Article 370 of the Constitution, which conferred special status on the erstwhile state of Jammu and Kashmir, was not a repository of unrestrained power but a mechanism through which the Indian Constitution would be applied to the state, the Supreme Court heard on Wednesday.
Senior advocate Gopal Subramanium, representing petitioner Muzaffar Iqbal Khan, told a five-judge constitution bench led by Chief Justice DY Chandrachud that the Jammu and Kashmir constituent assembly did not want to abolish Article 370 and allowed it to persist.
Petitioner Iqbal Khan has contested two constitutional orders issued by the Centre on August 5 and August 6, 2019, through which Article 370 was revoked.
“Even though the word ‘temporary’ appears in the marginal notes of Article 370 of the Constitution, the resolution passed by the Jammu and Kashmir constituent assembly said that the Constitution of India must apply with these modifications. The constitution of Jammu and Kashmir and Indian Constitution were speaking to each other through Article 370,” Advocate Subramanium said.
“Article 370 was not a repository of untrammelled power, but a medium through the Indian Constitution would apply [to the state],” he said.
“It is respectfully submitted that Article 370 ought not to be read or interpreted as an expression of power politics or a bargaining chip. Rather, it should be interpreted as a principled compact between the people of India (acting in their constituent capacity through the Indian Constituent Assembly) and the people of the State of Jammu and Kashmir,” he continued.
The senior counsel underscored that multiple approaches could be taken in constitutional arguments, including historical, textual, doctrinal, and structural arguments, but the outcome would remain the same.
“The impugned orders – Constitution Orders- 272 [issued on August 5, 2019] and Constitution Order- 273 [issued on August 6, 2019] – in sum and substance do away with the Constitution of Jammu and Kashmir. That is impermissible, not authorised under the law,” Subramanium said.
Subramanium referenced Chief Justice Chandrachud’s observation from Tuesday that in a representative democracy like India, the people’s will is expressed through established constitutional institutions. He argued that the constituent assembly of Jammu and Kashmir affirmed by a resolution that they did not wish to abrogate Article 370, desiring it to function as a communication conduit between the two constitutions of India and Jammu and Kashmir.
He said, “I am going to urge that the expression Constituent Assembly and the legislative assembly of a state are both institutions recognised under our Constitution. If the Constituent Assembly of J&K, which is the body of people, has taken these proactive steps and we have accepted those proactive steps, can we unilaterally abrogate this arrangement?”
The senior counsel highlighted that Article 370 established the contours of the federal relationship between Jammu and Kashmir and India.
Justice Khanna, addressing the Subramanium, said that the Constitution (Application to Jammu and Kashmir) Order, 1954 shows that the Indian Constitution was adopted with omissions and modifications as applicable to Jammu and Kashmir.
“You may call it the J&K Constitution. But what was adopted was the Indian Constitution with exceptions and modifications,” he said.
Subramanium concluded his argument by saying that Article 370 could only be repealed by the Jammu and Kashmir Legislature and not by the Union Parliament.
The Court will now hear the arguments of senior advocate Zafar Shah, who is representing the Jammu and Kashmir Bar Association, on Thursday.
In a parallel development, the Supreme Court affirmed on Tuesday that there would be no Brexit-like referendum to ascertain the fate of Article 370’s abrogation. The CJI said that India is a constitutional democracy and that the will of the people can only be determined through established institutions.
Several petitions contesting the revocation of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which divided the former state into two union territories, were referred to a Constitution bench in 2019.
The case regarding the legality of the abrogation of Article 370 is being heard by a five-judge constitution bench made up of CJI Chandrachud, and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.
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