Article 370 case: Continued existence of States integral to federalism in India, says Supreme Court

The continued existence of States is integral to the concept of federalism in India, the Supreme Court orally observed on Thursday while hearing the challenge to the abrogation of Article 370 of the Constitution which conferred special status on Jammu and Kashmir [In Re: Article 370 of the Constitution].A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant made the observation while hearing arguments of Senior Advocate Rakesh Dwivedi, who appeared for an intervenor in support of the abrogation of Article 370.Dwivedi submitted that there is a presumption of validity of the move to revoke the special status of Jammu & Kashmir."If two views are possible, then the one which sustains the exercise of power has to be preferred...What your lordships deal with today is the constituent power which is laced deeply with elements of acts of State."The CJI replied that modifications can only take place within the Indian Constitution and it cannot happen with the J&K Constitution. He added,"The continued existence of States is integral to federalism in India.".Today marked the thirteenth day of the hearing in the petitions challenging the Central government's move in August 2019 that resulted in the revocation of the special status of Jammu and Kashmir (J&K)..The Central government at the outset told the Bench that it cannot provide an exact timeline for conversion of the Union Territory (UT) of J&K into a State.Solicitor General (SG) Tushar Mehta subsequently highlighted the increased tourism footfall and investment coming into the region after the abrogation. The SG added that the Central government and the Election Commission were ready to conduct polls there.The CJI then made it clear, "We know these facts cannot be an answer to the constitutional question...The constitutional issue will be dealt only with the constitutional angle, and not on the basis of the policy decisions.".Attorney General (AG) R Venkataramani argued that in issuing the orders enabling the abrogation, the President was to follow a process that is close to a non-legislative function of the Constituent Assembly."The sequence has to be seen when the President is taking the call looking at what J&K has suffered and what have been the complications so far. When doctrine of impossibility stares one at their face, they are not paralysed to take action."The AG added that the determination of Article 370 must occur at some time, notwithstanding what happened in history."If that determination is in more than one way, then the assumption in larger interest has to be taken. President is not excluded from taking stock and that is inherently present in Article 370. Thus, it will be open for the President to take stock of all actions under Article 370, and the issues that loom large over the nation.".Senior Advocate Harish Salve, appearing for an intervenor in support of the abrogation, submitted the government could not act in a vacuum if there was a Constituent Assembly."While distribution in the fields of legislation was put as concurrence of the government of the State at the same time, sub-clause 3 uses the term recommendation."The CJI then said,"When a change in distribution of legislative power was concerned, concurrence was there. The provisions spoke of concurrence, except in the area covered by the Instrument of Accession. The exercise of the power under Article 370(3) brings complete abrogation of Article 370."Salve replied that the history of the provision indicates it is difficult to find logic in it, since much of it was part of a political compromise."Why was the Constituent Assembly even there? Just to assuage some ruffled feathers. One cannot search too much logic, as a matter of constitutional interpretation of such political provisions. This Court must give it the widest meaning possible.".Salve went on to point out that Article 370 (1)(d) does not require concurrence of the State government. This sub-clause states:"Such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify.""If you see 370(1)(b), it requires consultation. This dichotomy was built in," Salve said.The CJI remarked that subjects in the Instrument of Accession required consultation while those which were not in the Instrument of Accession required concurrence of the State government.Salve replied,"When it comes to the Instrument of Accession, the last word stays with the Union. Why there is dichotomy in the first and second proviso is something lordship has to reflect over...One cannot miss the significance of overlay of international law engrafted in Article 363 and that matters in Instrument of Accession...There is the underpinning of political compromise in Kashmir. They reserved the power in the President to disapply the provision in total, this is a unique provision."The CJI then posed the question,"Where the power to do something lesser in terms of constitutional impact is hedged in with restrictions, namely the power to make exceptions and modifications, can we subsume that the power to do something greater, which has a greater constitutional impact, namely the abrogation itself will be bereft of all limitations?" Salve contended that there was a compromise and that now the accession is complete. "It (J&K) is part of India and it is an Indian State. Now there is a political compromise and sub-clause 3 is to put an end to the political compromise.".The CJI then said that only if the President wanted to make any exception or modification concerning defence, security and foreign affairs, was consultation required.Salve pointed out that the petitions before the top court in the instant case were under Article 32 (enforcement of fundamental rights)."Should it extend or not extend to J&K? All such provisions have to be applied with adaptation. Sub-clause 3 is the answer of how it resulted in complete accession, reserving the right to the President the power to disapply this Article and for this there cannot be concurrence."Salve said the petitioners' repeated references to the basic structure were surprising."Constitutional amendments are tested with reference to basic structure doctrine and it is there in the limitations of Article 368. Law cannot be held to be violative of basic structure. It is only constitutional amendments. When a law is made to protect civil liberties, it is aligned with Article 21 and it is aligned with basic structure. In a spin of language, it can be said in furtherance of basic structure. Article 370 is part of the original pristine Constitution, and that conferred the power to disapply the (J&K) Constitution."He asked whether a change of permanence can be made when Article 356 is in place."When President's Rule is ongoing, it has two answers. This is no longer res integra. Everything in one sense is irreversible, what Parliament does is also irreversible.".CJI Chandrachud during the course of the hearing asked if the exercise of power under Article 370(3) is a constituent power by the President, to which Dwivedi replied,"That is how the power of judicial review has to be used." Justice Khanna then posed the question, "Can the mandatory power under Article 368 be taken to the level of constituent power?" Dwivedi responded that the President of India has a host of roles under the Indian Constitution that differ. "Framers of India also knew that the President of india is a continuing office. Article 370 had reached the time when it had to be buried, and now it has been done so, and thus the presidential orders needs to be upheld. Even if the Constituent Assembly recommends deletion of Part III (fundamental rights) for Jammu & Kashmir, is the President bound to follow it? As a constituent body, President has the right to say no.".The hearing will resume tomorrow, when the Central government and intervenors in support of the abrogation are expected to conclude..Read our coverage of Day 1 of the hearing here and here.Read our coverage of Day 2 of the hearing here and here.Read our coverage of Day 3 of the hearing here and here.Read our coverage of Day 4 of the hearing here and here.Read our coverage of Day 5 of the hearing here and here.Read our coverage of Day 6 of the hearing here and here.Read our coverage of Day 7 of the hearing here and here.Read our coverage of Day 8 of the hearing here and here.Read our coverage of Day 9 of the hearing here and here.Read our coverage of Day 10 of the hearing here and here.Read our coverage of Day 11 of the hearing here and here.Read our coverage of Day 12 of the hearing here and here.[Follow our live-coverage of today's hearing]