08-Dec-2023  Srinagar booked.net


370 Hearing, Day 16: Five Advocates Present Rejoinder Arguments On ‘Constitutional Absurdity’



Srinagar/New Delhi: On the 16th day of article 370 hearing; five senior advocates including Kapil Sibal, Gopal Subramanium, Zaffar Shah, Rajeev Dhavan and Dushyant Dave presented their rejoinder arguments countering opinions made by the Counsel, representing government and supporting abrogation with Sibal countering that Jammu and Kashmir's merger with the Union of India was distinct and termed the abrogation as a constitutional absurdity by invoking certain judgements.

While Subramanium stressed that the word 'recommendation' was chosen consciously because the Constituent Assembly of J&K was not constituted by the GOI, but under the proclamation of the autocratic ruler, Maharaja, Zaffar Shah gave a historical perspective on Jammu and Kashmir's accession to India, and asserted that the residual sovereignty was transferred to the people.

Adv Dhavan focused on the temporality of Article 370, arguing that it ceased to be temporary after the Constituent Assembly's task was fulfilled in 1956 and called 370 a compromise.

Adv Dave said nothing has changed in Kashmir even after 2019 as people and soldiers continue to die with millions of troops deployed and called tourism boom prerogative to the beauty of Kashmir as the most beautiful place in the world.

Here is the detailed hearing:

Sibal provides the bench with a list of princely states that signed a merger agreement with Union.

Sibal: All through merger agreements, no exception except Jammu and Kashmir. That was not conceived in terms of 370 itself.

Sibal: This was incorporated in these terms in the Constitution which was not done for anyone else. This shows that merger was never contemplated except in terms of 370. All the others became through proclamation part of the states and then became part of B states.

Sibal: J&K was not. It was the only state excluded from Part B states.

CJI: Equally the proclamation executed by Yuvraj says that the entire relationship between J&K and Union would be governed by Constitution of India and all previous understandings are superseded.

Sibal: See what the language is. "Constitution of India to be shortly adapted shall be insofar as applicable to state of J&K govern..."

Sibal: All other states followed a uniform pattern of integration, other than Jammu and Kashmir.

Sibal: Bilateralism is at the heart of the process...There can't be a unilateral act by the parliament. There is no silence in the constitution.

Sibal: Article 370 has two colons, the rest are all semi-colons. The two colons reside in (d) and (3).

Sibal: So you cannot exercise that power independent. 370 is only a process of integration. We're dealing with a process adopted by government of India consistent with this process of integration. There is no unilateral declaration.

Sibal: Assuming there is a silence, how will you read it under CO 272 and 273? Because they deal with 370(3) as it stands. You will still have to say if they're consistent with the unilateral notification to be issued by President which isn't there.

Sibal: If you have to uphold (CO) 272 and 273 you will have to uphold it on its own terms.

Sibal: 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.

Sibal: 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: If you look at Article 371- it starts with "Notwithstanding anything in the Constitution"...368 would not apply to any provision of the Constitution in this chapter (Chapter XXI). Is that not against basic structure?

Sibal: Every provision other than one which relates to Andhra Pradesh starts with "Notwithstanding anything in constitution".

Sibal: As far as J&K was concerned, they had an added proviso. That constitutionally means that the complete merger we're talking about de hors the proviso could not be done.

Sibal: Once the dissolution took place, 356 could not be imposed. Any act of dissolution has to take place after the aid and advice of council of ministers.

Sibal: 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.

Sibal: Now coming to impossiblity- an argument not raised in counter affidavits...If there is a constitutional obligation to be performed and it has to be performed, then the principle of impossibility comes is...where is the obligation for 370?

Sibal: 370 says "may" not "shall". Where is the question of impossibility?

Sibal: How can they make a state into a UT? Under what provison of law? Under what power? There may be a national security situation. But that national security situation can be dealt with under 352. 352-359 deals with that. So how can you use Article 3?

Sibal: Then it is also not their case that they did it for national security. Pulwama happened in Feb 2019 during president's rule. And then they held elections in May 2019. What is the justification of not constituting the state for 4.5 years?

Sibal: 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?

Senior Advocate Kapil Sibal concludes his arguments.

Sibal: Let the court speak on behalf of people of India because this court or any government acts for people of India. And it should not be that acts of India should be done when a part of the people of India are silenced...

Sr Adv Gopal Subramanium: It might have been a temporary provision initially. But the provision has adequate evidence to suggest that it could be there to stay. This is the crux of the matter.

Subramanium: It was the Constitution of India that gave the people of J&K to have the ability to determine their political future.

Subramanium: The constitution does recognise the Jammu and Kashmir constitution. Please see the text of Article 370 itself.

Subramanium: "Concurrence of the government...be given before the Constituent Assembly...for the purpose of framing the Constitution is convened". Constitution of state is no other than constitution of J&K.

Subramanium: The constitution 7th amendment act in Article 152 inserted the words "excluding the state of J&K." The seventh amendment was assented on 19th Oct 1956. By then, the draft constitution of J&K was introduced on 10.10.1956.

Subramanium: The word 'recommendation' was chosen consciously because the Constituent Assembly of J&K was not constituted by the GOI, it was under the proclamation of the Maharaja.

Subramanium: President is a part of the parliament. Parliament, by its very definition, includes the President and two houses. The President can never act without the aid and advice of council of ministers. The governors could but not President.

Subramanium: A claim of untrammelled power of President is flawed.

Subramanium: What is the further integration we're talking about? It is an article of faith, it's a parchment of pride for the people of J&K.

CJI: The domain of the Constitution of J&K was that which was defined by Constitution of India. This was not therefore a Constitution which was at par with or superior to Constitution of India.

Subramanium: If it meant under the Constitution of India, it also meant the order under 370(1). In this case, I'm not saying it is superior. But I'd not like to say that it is inferior because it has established courts of law and the legislature.

Subramanium: It's a constitution. The J&K HC owes its existence to this constitution. The legislature of J&K owes its existence to this constitution. These are institutions of a permanent nature established under the Constitution.

CJI: Who would appoint judges to the HC of J&K?

Subramanium: The Chief Justice is involved. The CJI is referred to.

CJI: The President would appoint judges to the HC of J&K. The President would transfer judges from HC of J&K.

Subramanium: Yes but I'm saying that the establishment of the institutions owe their genesis not to the Indian Constitution but to the J&K Constitution.

Subramanium: Yes, we thought it was temporary. But by the will of people, it became a mainstay.

Subramanium: 356, with very great respect, is never intended to be used for the purpose of usurping state legislatures. It cannot be done. That notional vesting of power is limited for a small purpose under 356. 370 isn't a purpose intra vires 356. It's alien to 356.

Senior Advocate Gopal Subramanium concludes his arguments.

Sr Adv Zaffar Shah commences his rejoinder arguments by taking the bench through the history of J&K's accession with India.

The bench rises for lunch.

CJI: At lunch, the counsels may ration time so that we're done by 4 pm today.

The bench has reconvened.

Shah: Residual sovereignty remained with the Maharaja. It got transferred over to people. It didn't go into Article 1 or 370- it has gone to the people. In exercise of that residual sovereignty, the constitution of J&K was made.

Shah: In 1957, we adopted our own constitution. Prior to that, we had Constituent Assembly. But after the constitution was adopted- the state govt comes under existence under the constitution of J&K. At the same time, it is required to give concurrence under Article 370.

Shah: Insofar as the development is concerned, they say self governance is better than good governance - give our self governance back. They say nation has to grow, we want to have a unified nation. Ofcourse, very good thought. But for that you need to win hearts of people.

Shah: You cannot form a nation by force or by compulsion. Win the hearts of the people.

Senior Advocate Zaffar Shah concludes his arguments.

Sr Adv Rajeev Dhavan: First question is of temporality because that goes to the real issue. What does temporary mean in 370?

Dhavan: What were the conditionalities available at far as 370 is concerned? There are two sets of powers assigned to Constituent Assembly - first, to reject the Constitution making process completely - that is 370(3). The Constituent Assembly didn't exercise this power.

Dhavan: The second was to fulfill its task of making a constitution. This was fulfilled in 1956. After that 370 ceases to be a temporary provision.


Dhavan: To make it a balanced cooperative federalism- we find the words concurrence, consultation, recommend. These are methods of cooperation in a cooperative federalism-and they're writ large in sixth schedule.

Dhavan: 370 is a compromise. You will find many compromises in constitution. Take for eg Art 25, Sikhs are allowed to carry their daggers. You want to get rid of that? You'll have to have a constitutional amendment. This is a compromise. The entire 6th schedule is a compromise.

Dhavan: The most important compromise of all concerned the privy purses.

Dhavan: Any compromises in the Constitution follow from an important insight of Fali Nariman- if today we were asked to make a constitution, we would not succeed...Israel was never able to come to terms with a constitution because it never was able to evolve a compromise.

Dhavan: That is the process of constitution making - to accomodate a large number of views and come to a compromise.

Dhavan: It was stated that socialism and secularism is not recognised in J&K. It's actually present in the J&K constitution. Come to Section 13.

Dhavan: Art 3 has a mandatory provision that you must circulate any bill for reorganization to that legislature. This is a mandatory provision.

Dhavan: It is true that the centre is not bound by all your recommendations and subsequent changes can take place. But this doesn't take away from the fact that Art 3 is a mandatory provision.

Dhavan: They're unable to provide a roadmap for restoration of statehood. They too are in essence are arguing that the Reorganization Act is transitional in nature. A time will come when statehood is restored. This is no roadmap at all. It is entirely illusory.

Dhavan: The basic structure applies not as a constitutional limitation but as a set of overarching principles which are the part of the Constitution.

Dhavan: Nobody has argued that the Indian Constitution is not sovereign or that Art 1 doesn't apply across the board. But I had earlier made a distinction between internal and external sovereignty.

Dhavan: How sovereignty is to be exercised is what one means by the internal sovereignty. It is the exercise of sovereignty distributed throughout the constitution.

Dhavan: The Constitution actually divides itself into two halves- a federation of state and the second part- devolutionary provisions, that is the UTs. UT aren’t part of federation, they can be taken away at any time.

Classical judgement, he quotes.

Dhavan: What is the relief we're seeking? All your lordships have to adjudicate is the temporality of Article 370...and whether mandatory provisions are defeasible.

Dhavan: The antecedent speeches are totally and completely irrelevant because as soon as 370 is born, that is the provision that is the incorporated provison.

Sr Adv Dhavan concludes his arguments.

Sr Adv Dushyant Dave: Whichever way your lordships look at this- democracy, federalism, rule of law- each one of them is a basic structure of the Constitution. Every one of those principles are completely thrown out of the window by this.

Dave: There are two powers that are fiercely independent - Constituent power and the derivate power. We have now a third situation where a constitutional power is to be exercised by the President.

Dave: Whatever their (the drafter's) intention was they have mentioned in the constitution, we don't need to travel outside of it.

Dave: For 70 years, if the government of India- order after order exercises powers under Art 370, can it now lie and say that Art 370 is temporary? That's how they've acted. Merely because government has changed does it mean it has become temporary?

Dave: 370 was never meant to be temporary. The only reason why it was made temporary was to give the Constituent Assembly a right.

Dave: It is not the case of government of India that 370 has not worked for the last 73 years. Not one example to show that 370 has failed. Everytime the government wanted to apply anything, it was automatically accepted by state of J&K

Dave: So it's unfathomable that why is it that suddenly you get up and overnight do this? In their manifesto, BJP categorically says in 2019 that we'll abrogate 370.

Dave: Because 370 had become a bone of contention with certain sections of the country. Nobody is understanding what 370 is. 370 integrates J&K with India.

CJI: Now we had made it very clear that we'll conclude at 4 pm today. Whatever now remains, you can give us submissions in rejoinder. Even in rejoinder we've heard 5 counsels...

CJI: What we will do is, we will continue for 15 mins. We will wrap up at 4.15, after that someone wants to give us in writing you can.

Dave: It's not that people of J&K will die if 370 is taken away. But people have a right to feel that can a constitutional promise be taken away like this? They're also citizens of India, they're not foreigners.

Dave: There is nothing, even after 2019. Violence has gone on unabated. People are being killed. Soldiers are dying. You have millions of troops...yes, tourism has developed because Kashmir is the most beautiful place in the world.

Dave: Mr Sibal will tell us because he has seen it much more than I have- that Kashmir is much more beautiful than Switzerland.

Dave: It's a life time promise. It's not a promise for the moment. What are we seeing today? For 56 weeks, constitutional amendments taking powers of Supreme Court...everyone is up in arms because constitution is so dear to us.

Dave: If constitutional morality is allowed to be trampled with, then nothing...

Dave: Constitutional morality must be in the heart of all citizens. Let us not allow union to steamroll so that people lose their love and affection.

Dave: You can't rule by force all the time otherwise the governance is lost...these writ petitions should be allowed.

CJI: All other submissions must be filed in one page.

Sr Adv CU Singh: Arguments are made which are completely contrary to facts on reorganization.  Please give some latitude in rejoinder- atleast 4-5 pages.

CJI: You can confine to two pages.

CJI: We must end it with a vote of thanks to the bar.

The hearings have been concluded. The judgement has been reserved.