Open Access Research Article
EXAMINING THE HURDLES IN REMOVING THE ARTICLE 370 A CLOSER LOOK AT THE CASE HEARINGS
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Article Details
EXAMINING THE HURDLES IN REMOVING
THE ARTICLE 370: A CLOSER LOOK AT
THE ARTICLE 370: A CLOSER LOOK AT
THE CASE HEARINGS
AUTHORED BY - HARIHARAN S,
SCHOOL OF EXCELLENCE IN LAW, TNDALU,
III YEAR, B.A.LL.B.(HONS.),
CONTACT: 9025681163
Abstract:
A Writ
Petition was filed for the challenges to the Abrogation of Article 370. The
Petitioner were Manohar Lal Sharma, Dr. Charu Wali Khanna, Mohammed Akbar Lone,
Hasnain Masoodi, Shakir Shabir, Anuradha
Bhasin and the Respondent was the Union
of India[1]. This hearing
was held on five benches for 16 days in the Supreme Court of India. Both
petitioners and respondents presented their arguments. The petitioner's senior
advocate stated what wrongs were done by the union during the abrogation of
India and also said that Article 370(3) was violated by the union. They also
stated that the state is a special, concurrent one, so the president has no
power to abrogate the article without the recommendation of the state of Jammu
and Kashmir, and Parliament has no power to abrogate. These points are argued
by the petitioner, and the respondent side gives the argument in support of the
abrogation. The Solicitor General explains how the president and Parliament
will get power to revoke Article 370 and also states the benefits of the state
of Jammu and Kashmir, such as reservation, development of industries, and
reduced terrorism.
Keywords:
Article 370, Kashmir,
Concurrent, Reservation
Introduction
This topic is about the
hearings regarding the abrogation of Article 370, and you all may know about
this. It is a five-bench hearing case held by Chief Justice of India D.Y.
Chandrachud, S.K. Kaul J, Sanjeev Khanna J, B.R. Gavai and Surya Kant J in the
Supreme Court. On both sides of the case hearings, petitioners and respondents
argued about the article. The petitioner challenges the abrogation, and this
side is argued by nearly 20 advocates. on behalf of many members of the Jammu
and Kashmir people, and the respondents are supporters of abrogation, and this
side is argued by the solicitor general and attorney general of India on behalf
of the Union of India. The petitioner gives many arguments against Article 370
abrogation, and respondents give counterarguments. In this power of the
President, the union constituent assembly and legislative assembly with regards
to abrogate are well defined.
It is a 16-day hearing,
with the first nine days for petitioners and the remaining days for
respondents.
Arguments of Petitioner’s side:
1st day begun by Senior
Advocate Kapil Sibal focused on the political background of Article 370 from
the princely state of Kashmir to agree to part of India. He said that only the
Constituent Assembly of Jammu and Kashmir could abrogate Article 370, but it
was dissolved in 1957. The abrogation of the article should have been repealed
before it was dissolved in 1957, but it was not repealed. No other entity
repeals Article 370; it is a permanent feature of the Indian constitution.
Sibal said that as long as it wasn't repealed, it couldn't be repealed by the
president of India, and he referred to the constituent assembly debates, where
Gopala Swamy Iyengar stated that the recommendation of the constituent assembly
is the condition precedent for the president of India to abrogate Article 370.
He pointed out that without the consent of the Kashmir people, it was revoked.
He emphasized that Jammu and Kashmir's accession to India was dependent on the
will of the people. While abrogating Article 370 without the consent of the
people, the union breached the constitutional framework. He said that, since
the abrogation election was held in Jammu and Kashmir, the parliamentary
election was conducted[2].
On day 2, he mainly
noticed the presidential order in the 2018 presidential notification-imposed
presidential rule under Article 356 in Jammu and Kashmir. In 2019, amended
Article 367 effectively allowed the union to remove Article 370 without the
recommendation of the J & K Constituent Assembly [3].
On day 3, he argued
that in Abrogation of Article, the president is executive action; it will be
political action, and he emphasized that presidential order C.0. 272 created
the constitutional myth because this order stated that the governor could act
on behalf of his Council of Ministers in presidential rule, but there is no
Council of Ministers in Jammu and Kashmir. He elaborated that by using the amended
Article 367, in Article 370(3), the word "Constituent Assembly" was
replaced by "Legislative Assembly." He clarified it is an
interpretation clause, not a substitute clause, and also asked how parliament
will declare itself as a constituent assembly. Finally, he said that Parliament
had no power to abrogate Article 370.
On day 4, the Senior
Advocate argued for the petitioner side, starting with the Presidential Order
of 1954, which enumerated that not allowed to abrogate or legislative assembly
to abrogate. Advocate Gopal Subramanian ensured that it was revoked
unilaterally. He argued that the president of India and the Legislative
Assembly of Jammu and Kashmir are bound by bilateralism and federalism, and it
is a concurrence state. If there is any change, addition, or removal, it should
be done bilaterally.
But when Presidential
Order C.O. 272 passed in 2019, the President acted on behalf of both sides. He
stated that, because of this, the abrogation of Article 370 is invalid.
On day 5, Senior Advocate
Zaffar Ahmad Shah appeared on behalf of the Bar and Association of Jammu and
Kashmir and stated that the autonomy was decimated and the J&K was not
completely merged with India. Immediately, Justice D.Y. Chandrachud and Justice
Khanna said that Jammu and Kashmir are integrated with India and that
sovereignty surrender to India is absolute. Later, Advocate Shah argued that
the state is a concurrence and got a peculiar position that rooted its
autonomy, and various provisions of the Constitution of India applied to
J&K with exceptions and modifications. Article 31 of the constitution of
J&K is an oath taken by the governor, which states that he or she will
"preserve, protect, and defend the constitution and law" and also
bind himself to "devote himself to the service and well-being of the
people of the state"[4].
The Governor should communicate his concurrence with the passing of
Presidential Order C.O. 272. The governor breached the oath and was liable to
be breached. Then Advocate Rajeev Dhavan argued that the special status awarded
to Jammu and Kashmir reflected the "diversity" they promised to the
people among them. So, all actions taken by Parliament and their interpretation
of the Constitution must keep this promise of diversity in mind. He argued that
Article 370 was a manifestation of diversity so that the President of India
could only make law for the J&K after getting concurrence from the state
government.
On the 6th day, the
Senior Advocate argued about Presidential Order C.O. 48 of 1954, which said
that the Indian Constitution applies to Jammu and Kashmir with some exceptions
and modifications. For example, Article 3 of the Indian Constitution states the
formation of new states and the alteration of areas, boundaries, or the naming
of the states. Now the presidential order has modified that "no bill
providing for increasing or diminishing the area of the State of Jammu and
Kashmir or altering the name or boundary of that state shall be introduced in
Parliament without the consent of the Legislature of that State[5].
He stated that it cannot be substituted during the proclamation under Article
356. Then Bench asked whether, under presidential rule, the president cannot
exercise the powers under the provisions of Articles 3 and 370. Advocates make
the counterargument that Article 356 is not absolute. The president's rule
can't grant power to amend or deprive it of mandatory processes.
He gave more
examples of other states that had some
autonomous
things below:
1. Article
164: In the states of Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha,
ministers were appointed to govern the welfare of the scheduled castes and
backward classes.
2. Articles
239A and 239AA: In Pondicherry and the NCT of Delhi, a special provision was
established.
3. Article
244A: In Assam, it allows the creation of an autonomous state within certain
tribal areas[6].
These
autonomies are fundamental to our constitution, and special features are
considered regular features of the constitution. He argued that India was a
facet of "multi-symmetric federalism."
Dushyant Dave argued
about the presidential order of 2019 and the abuse of the constitutional
mandates of Article 370. During the period of the president's rule, the
lawmaking power of the president is limited. The president had no power to
amend the permanent provision of Article 370, so he could not abrogate the
presidential rule.
On the Day 7, Senior
Advocate Dushyant Dave argued that the BJP's 2019 Election Manifesto promised
to abrogate Article 370, so it was one of the reasons for abrogation. Nahide
stated three things:
Part II of the Indian
Constitution shows the relationships between the state and the Union of India.
Parts V and VI state the executive and legislative powers of J&K. In any
provision, there is no express statement to abolish Article 370 by the Union.
Article 3 does not
provide for the abolishment of the state, and the existence of the state is the
basic structure of the constitution.
There are some disadvantages after the
reorganization of the state:
1. Ladakh: No Representative
Members for the Rajya Sabha
2. Jammu and
Kashmir: No members represent the Lok Sabha.
3. Jammu and
Kashmir: no MLA electoral college for voting president
4. Jammu and
Kashmir have no representative members in the GST Council.
5. Jammu and
Kashmir has no governor and has not consulted for the appointment of high court
judges.
Advocate
Dinesh argued that the relationship between Jammu & Kashmir and India was
one of federal government and dual politics. However, the Union Act was a
unitary policy.
On the 8th day, Senior
Advocate Dwivedi C.U. Singh argued that the president's power under 365 was
limited. Advocate Sanjay Parikh stated in the 1944 Naya Kashmir manifesto that
the people of Kashmir said, "We don't need a monarchy, and we have a
democratic constitution," so how is it possible to abolish Article 370?
Advocate Sen argued that the majority of people in J&K are Muslims, and
there is a conscious choice. Of this, the majority of them go to Pakistan, and
the minority come to India. Some other minority people need some protection, so
the existence of Article 370 is necessary.
On the 9th day, Senior
Advocate Nitya Ramakrishnan argued that Article 370 is "Sui generis"
and that power is vested with the J&K. Advocate Maneka Guruswamy said
Article 370 is a "unique brand of Federalism." Advocate Warisha
Farasat ensured that the state of India except J&K is holding together
federalism, but J&K was coming together federalism and asked to bench
Article 370 interpreted strictly.
Impacts of the abrogation of 370:
1. Advocate
Irfan Loneliness, sentiments, aspirations, or the will of people
enshrined in J&K were destroyed.
2. Advocate
Zahoor Ahmed Bhat says that by abrogating the article, there is a violation of
constitutional morality and national interest.
3. Advocate
Baig referred to A.G. Noorani's book, Abrogation of Article 370 Is
Unconstitutional.
4. Advocate
Gopal Sankaranarayana argued that Article 370 is a permanent feature because in
this provision there is a word of consultation, concurrence, and recommendation.
While abrogating the article, these are not followed by the Union[7].
By this hearing, the petitioner's
side was complete, and 18 counsels stood on the petitioner's side.
Arguments of Respondent’side:
The respondent side
argued with the solicitor general of India, Tushar Mehta, and the attorney
general of India, Venkataramani, and gave more arguments that the abrogation of
Article 370 is valid and the president has the power to revoke it. From day 10
to 16 day were argued by the Respondents. We will see their
arguments.
On day 10, Attorney
General Venkataramani stated there had been 113 presidential orders related to
Jammu and Kashmir till now. After his statement, Solicitor General Tushar Mehta
argued with a series of dates and historical documents. He started his
arguments by arguing that J&K never had a special status and that India has
retained that state's sovereignty. It is a part of India. He remembered that
Hari Singh signed the agreement between us. In this agreement, J&K gave
sovereignty to us, but it was acted upon by its autonomy. There is no unique
autonomy because there are various autonomous entities that exist in List II,
or the State List. So, this state is not special.
On the 11th day,
Solicitor General Tushar Mehta argued that Article 370 had a different set of
rights, as follows:
1. DPSP,
States, Union Territories, 5th and 6th Schedules
2. Socialist,
secular, and integrity
3. Part III of
the Indian Constitution was applied partially.
Article
15(4) of the J&K Constitution disallows the state territory reasonable rest
under Article 19, allowing the state legislative to continue until 1979.
Articles 20, 21, 22, 31, 31A, and 32 are applied with the modifications. These
are the heart and soul of Part III of the Constitution, so it should be changed.
After the abrogation of
Article 370, the tourism industry and investment were expanded in the state,
and employment and income were increased in this region. He also argued that
the Constituent Assembly is always the Legislative Assembly because it is the
"interchanged floating way." Article 1 of the J&K constitution
noted that if the state is bound by another constitution, the Constituent
Assembly acts as a legislative body and makes legislative enactment[8].
Nehru The Prime Minister of India said that Article 370 is part of
transitional, provisional arrangements. It isn't permanent. Mehta stated that
Article 3 was suspended when the president ruled. Justice Bench was asked if
the legislature was suspended automatically by presidential rule, then why was
Article 3 suspended? Mehta answered that the legislative assembly was only
suspended, and it couldn't reconvene or do anything to avoid the consequences.
On day 12, the
petitioner side stated that the Union had broken the constitutional provisions
made to the people of Kashmir, and Mehta replied to this provision with a
different footing than other states, so the president had the power to
abrogate. Suddenly, Justice D.Y. Chandrachud asked Article 367 if the
interpretation clause for the constituent assembly was replaced by the
legislative assembly and how the union would use this article as a substitute
clause for the abrogation. The solicitor general replied that the president had
the power to use Article 367 because, when dissolving the Constituent Assembly
in 1957, it should not have mentioned the abrogation of Article 370, so the
"absolute discretion" was given to the president, and the president
had the power to abrogate[9].
He also argued that
Article 370(3), the word recommendation of the constituent assembly of Kashmir,
is just a word, and the president should not be bound by it. The word
"recommendations" was dissolved when the constituent assembly
dissolved in 1957 and stated that the president's power is dependent on the
decisions of other bodies.
CJI Chandrachud said it
may not be correct because of some restrictions for all governments and the
word "shall" in Article 370(3), so there must be a recommendation
necessary. Mehta ensured that even if a recommendation is mandatory, the president
cannot be bound by it. The preamble of the J&K constitution did not state
the governance of J&K, and it defined the existing relationship of the
state with the Union of India as integrated therewith. He enumerated Article
370 as temporary for many reasons given below.
1.
Inserted Article 370 under Part XXI of the Constitution states
that it is temporary, transitional, and has special provisions.
2.
The power of the President as well as state government
under Article 370 is "extensive and
extremely wide."
3.
Article 370 is self-destructive under Article 370(3)[10].
The
abrogation of Article 370 improved the strategic borders, strategic location,
strategic territory, infiltration, influence, and outside forces, and there are
plans such as the gainful enlargement of youth schemes for the protection of
border residents and state self-democratic government.
On the 13th day, the
bench was asked to submit the "blueprint" of the reorganization of
Jammu and Kashmir and also inform when the election would be conducted in the
state.
Firstly, Mehta
submitted that the union is ready to announce elections in J&K anytime, and
the union is waiting for the Election Commission to complete updating the voter
list in the state. District elections were already conducted in the state. He
also said that for the first time, the third-tier Panchayat Raj system would be
introduced in J&K, so panchayat elections would be held. Leh Hill
development elections in Ladakh are already done, and the Kargil Hill
development election will be held at the end of this September. Municipality
elections will be held, and later the Legislative Assembly election will be
conducted. There is an improvement in the law and order at J&K. Since
August 2019, "terrorist-initiated instances" have been reduced by
45.2%, and infiltration has been a major issue in the region of the state by
90.2%. Law and order were reduced by 97.2%. There is increased employment for
the youth who were misled by the outsiders of the country. In 2018, cessation
forces organized 52 bands, which were
reduced to zero[11].
The Attorney General of
India argued about the president's power to repeal Article 370 and that he or
she is not limited or paralyzed when there is an impossibility situation, such
as a lack of a Constituent Assembly. As stated above, in Article 370(3), it is
not possible to get the constituent assembly dissolved in 1957. In this case,
the president decides from time to time and has the power to abrogate Article
370 when it's necessary for the state. Senior Advocate Rakesh Dwivedi argued
that presidential power is neither executive nor legislative; rather, it was a
constituent one as it framed the original constitution. Justice Khanna
disagreed and said that constituent power was not made by the Constitution
itself but was made by either the legislative or executive. Dwivedi replied
that the power of the president under Article 370 was wider than ordinary
executive power.
On the 14th day,
Dwivedi argued that Article 370 was a constituent power because it amended the
application of the constitution of J&K. He also stated that the
recommendation of the J&K constituent assembly to abrogate was not binding
upon the president. There is no ambiguity when a president acts at his or her
discretion. The petitioner argued that there should be bilateralism when
abrogating, and Dwivedi replied that Article 370 is the power source to create
and remove the constitution and constituent assembly. The petitioner does not agree
with this, and the respondent stated that the power sources of the J&K
constituent assembly and its constitution flowed from Maharaja Hari Singh. The
monarchy of Hari Singh was naturally dead when people needed democracy, so
Maharaja could not create a constituent assembly by himself. The constitution
of J&K is bound by the limitations imposed on it by the Indian
Constitution. J&K is subordinate to the Indian Constitution.
1.
In the Indian Constitution, J&K was declared a federal
government.
2.
The permanent residents of Jammu and Kashmir were declared
citizens of India.
Article 370 already
existed before the Constituent Assembly was established in 1951. In 1949,
Yuvaraj Karnal Singh's proclamation created a relationship between Jammu and
Kashmir. This state is part of India and bound by the Constitution of India.
sovereignty completely with the Union of India. Article 370(2) functions are
limited. The president's power to abrogate Article 370 is absolute. President
power was not "cease to exist"; constituent assembly is "cease
to exist"[12].
On day 15, the
Solicitor General argued that the lead petitioner, Mohammed Akbar Lone, chanted
"Pakistan Zindabad" publicly in the Jammu and Kashmir Assembly in
2018 and that, in its seriousness, Mehta strongly opposed the terrorism and
cessations by Pakistan in Jammu and Kashmir. Senior Advocate Giri argued that
Article 370 made the relationship between us different, so the president should
need the consent of J&K to make the laws. Article 370(3) is not a feature
of federalism, so Article 370 would not be a violation of federalism.
Senior Advocate Mahesh
Jethmalani argued that 73% of the scheduled tribe population of J&K were
supporters of abrogation. By abrogation, it gave them protection and
reservation for the first time and also pointed out that if constituted
authority takes place in the constitutional assembly, then it also takes place
in the legislative assembly. Advocate Guru Krishna Kumar stated that Section 6
of the Constitution of J&K and Article 370 of the Constitution created the
"anomalies." It provided special rights to permanent residents of
J&K only and allowed the person to be in POK. When the presidential order
abrogated Article 370, which rectified the anomalies, he enumerated that 23 to
24 thousand people had received their domicile certificates from the abrogation[13].
Advocate Kanu Agarwal argued that the constituent assembly did not have
original constituent power. When India was acquired, the state constituent
assembly and constitution were based on the derivative power, which was subordinate
to the Indian constitution.
Advocate Archna Pathak
ensured that J&K women regained their rights to acquire property and
beneficiaries even if they married someone outside the state by abrogating
Article 370. By doing so, the respondent's arguments were completed.
It's time for
rejoinders, and the petitioner gave counterarguments to the respondents.
Advocate Sibal opened the rejoinder and said that the status given to Jammu and
Kashmir is not special in any way and stated that the historical context in
which accession was signed was different from the state, so that was special.
He argued that there are two requirements for the abrogation of Article 370
where the recommendation of the constituent assembly is necessary, and it was
received before the president made the decision to abrogate the article, and it
should not be reversed. Article 53 of the constitution of J&K states that
the governor got the advice of the Council of Ministers to dissolve the
assembly. Except for Sections 36, 38, and 92, under every other condition, the
governor should get advice from the council of ministers, but the governor had
not acted by law.
On the last day,
Rejoinder’s points continued by Sibal, who stated that CJI Chandrachud pointed
out the significant silences in Article 370 on Jammu and Kashmir status and
that slow integration was complete, and he also said that J&K was never
consulted when issued the presidential order. Subramaniam contended that the
Indian constituent assembly should give a sense of space and choice for the
people of Jammu and Kashmir to decide their own will. Senior Advocate Zafar
Shah from J&K for the rejoinder said that inviting the J&K Constitution
as inferior wasn't correctable for its people. Dhavan clarified that they had
not challenged the abrogation because there were limitations under Article 368.
Dinesh Dwivedi argued that the union wrongfully relied on the Maqbool Damnoo
vs. State of J&K 1972[14]
case to justify Article 367, and that case fact was different and did not make
changes in the constitution. The main thing that requires the president to
abrogate Article 370 is concurrence and consultation with the state. After his
arguments, Benches instructed all other councils to submit their rejoinders on
paper. After these 16 days of hearings, the challenge to the abrogation of
Article 370 came to an end.
Conclusion:
Finally, the court
ensured that the abrogation of Article 370 was valid and constitutional. The
president has the power to abrogate. Due to abrogation, Indian security is well
developed, and the people of Jammu and Kashmir get various rights. This article
helps us understand the power of the president to abrogate Article 370 during
the president's rule of state in 2019. It will give us various perspectives
about the abrogation of the article. With this decision, the relationship
between the state of Jammu and Kashmir and the union will be stronger and
improve the welfare of India.
Suggestions:
From my point of view,
the abrogation of Article 370 is the correct one. Before the abrogation, Jammu
and Kashmir had autonomy. Except for defense, communication, and foreign
affairs, the Union is not involved in the state of Jammu and Kashmir, so
J&K independently exists. Due to this, the Union of India couldn't make a
peaceful border, so a lot of struggles evolved. Pakistan influenced the people
of J&K to become terrorists, and
they did terrorism. It affects the security of the state, so it is needed to
abolish Article 370 for state security. The president has the power to abrogate
Article 370 without the recommendation of the state government; even a recommendation
is mandatory because the president is not bound by it. The president has the
power to pass presidential orders during the president's rule. It gives the
various changes in the state of Jammu and Kashmir, such as
1. Introduce
the 3-tier Panchayat Raj system.
2. Ladakh's
Leh hill development was conducted, and Kargil hill development will be
conducted.
3. Terrorist-initiated
instances have decreased by 45.2%.
4. Infiltration
was reduced by 90.2%.
5. The bandh
organized by the cessation forces was reduced to zero.
6. 73 percent
of the scheduled tribes were supported, and they got protection and
reservations.
7. Women
regained their rights even if they married a person of another state due to the
abrogation of Article 370.
8. After
abrogation, any person in other states of India can buy land in J&K, and
any person in J&K can sell land to any other state of India.
9. There is
enhanced industrial development, and education reservations are well improved
now.
10. Expenditure
on defense was reduced due to the abrogation of Article 370.
References:
1. https://www.scobserver.in/cases/challenge-to-the-abrogation-of-article-370-case-background/
2. https://www.scobserver.in/journal/supreme-court-hears-challenge-to-abrogation-of-article-370-day-1/
3. https://www.scobserver.in/journal/supreme-court-hears-challenge-to-abrogation-of-article-370-day-2/
4. https://www.scobserver.in/reports/abrogation-of-article-370-day-5/
5. https://books.google.de/books?id=qcNAEAAAQBAJ
6. https://www.scobserver.in/journal/10299/
7. https://www.scobserver.in/journal/supreme-court-hears-challenge-to-abrogation-of-article-370-day-8-9/
8. https://www.scobserver.in/journal/supreme-court-hears-challenge-to-the-abrogation-of-article-370-day-11/
9. https://www.scobserver.in/reports/abrogation-of-article-370-arguments-matrix
10. https://www.scobserver.in/journal/supreme-court-hears-challenge-to-the-abrogation-of-article-370-day-12/
11. https://www.scobserver.in/journalsupreme-court-hears-challenge-to-the-abrogation-of-article-370-day-13/
12. https://www.scobserver.in/journal/supreme-court-hears-challenge-to-the-abrogation-of-article-370-day-14/
13. https://www.scobserver.in/journal/supreme-court-hears-challenge-to-the-abrogation-of-article-370-day-15/
14. https://indiankanoon.org/
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Article Information
EXAMINING THE HURDLES IN REMOVING THE ARTICLE 370 A CLOSER LOOK AT THE CASE HEARINGS
Authors: HARIHARAN S
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/17
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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