08-Dec-2023  Srinagar booked.net


370 Hearing, Day 15: Nine Interveners Advocate In Support Of Abrogation



Srinagar/New Delhi: On the fifteen day of 370 hearing; nine interveners presented their arguments in favour of abrogation of article 370 saying that the move brought Jammu and Kashmir at par with the rest of the India.

They contended that prior to the abrogation of Article 370, residents of Pakistan controlled Kashmir faced discrimination and lacked certain privileges under article 35A when residing in Jammu and Kashmir.

The arguments centred on issues sovereignty, president’s plenary power and the impact of the abrogation on different sections of the society in J&K.

Here is the detailed hearing:

Sr Adv V Giri commences his arguments by reading from Dr Ambedkar's speech on federalism.

CJI: So we have seen the key features of the constitution which make it federal and at the same time preserve the need for uniformity.

Giri cites the judgement in State of Rajasthan v Union of India (1977 3 SCC 592) in the context of federalism.

Giri: 370 carved out an area which is not in sync with the general federal features of the constitution for the rest of the country and the Union.

Giri: The point is that over a period of 25 years, different provisions were inserted in the Constitution giving a certain special provisions for some of the states...

Giri: There are two or three features which emanate out of 370- one is that parliament requires the consent of the state govt in relation to matters which are included in List 1 and 3 but not relatable to IoA.

Giri: This sets out the relationship between Union and J&K at a plane,  I'm not saying higher or lower, I'm saying at a plane different from the constantly interworking relationship between Union and all other states.

Giri: When 370 was abrogated by CO 272 and all provisions became applicable to J&K, J&K became a state at complete par with all other states.

Giri: If Article 370 is resurrected, that would also be violative of the basic structure of the Constitution.

CJI: This might be a little too far fetched because then that would be to postulate that original Article 370 was violative of basic structure.

Giri: There was a challenge pending here for several years. 1986- A batch of petitions was then sent over to HC, they're still pending...

CJI: You can't invite us to hold in your favour on an unstateable proposition.

Giri: The federal structure mentioned under Article 370 is on a different plane...

CJI: We better wrap up now

Giri cites Madhavrao Scindia judgement.

Giri: The SG had taken your through Ganpatrao, which came later...

Adv Giri concludes his arguments.

ASG KM Nataraj: Article 370 is the only provision in the Constitution which has a self destruction mechanism.

ASG Nataraj: This article did not confer any kind of right. Three, continued application of Article 370 discriminated and opposed to basic structure. Fourth, doctrine of federalism has no application so far as process under Art 370 is concerned.

ASG Nataraj: Kindly have a look at Art 368 in juxtaposition to Art 370...Article 368 recognises federalism in the matter of amendment to Constitution.

ASG Nataraj: The collective consent theory is introduced under Article 368 for the purpose of amending the Constitution.

ASG Nataraj: When it comes to Article 370, the language is just 'recommendation'.

CJI: But equally, the adaptation to the Constitution ensured that even in the matter of amendment, the president still has to go through the route of Art 370(1).

CJI: But equally, the adaptation to the Constitution ensured that even in the matter of amendment, the president still has to go through the route of Art 370(1).

ASG Nataraj: Reading these two articles together in a different language will make either of them redundant.

Justice Khanna: Mr Nataraj, what you're probably trying to highlight is that the argument that the federal structure gets affected because of abrogation of 370 should not be accepted for the reason that the federal structure is protected by 368.

ASG Nataraj: Yes.

ASG Nataraj: It's a unique, extraordinary power conferred on the President to abrogate or change- which has the flavour of constituent power, executive power, and legislative power. That is a plenary power conferred on president.

ASG Nataraj: Such an extraordinary power should not be read with any limitations and it must be given the fullest meaning.

ASG Nataraj concludes his arguments.

Sr Adv Mahesh Jethmalani: I appear for intervenors. My clients are members of the Gujjar Bakarwal community in J&K. They're members of a scheduled tribe. And they constitute 73.25% of the total ST population of J&K.

The reason that the provisions of the constitution pertaining to scheduled tribes - 330 etc were never applied...

CJI: But your knowledge is theoretical unless you can state with certainty before us that you've driven around in Ladakh.

Jethmalani: I've been to Ladakh but many many years ago. In the days when houseboats used to flourish - in those days. And they've come back now.


CJI: Houseboats in Ladakh? I've not seen a houseboat in Ladakh.

Jethmalani: No no, houseboats in Srinagar.

Jethmalani: The Himalayan car rally used to take place there in former days - that has now been revived. My daughters schedule to go their soon in Leh and Ladakh in the Himalayan rally. They're taking a sports car themselves and travelling.

Jethmalani: My clients are restricting themselves to the challenge to 370(3) and the proviso as also to the amendment to 367.

Jethmalani: As far as political sovereignty is concerned, it rests with the Union, qua the state. A simple look at the Preamble would show that. The preamble of the two- the Union and the state of J&K would reveal that.

Jethmalani: Have a look at our preamble. Word 'sovereign' is key here. In contrast, see J&K Constitution Preamble. The preamble makes no mention of sovereignty. It defines the existing relationship of Union and state. It's an acknowledgement of union's sovereignty over the state

Jethmalani: The permanent residents of J&K are citizens of India. Though Mr Lone may sometimes behave like it's not so.

Jethmalani: Legislative sovereignty is divided into the union and the state...the matters in Concurrent and union list acceded to by the then Maharaja are within realm of centre and other parts are within jurisdiction of state.

CJI: So you accept that sovereignty has two connotations- one, external that vests with Union, and internal sovereignty which is then distributed between union and state.

Jethmalani: Yes but the constitution envisages that from time to time more Provisions are made applicable.

Jethmalani: Article 370(3) is indicative of the fact that ultimate legal sovereignty, in the sense that you can get away with the tunnel altogether, that ultimate legal sovereignty rests with the Union of India.

Jethmalani: 147(c) is an acknowledgement by the State of J&K that they cannot touch the constitution of India as applicable to the state of J&K.

Jethmalani: Article 370 is a provision that is a part of the temporary provisions of the Constitution. The title of the Article describes the provision as temporary provisions.

Jethmalani: Unless clearly stated, it would not take away the substantive rights under the provision (Article 370(3)).

Jethmalani: All documents from 1948 to 1950- all constitutional documents indicate that a constituent assembly for the purpose of framing a constitution was necessary. Which is why Art 370(3) referred to the Constituent Assembly.

Jethmalani: This doesn't mean that once the Constituent Assembly completed its task- which was the task of framing the constitution, Article 370(3) would have no meaning and it would be otiose.

Jethmalani: On the contrary, the COs issued from 1948 onwards indicate two things - 1. They expressly indicate that the Constituent Assembly and Legislative Assembly insofar as they apply to the Constitution of India are synonymous.

Jethmalani takes the bench through CO 10 (26 Jan, 1950), CO 39, CO 48 (15 May, 1954).

Jethmalani: In CO 48, for the first time Article 367 was amended in application to J&K. The same procedure was followed.

CJI: The fact still remains that after the Constitution of J&K was framed on 26 Jan, 1957, Article 367(4)(d) was again amended to delete clause (d). So that equivalence between constituent and legislative assembly ceases the moment Constitution of J&K is framed.

Jethmalani: This was deleted because after the dissolution of the Constituent Assembly, the constituent power in J&K was now the legislative assembly. The power of amendment under Art 368 is in virtue of constituent power.

CJI: The only difference is that legislature which exercises the power of amendment is not a constituent assembly, it is exercising a constituent power.

Jethmalani: I agree but the alternative conclusion would be that you could never abrogate Article 370.

Jethmalani: All that the amendment to 367 did was to recognise an implicit provision. It was not only synonymous but also its successor. CO 272 did not make a substantive change. It made a clarificatory change which was already implicit.

Sr Adv Mahesh Jethmalani concludes his arguments.

Sr Adv Gurukrishna Kumar: I appear in an IA. The applicants are persons displaced from that portion of J&K which is now called Pakistan occupied Kashmir.

Kumar: The rights perspective is the decisive factor in determining the tenability of the challenge mounted by the petitioner. The rights perspective will trump all allegations of procedural infirmities.

Kumar: The reason why I make this submission is that whether it be these intervening applicants or any others...they represent a cross section of people from J&K who have suffered discrimination and loss of rights.

Kumar: For example, the intervenors are probably the first victims of the problems which took place during partition...these persons were displaced from force of circumstances.

Kumar: What is the problem they've suffered because of S 6 of J&K constitution and Article 35A of Indian Constitution as applicable to J&K? 6 purported to set out who permanent residents are. 35A said that permanent residents will get certain benefits.

Kumar: Permanent residents were defined in a manner that even those who were citizens of J&K, because of the external aggression during 1947- they're excluded.

Kumar: If you are in other parts of the country, you won't get.

Kumar: I have given the case of how around 8700 people left that place during partition. Today, after the promulgation of impugned COs, at least 23,000 people have received domicile certificates.

Kumar: They have made an exception to this that those persons who may have gone to Pakistan if they come back, they'll get the benefits.

Kumar: The anomalies are writ large.

Kumar: The J&K constitution makes provision for seats for PoJK in the assembly.

Kumar: What they're saying now is that asymmetric federalism is being recognised. Now please stretch this and say that multi symmetric federalism of 370 should also be taken to be a basic feature or facet of federalism.

Kumar: Today what they want to do is- equate 370, which is temporary, with 371 which is special provisions. That's why I say it's a derivate argument they want to make.

Kumar: Impugned COs are reflective of transformative constitutionalism.

Kumar: Impugned COs ensure that the Constitution of India with all its plenary scope applies to the State. The challenge of the petitioners is contradiction in terms because this is a case where application of constitution of India is sought to be challenged.

Kumar: The COs make provisions for realisation of rights.

Sr Adv Gurukrishna Kumar concludes his submissions.

A counsel appears for 'Roots in Kashmir', an organisation which is espousing the cause of Kashmiri migrants or displaced persons.

Counsel: Art 1 is completely applicable to J&K and the state is completely part of India.

CJI DY Chandrachud: We had said we will conclude at 1 o clock. We will not cross one minute after that. You can argue for the next 3 mins but we are rising at 1.

Adv Kanu Aggarwal: Federal diversity in the Indian Constitution exists on a two dimensional plane. At the centre would be the classical understanding of a state. To the right of it would be states with limited special features like Gujarat or Maharashtra.

Agarwal: Thereafter would be states under fifth or sixth schedule. To the right end of it was the erstwhile Article 370. What petitioners forget is that there is a scale to the left of it as well.

Agarwal: The scale to the left is the union territories with legislature, the UT of GNCT of Delhi and perhaps pure union territories. Therefore, federal diversity is undoubted. Diversity is a constitutional fact but not all facts can be elevated to basic structure.

Agarwal: The second point is on Constituent Assembly. There are two kinds of constituent powers- original and the derivative power. Derivative power is always with further legislatures, the parliament in this case.

Agarwal: The Constituent Assembly of J&K had no original constituent powers as- a) they were established under proclamation of maharaja that had already signed an IoA.

Agarwal: The Maharaja already recognised supremacy of Indian constitution and three, unequivocally, Art 1 was enforced.

Agarwal: The Maharaja who was not a sovereign could not have passed a better title than what he had. If he was not a sovereign, the constituent assembly could never have been a sovereign constituent assembly, could never have established a sovereign constitution.

Agarwal: It automatically exercised derivative constituent powers. If it is exercising derivative constituent powers, it is akin to a legislative assembly.

ASG Vikramjit Banerjee: The original Constitution in this chapter was temporary and transitional provision. This means that the objective of the original part was this was a transitional provision.

Adv Archana Pathak Dave: Noone has talked about rights of women that were taken away. The permanent residentship would not come to women who married outside the State of J&K.

Dave: The full bench of HC held that they'll have the right even if they marry outside the State but the AG then said that they will not get right to employment, scholarship, right to hold immovable property...if you marry outside J&K.

Adv VK Biju: I'm appearing for a retired major...370(3) provides for a way to abrogate...368(2) has nothing to do with 370.

Counsel: Can someone be allowed to raise a question mark on nationality?...If in 2023 I have to prove that I am an Indian then is my dignity not affected?

The counsel highlights that the consistent position of India before the UN security council has been that all sovereignty lies with Union and not J&K.

Another counsel: All leaders unequivocally said that J&K is an integral part of India.

Counsel: The violations of rights of those persecuted is so extensive that it has been recognised as a great human rights violation in 2019- violation which is considered international crime in international law, therefore attracts customary international law and jus cogens norm

Sr Adv Kapil Sibal requests to file his response to submissions made by respondents.

SG Mehta: They're longer than the main submissions.

Sibal: You have filed hundreds of documents, I never objected.

The respondents have concluded their arguments….

To be continued….