Jammu & Kashmir Case | 2019 Presidential Order Indirectly Amends Article 370, Which Is Impermissible : Gopal Subramanium To Supreme Court [Day 4]

On the fourth 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 Gopal Subramanium argued that asymmetric federalism, autonomy, and consent were the three pillars of Article 370. He also stated that the exercise of power under Article 356 could not clothe the Government with legal authority under Article 370.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. Coexistence Of Constitutions of India & J&K Essence Of Their Relationship Senior Advocate Subramanium commenced his arguments by stating that there existed various methods of constitutional interpretation such as applying historical arguments, textual arguments, doctrinal arguments, structural arguments and so on. He emphasized that regardless of the approach taken, the outcome remained consistent– that the abrogation of Article 370 by the 2019 Presidential Orders was inconsistent with established law. In this context, he submitted four propositions–1. He 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. 2. Constituent Assembly was the primary assembly tasked with framing of the Constitution. He added that there existed not one but two Constituent Assemblies in this case- one of India and another of the J&K. 3. The impugned orders (CO 272 and CO 273), in sum and substance unilaterally removed the Constitution of J&K and the said action was impermissible and not authorised. 4. Finally, the expression "people" in the constitutional context have a legal and juridical existence.Asymmetric Federalism, Autonomy, Consent: Pillars of 370After introducing the issue in the court, Senior Advocate Subramanium delved into the foundational pillars of Article 370, shedding light on their significance in shaping the context, text, and structure of the article. He argued that these pillars – asymmetric federalism, autonomy, and consent – are integral to understanding the complex nature of Article 370 and its role in the relationship between India and Jammu and Kashmir.- Asymmetric FederalismThe concept of asymmetric federalism recognizes that the diversity and heterogeneity of a polity are reflected in the diversity of its federal arrangements. Subramanium asserted that the Indian Constitution recognises asymmetric federalism and takes note of special conditions and special needs of people. For this purpose, he cited a speech of Dr BR Ambedkar in which he introduced the Constitution. He said–"His (Dr Ambedkar's) introductory speech had two themes. He speaks about the Indian Constitution being federal. He also says that people who live in a state can be given special rights, privileges."He then outlined the circumstances that distinguished J&K from other states during its accession and provided the bench with two reasons for the same– first, J&K had its own constitution prior to accession and; second, the accession was qualified because people were still in the process of making up their mind. Highlighting that the Indian Constituent Assembly thought that it was appropriate and necessary to ascertain the will of people, he said– "They maintained the highest sense of democracy and respect. That is the reason why draft article 306A spoke about the Constituent Assembly of J&K taking a decision."Following this, Subramaniam took the bench through the debates of the Constituent Assembly J&K, referring to them as equally inspiring as the Indian Constituent Assembly debates. Drawing conclusions from these debates, he stated that the J&K Constituent Assembly took its decision in three steps– first, they left India in no manner of doubt that they have faith and respect for people of India and are acceding to India; second, they studied many constitutions across the globe and also the Indian Constitution and; third, they decided that they needed some special provisions for themselves in the Indian Constitution. Giving an example of such special provisions, the senior counsel said–"One of the first States in India which looked at land reforms was Kashmir. It was actually their throbbing concern at that time that we must give rights over land to our people and they must be permanent residents. They said that we will frame our constitution but we will request the Government of India that its constitution will have exceptions which we need for J&K brought into effect under Article 370."The request was accepted by the Government of India.Stating that the asymmetric federalism allowed the two constituent assemblies to speak to each other, he added–"The two Constitutions speak to each other. From which provision? Article 370. Art 370 was not a...

Jammu & Kashmir Case | 2019 Presidential Order Indirectly Amends Article 370, Which Is Impermissible : Gopal Subramanium To Supreme Court [Day 4]

Padmakshi Sharma

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