The Supreme Court of India is hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution that bestowed limited autonomy to the erstwhile state of Jammu and Kashmir.
A five-judge constitution bench headed by Chief Justice DY Chandrachud is conducting day-to-day hearings from today. The five-judge bench had said the hearing will be held on a day-to-day basis except on Mondays and Fridays, which are days for hearing miscellaneous matters in the apex court.
After arguing for three days, senior advocate Gopal Subramanian commences his arguments on the fourth day. Here is a transcript from important exchanges in the Supreme Court.
12:33 PM: Constitutions of J-K and India speak with each other, argues Sr. Adv. Subramanium
Subramanium: My submission is that the Constitution of India was made applicable with exceptions and modifications as a part of the Constituent Assembly’s decision. It was not an imposition by the President at all.
Subramanium: All these are the exceptions and the modifications by the Constituent Assembly of the J&K to apply the Indian Constitution.
Subramanium: What they did was that the applied some parts, omitted some parts. They speak very feelingly of India- an India offering a hand of friendship. That is stacked all over the debates. Your lordships will find very praiseworthy remarks. This report is sent to the Government of India from the Constituent Assembly.
Subramanium: So you have one order under 370(3) which says that the only change we want in 370 is change from explanation to the Maharaja to Sadar-i-riyasat. The second is that they have asked for an application of the 1954 order, also stating that Art 1 and 370 will continue. The two articles speak to each other, the two constitutions speak to each other. That can only happen through Art 370…In their constitution they first recognized Indian constitution
Subramanium: They said they’re an integral part of India. They said that we have powers to legislate except where parliament of India has power to legislate and they created their legislature. Their statehood is defined by their constitution.
11:20 AM: Senior Advocate Gopal Subramanian commences his arguments today.
Subramanium: Our constitution recognises asymmetric federalism. The purpose of asymmetry is to take note of special conditions and special needs of people.
Dr. Ambedkar introduced the Constitution. His 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.
Subramanium: J-K was not like any other state at the time of accession. I’ll give you three reasons: J-K had its own constitution prior to accession; the accession was qualified because people were still in the process of making up their mind.
What the Indian Constituent Assembly did is that just as they felt that a decision can only be taken by the people, they thought that it was appropriate and necessary that the will of people is ascertained.
Subramanium: They maintained the highest sense of democracy and respect.
Subramanium: That is the reason why draft article 306A spoke about the Constituent Assembly of J&K taking a decision. The controversy is based on one misunderstanding – there is a unilateral exercise of power possible by the president under Art 370.
SC: Is it your case that the parliament could have done it?
Sibal: No! Not at all. That also I’ll answer. Ultimately, this was a political decision taken in the context of the situation prevailing. Right? And the complete abrogation must also be a political decision. Your lordships must remember Brexit. What happened? There was no constitutional provision seeking a referendum. But when you want to sever a relationship, you must seek the opinion of the people. Because people are central to the decision.
CJI: In a constitutional democracy, seeking the opinion of people has to be through established institutions. So long as democracy exists, any recourse of will of people has to be expressed by established constitution. So you cannot envisage a Brexit type referendum. That’s a political decision which was taken by the then government. But within a constitution like ours, there is no question of a referendum.
Sibal: This is a political decision. Not a constitutional decision.
CJI: But then the question is whether the constitution does or does not entrust that authority.
Sibal: That’s all I’m asking. Can the Union of India in this manner terminate a relationship recognised in Constitution of India? It is a political act. Whether it’s a permanent or temporary feature is not an issue. Because maybe there is a constitutional way of doing this. I’m not addressing that, nor are they resorting to that.
CJI: On the proviso to clause (3) of 370. Is there something that happened ultimately in the Constituent Assembly which sheds light on which way the Constituent Assembly was inclined to go?
Sibal: Between 1951-57 they could have determined or terminated the essence of Art 370 and said that we don’t need this and we want to be a part of India like other states.
11:16 PM: CJI Chandrachud on quotes Sheikh Abdullah’s words on Pakistan from a speech in Nov, 1951
CJI: It’s very interesting what Sheikh Abdullah says. He says “The most powerful argument which can be advanced in her favour is that Pakistan is a Muslim State…”
CJI: He (Sheikh Abdullah) then says “…and a big majority of our people being Muslim the State must accede to Pakistan. This claim of being a Muslim state is of course only a camouflage.”
CJI (reading from Sheikh Abdullah’s speech): “It is a screen to dupe the common man, so that he may not see clearly that Pakistan is a feudal State in which a clique is trying by these methods to maintain itself in power.”
11:05 AM: Arguments on Sheikh Abdullah’s historic speech and his vision for J-K
Kapil Sibal refers to Sheikh Abdullah’s speech outlining the purpose of the Constituent Assembly of J&K. The speech was made on November 5, 1951.
Sibal: (Reading from Abdullah’s speech) “When the raiders were fast approaching Srinagar, we could think of only one way to save the state from total annihilation-by asking for help from a friendly neighbour.”
Sibal: “While accepting that accession, the GOI said that she wished that as soon as law and order have been restored in the Kashmir and her soil cleared of the Invader, the question of the states accession should be settled by reference of the people.” This is how the question of plebiscite came. He then points out how the provision is temporary.
CJI: He specifically speaks about the importance of the affiliation with India and accession with India. First he speaks about Indian Constitution. Then he refers to land reforms which took place.
CJI: He says that Pakistan is a feudal state and our interest would not be protected in a feudal Pakistan as compared to an India where land reforms were taking place.
Sibal: The people of J&K gave themselves their Constitution just as people of India gave themselves Indian Constitution. Central to all this is the will of the people.
4 PM – The bench rises for the day. Hearing to continue on Tuesday morning.
3:55 PM – ‘Breakdown of the constitutional structure,’ Sibal says on the conversion of J-K into Union Territory.
CJI DY Chandrachud: So far J&K consent is needed and for other states only views are needed to introduce the bill.
Justice Surya Kant: What was the procedure followed in passing the Constitution orders?
Sibal: It was through a presidential notification- after taking the consent- concurrence or consultation. That’s how it’s made applicable. The views of the people were to be taken.
When all states were getting integrated in the Union, they didn’t need consent. But since J&K was not integrated. So you lose the link between the centre and the state altogether. You absorb the powers of the state with yourself as the executive, as well as the parliament and the legislature. And you decide without reference to any other institution.
Sibal: So you give yourself consent. The people who gave themselves this constitution are left out of the process. This is essentially a break down of the constitutional structure.
3:00 PM – Was Article 370 put in a straightjacket, immune to any amendments, the bench asks
Justice Khanna: If the objective was not to put Article 370 in a straitjacket, which is obviously clear; it’s a flexible article…
Sibal: That has nothing to do with 370(3). There’s no flexibility there.
Justice Khanna: The proviso puts a pre-condition.
Sibal: It’s a flexibility at the instance of the Constituent Assembly, not at the instance of Parliament. They contemplated it. Why else would they add the word “constituent assembly”?
Justice Khanna: Because at that time we didn’t have any legislative assembly for the State of J&K
Sibal: It’s not flexibility at the hand of parliament. Because 147 says there is no flexibility at all.
Justice Khanna: When they made it, there was no legislative assembly. That’s a fact. So when we interpret the term here can we interpret it to include legislative assembly?
Sibal: How can you interpret a term in the constitution which says ‘constituent assembly’ as a legislative assembly. I don’t understand. Under what interpretation can we do that? There’s no implied or express power. That way we can change any definition.
CJI: Before elections were held, by adult suffrage they composed the constituent assembly. Your argument is that what is to be done by constituent assembly cannot be done by legislative assembly. What happens when there’s no constituent assembly? Do you create a fresh one?
CJI DY Chandrachud: How would that happen post 1957 India?
Sibal: When the constitution was framed, there was a dialogue between the Maharaja and constitution makers. Both decided to put it in. You must understand the historic context. It didn’t happen in isolation.
Sibal: Parliament included a provision for J&K. It’s not an isolated act. It happened in consultation with the Maharaja.
CJI DY Chandrachud: How would you then put into place the constitutional machinery? It cannot be that because there is no constituent assembly, you cannot at all deliberate upon a proposal for abrogation or modification of Art 370.
CJI DY Chandrachud: We see what process they followed. What according to you would be the right process to do it?
Sibal: No process! Because the Constitution of J&K says that no such bill can be introduced in the legislature.
CJI: By them!
Sibal: No process can be followed to abrogate it. At that time it was temporary because there was nothing in place.
Justice Kaul: What you’re saying that while other provisions of the Constitution may be capable of amendment through a process, other than ones against basic structure, this is one provision which can never be amended.
Sibal: Let’s put it this way- under which power will they do it?
Justice Kaul: Constitution is also a live document. It’s not static. Can you say that there is no mechanism to change it even when everyone wants to change it? Then you’re saying that this can’t be changed even if all of Kashmir wants it.
CJI DY Chandrachud: Can parliament not have amended the constitution exercising the 368 power to abrogate 370? You’re saying that there is a provision of the constitution which lies even beyond the amending powers of the constitution.
CJI DY Chandrachud: So we’re creating a new category apart from basic structure. And 370 belongs to that?
Sibal: It’s not a new category. It’s a category that exists.
12:35 – ‘Tomorrow parliament says that we’re constituent assembly. They can do away with basic structure,’ argues Sibal
Kapil Sibal: There is a clear distinction between the exercise of constituent power and the exercise of legislative power. Parliament while enacting a law, functions within the contours of the Constitution. Constituent Assembly has no Constitution in place.
Sibal: A constituent assembly can do what it likes till such time a Constitution is made. At no point in time in law, can a legislative assembly be converted into a constituent assembly- as a matter of law.
CJI DY Chandrachud: Even when parliament amends a constitution, it’s not exercising powers of a constituent assembly. It may be exercising a constituent power- the power to amend. But the power is restricted and you’re subservient to the constitution.
Sibal: See the danger of this argument. Tomorrow the parliament says that we’re the constituent assembly. They can do away with basic structure.
Justice Gavai: Dr Ambedkar, while presenting the final draft, also touched on this point.
Sibal: The point I’m making is a fundamental point which affects the future of our country. If you in principle say, that a parliament can convert itself in a constituent assembly, then where do we go? Forget about this case. I’m far more worried about our future.
Constituent Assembly is a political process. It’s a political process in the context of aspirations of all those participating in the constituent assembly. How do you meet the aspirations of diff segments, what provisions should be put in place.
12:15 PM – Sibal puts light on the interplay of the Indian constitution and the now-abrogated J-K constitution
CJI DY Chandrachud: What happens when the Maharaja is replaced by an elected government in J&K?
Sibal: Then the elected govt on aid and advice of council of ministers.
CJI DY Chandrachud: Where does it say that?
Sibal: I’ll show that. It’s a part of the Constitution of J&K.
Sibal: There is a Government Order of 1965 which says that the Sadar-i-riyasat will be in the government.
Justice Khanna: So till 1965 the Maharaja continued?
Sibal refers to the J&K Constitution.
Sibal: “The governor may from time to time…dissolve the assembly…this he can only do on the aid and advice of council of ministers”- it’s not an exception.
Sibal: This is important because there was no council of ministers when he did this, which is on Nov 21, 2018.
Sibal: The importance of this is that he can only dissolve the legislative assembly on the aid and advice of council of ministers. The only exceptions that the governor has are 36, 38, and 92. But under 53, he can’t do it. Which is what he did.
Sibal: Any such proclamation ceases to operate in six months. The proclamation was issued on 20th June. It was to expire in six months on 19th Dec. And on November 21, he dissolved the assembly, without reference to council of ministers.
Sibal (reading amendment): You cannot amend 370 as it is made applicable. No legislature can even move it…this is what makes it permanent. This is exactly why it is permanent. It had to be temporary because at that time there was no Constituent Assembly.
My basic argument and question is that which powers allowed the parliament to convert a legislative body into consituent assembly?
The bench rises for Day 1.
: Legislative body cannot go beyond constitution: Sibal
Sibal: The concept of a constituent assembly is a political exercise. That political authority, that political body can decide on the future of the state.
Sibal: That’s a political decision. You want to abrogate 370, abrogate it. You want to integrate in India completely, say it. But that’s a political act. That political act cannot be exercised by parliament, a legislative body.
Sibal: Because that legislative body is controlled by the Constitution. It can’t go beyond that.
CJI DY Chandrachud: We can conclude this tomorrow.
Sibal: Deeply obliged.
: Govt took upon themselves to exercise will of people of J-K, says Sibal
Sibal: The parliament exercised the will of the people of J&K when they abrogated the Article. They took upon themselves the constitutional responsibility of saying that we’re now the legislature, we’re the constituent assembly, and we’ll exercise the will of people of J&K.
Sibal: Is that possible constitutionally? Is that envisaged in 370? Is it not an exercise of political power? Can such a power be exercised in the manner in which it was exercised? That’s a matter of procedure. Article 3 says they can change the boundaries- they didn’t change boundaries in this case but they changed it to Union Territory.
Sibal: You can change the boundary of a state, you can bifurcate boundaries of a large state to make smaller states. But never in the history of this country has a state been converted into a Union Territory.
Justice Kant: You can carve out a Union Territory out of a state.
Sibal: You can carve out but you can’t have all of Madhya Pradesh become a Union Territory one fine day. That is unthinkable! Under J&K there was a special provision for this.
Sibal: So you move away from representative democracy, convert it into a Union Territory under your direct rule, and 5 years have passed! Everyday we hear there will soon be elections. There has to be a constitutional basis for doing this.
: Sibal cites the Constituent Assembly debates on the veracity of Article 370 being a temporary provision
Sibal: “It is one of our commitments to the people and government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly…” This is a commitment made!
What can be clearer than this? The last clause refers to what may happen later on, which is why it is temporary.
“The recommendation of the Constituent Assembly will be a condition precedent”- that explains the whole article. There can be nothing clearer. We, in hindsight, in 2023 can’t interpret a provision except on its terms.
We’re hear to interpret the constitution. We’re not here to legitimise a process which is inconsistent with the express terms of the Constitution.
Sibal: This explains several things- i) why it was a temporary provision; ii) Constituent Assembly had not been constituted then. It was envisaged in our constitution that it will be constituted and the ultimate authority of abrogating 370 would be with the Constituent Assembly.
Sibal: And a precondition of that would be a recommendation of the Constituent Assembly for the president to pass an order. Absent that, it cannot be done. That was the understanding of the makers of Constitution.
Sibal: It was not a temporary provision in the sense that ultimately 370 had to be abrogated. That’s not the meaning.
The government of the day was staring at the provisions of Article 370. According to me, through a political act, and not a constitutional procedure declared that 370 is gone.
Such a political act cannot be determined by the parliament of India. It’s not in the remit of the parliament to take a political decision to abrogate 370. Nobody can deny that people of J&K are an integral part of India. But there is a special relationship – there is a unique relationship drafted in 370 itself. You can’t jettison that except by following a process ordained by law.
: What it means for Article 370 to be a temporary provision?
CJI DY Chandrachud: All these provisions are in Part XXI. Part XXI has three expressions- temporary, transitional, and special. Temporary are those which are intended to be in existence for limited time without a point of terminus.
CJI DY Chandrachud: Transitional means something which necessarily has a terminus. Third is special. Say 371- special provision for Maharashtra & Gujarat, then for Nagaland, Assam, Mizoram etc
Then we continue to 372 which says “shall continue until altered by competent legislature.” Like the penal code.
So Part XXI basically covers special, temporary, and transitional provisions. It doesn’t use “transitional” in any headnote or marginal note. But “temporary” and “special” are used in marginal notes. 370 specifically says temporary.
So can we then say that power under clause (3) goes once Constituent Assembly comes to an end? Convert this to a permanent provision even though it was not intended to be? Why did the constitution put it in Part XXI?
Kapil Sibal: Because it’s separate. It relates to a particular state where two sovereigns have come together and made a compact which is incorporated…
Sibal: You can’t incorporate concepts outside of 370 and integrate them into 370 and say this is how we will read 370. 370 is not temporary.
Sibal: It is temporary till such time as the Constituent Assembly desires this way or that way. When the constitution came to force, there was nothing such as a constituent assembly. How did the constitution add this here?
Sibal: Because there was an understanding. Otherwise why would you bring the term “constituent assembly” under 370? Suppose the constituent assembly decided not to be with India. Then what?
CJI DY Chandrachud: There are two types of temporary provisions in Part XXI. One type is Art 369. 369 says parliament has power to make laws for a period of 5 years…so temporary with reference to time. 370 is temporary in a sense that it is temporary till abrogated.
Sibal: It was called a temporary provision because that had to be decided by the constituent assembly. And then you interpret the terms to find out how that power is to be exercised. Because it’s unlike any other State. The residuary power was already with the State.
The bench rises for lunch.
: Could the parliament have abrogated Article 370 without the consent of the constituent assembly?
Kapil Sibal: The article starts by saying “notwithstanding anything in constitution” and 370(3) starts with “notwithstanding anything in the provision”.
Justice Surya Kant: So sub-article 3 according to you have become non existent. Then how does the very temporary nature of 370 survive?
Sibal: It was temporary because Constituent Assembly was not framed at that time.
Justice Kant: So if Article 370(3) goes then that means that Article 370 can never be abrogated.
Sibal: Yes! That’s the whole point. That’s our case.
Sibal: That is why I said that formation of constituent assembly is a political exercise. Look at making of nation states in europe- large empires like Austria and Hungaria. The break up of the empire led to the formation of the nation state. In India the process was opposite.
Sibal: There was disparity and there was 562 princely states and there were states with british crown and all had to be amalgamated. J&K was an exception. You cannot jettison the people of J&K and decide.
Sibal: Then what is the difference between this and the act of crown or annexation of junagadh or hyderabad? If you have agreed to a process which two sovereign authorities have accepted then you must follow it or else it is the use of paramount power.
Justice Kaul: So if an elected assembly wants to abrogate article 370 then also it is not possible?
Sibal: Not possible!
CJI Chandrachud: But that is only on the basis that 370 becomes permanent after CA ceases to exist. If the hypothesis is not accepted then only way is to assert that a pre independence agreement has to be enforced. Can parliament of the state have limited powers in the state?
Sibal: 356 itself is a temporary provision. What’s the purpose of 356- to restore democracy. Is the intention behind 356 to decimate democracy?
Justice Khanna: Let’s leave 356 aside for now…All other matters which are not included in clause 1 can be now be legislated upon by concurrence of government of State.