[Article 370]Day-3] Senior Adv. Dinesh Dwivedi Seeks Reference To Seven Judge Bench [Read WS]

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.He referred to constitution bench decision in Prem Nath Kaul to reflect the original understanding of the framers of the Indian Constitution on the way in which Article 370 ought to have been worked – by having the people of J&K ratify every application of the Indian Constitution to the State of J&K, through the J&K Constituent Assembly under Article 370(2) of the Constitution of India.Another five-judge bench ruling in Puranlal Lakhanpal II was cited– which holds that even wide "modifications" of the Constitution of India under Article 370(1)(d) could be applied to J&K, because the State of J&K has concurred with such a constitutional change through an elected GovernmentIn the context of the contention that Article 370 had ceased to operate on the coming into force of the Constitution of Jammu and Kashmir, yet another 5 judge bench of the top court had made it clear in Sampath Kumar that the Constituent Assembly of the State did not desire that Article 370 cease to be operative.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 ConstitutionUnlike 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...

[Article 370]Day-3] Senior Adv. Dinesh Dwivedi Seeks Reference To Seven Judge Bench [Read WS]

Mehal Jain

Tags