity.To counter the submission made by the SG that the government had to modify Article 367 to amend Article 370 because it was impossible to amend Article 370 in any other way, Sibal stated that since there was no constitutional obligation to be performed in the case, the principle of impossibility could not be applied in this case. He said– "370 says "may" not "shall"[abrogate Article]. Where is the question of impossibility?"Finally, Sibal asserted that even if there had been a national security situation, the same should have been dealt with under the provisions of Article 352-259 and that resorting to Article 3 and converting the State to a Union Territory was impermissible. Supporting his arguments, he said–"Pulwama happened in February 2019 during the President's rule and then they held elections in May 2019. What is the justification of not constituting the state for 4.5 years? You say you're going to have municipal, local governance elections, tourism has increased. So what is the impediment then? What's the constitutional logic that you can use to deny people of J&K statehood?"Constitution Of India Recognises Constitution Of J&K: Senior Advocate Gopal SubramaniumSenior Advocate Gopal Subramanium, in his arguments stated that while Article 370 may have been a temporary provision initially, there was now adequate evidence to suggest that the Article was here to stay. He said that the Constitution of India had given the people of J&K the ability to determine their political future and that the Constitution of India does recognise the J&K Constitution. He also argued that the word 'recommendation' in Article 370(3) was chosen consciously because the Constituent Assembly of J&K was not...

Article 370 | 'Self Governance Better, No Constitutional Logic In Denying J&K Statehood': Petitioners Tell Supreme Court On Final Day

Padmakshi Sharma

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