On Day 3 of the hearing in the constitutionality of the abrogation of Article 370, Senior Advocate Raju Ramachandran, for petitioners Shah Faesal and Shehla Rashid, took the five-judge bench through case-laws to emphasise a single constitutional principle- the power to enact a constitutional change (whether by application of India's other constitutional provisions with a "concurrence", or by modification or abrogation of Article 370 itself with a "recommendation") in its ultimate form resides with the state of J&K i.e. the people of the state of J&K.
Referring to the constitution bench authority in Damnoo, Mr. Ramachandran contended that the amendment in Article 370, made through the route of modifying Art. 367 (4) of the Constitution as applied to J&K, was approved because it merely mirrored an amendment made in the Constitution of the State of J&K. "In the present case, however, there is no such amendment made to the Constitution of J&K that is being mirrored in the Constitution of India as applied to J&K".
Further, in Damnoo, the change was only interpretive, as "head of state" was to be construed as Governor instead of Sadar-i-Riyasat. There was no change in the fundamental nature or character of the entity of the head of state. But in the case at hand, there is a clear change in the character of the entity when the "Constituent Assembly", having powers in the realm of constitutional amendment and abrogation, is sought to be substituted by the "Legislative Assembly", which has legislative powers of a house of the State Legislature conferred under and thus limited by the Constitution
Unlike in Damnoo, the modification of Article 367(4) to effect a substitution of "Constituent Assembly" with "Legislative Assembly" brings about an alteration in the framework and fundamental character of the Jammu and Kashmir Constitution, by vesting the constituent power of a Constituent Assembly in a single house of the State Legislature.
Further, Mr. Ramachandran submitted that all three power, being "recommendation", in so far as it is the prerequisite for Article 370's modification or abrogation, and "concurrence" insofar as it is a prerequisite for applying "other"constitutional provisions to J&K, and "consultation" are species of constituent power.
However, the "consultation" allowed to the Government of J&K on matters covered in the Instrument of Accession is a mere right, and not a power. This is because the Instrument of Accession is a treaty between two sovereign states (as the Indian Dominion and the Princely State of J&K then were) and thus the constituting document for the relationship between the two states. It is with the express purpose of preserving the Instrument as the constituting document, that no constituent power was left in the hands of the State of J&K that could override the Instrument of Accession. Evidence of this lies in Section 147 of the J&K Constitution which prohibits the Legislature of J&K from amending the provisions of the Constitution of India as applied to the State of J&K in Proviso (c).
Mr. Ramachandran relied on Chief Justice Ray's description in Indira Nehru Gandhi to indicate the nature of constituent power- "The constituent power is sui generis. It is different from legislative power. The position of unlimited law-making power is the criterion of legal sovereignty. The constituent power is sovereign because the Constitution flows from the constituent power"
Further, he argued that the constituent power itself is of two kinds - plenary constituent power and constituent amending power, as explained by a Nine Judge Bench in I.R. Coelho.
"...the power to amend cannot be equated with the power to frame the Constitution. This power has no limitations or constraints, it is primary power, a real plenary power. The (power to amend), however, is derived from the former. It has constraints of the document viz. Constitution which creates it", he quoted.
"370 confers both powers on the state of J & K - the plenary power to recommend the abrogation of 370 under Article 370(3), and a confined power to apply the provisions of the Indian Constitution to the state in a modified form under 370(1)(d)...Without the concurrence of the state government or the recommendation of the Constituent Assembly, that is, without the will of the people, nothing can be done under 370(3). The democratic power, of making the recommendation by the Constituent Assembly, is with the state, and the executive power, of the President issuing the notification, is with the Union..", he explained.
"Since it is the State of J&K that has constituent powers over its own constitutional framework as well as a role in determining the constitutional relationship of the State with the Union, it is the State of J&K which can democratically decide how its constituent powers can be exercised in accordance with its Constitution. Thus, it is only the State of J&K that can decide who will be a successor to the Constituent Assembly of the State, who may wield constituent powers in future. The President of India may not transfer constituent powers of the Constituent Assembly to any other body (such as the Legislative Assembly in this case). After all, only that authority which possesses a power may transfer it to another", he concluded.
Next, Senior Advocate Dinesh Dwivedi, appearing on behalf of journalist Prem Shankar Jha, sought the reference of the matter to a 7-judge bench in the light of contrasting opinion expressed by two co-equal benches of the Supreme Court in Prem Nath Kaul and Sampath Prakash.
"The Constituent Assembly debates show that the motive behind the manner in which 370 was drafted was to limit the power of the Union and to ensure that people of J&K have their say", he began, suggesting that while Prem Nath Kaul appreciated this, Sampath Prakash was oblivious to it.
Considering that it was Sampath Prakash where the judges were unimpressed by the submission that Article 370 was only a temporary provision, the bench on Thursday posed doubts regarding Mr. Dwivedi's contention.
The Senior Counsel suggested that as per Prem Nath Kaul, Article 370 was to hold the field only temporarily until the J&K Constitution was enacted, and that the relationship between the Union of India and the state could not be further altered after that, even under Article 370.
"You are saying that post 1957, 370 doesn't exist?", Justice S. K. Kaul asked.
"So there was no need for any Presidential notification?", questioned Justice N. V. Ramana.
"There is no power! The constituent assembly had to be there..if there is no constituent assembly, how would the power be exercised? Unless we read some other body like the Legislative Assembly into the Constituent Assembly which we can't do!...even if 370 was to be got rid of, amendment under 368 would be the option", replied Mr. Dwivedi.
"So the authority of the state of J&K and the lack of an ability to apply further provisions of the Union Constitution are set in stone as there is no Constituent Assembly?", the bench wanted to know.
Mr. Dwivedi was of the view that the needful could be done by the ordinary procedure of amendment under Article 368. However, he argued that the Constitution of J & K could not still have been abolished in the way the Union government did as Article 370 was only a temporary system in place until the state constitution came into force. The doing away with the constitution was tantamount to employing force on the people of the state, he said.
"Why was there even a separate Constitution for J & K if the special status and the autonomy of the state was to be made redundant under 370?", he asked.
Click here to download the Written submission by Senior Adv Raju Ramachandran
Click here to download the Written Submission by Senior Advocate Dinesh Dwivedi