Article 370: Internal sovereignty of Jammu & Kashmir shared between Union and State governments, Supreme Court says

While the domain of external sovereignty of India lies exclusively with the Central government, that of internal sovereignty is shared with the respective State governments, the Supreme Court orally observed on Monday during the hearing in the Article 370 case. [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 were hearing arguments of Senior Counsel Mahesh Jethmalani for one of the intervenors supporting the move to abrogate Article 370 of the Constitution..Jethmalani stated that political sovereignty rests with the Union government. .The CJI responded by asking whether Jethmalani then agreed that there was a demarcation between internal and external sovereignty."So you agree, Mr Jethmalani, that there is a clear concept of external and internal sovereignty. External lies clearly with the Union and the internal is shared between the Union and the State," the CJI said. The Senior Advocate replied by saying that since the ultimate legal sovereignty rested with the Union government, Article 370 could have been got rid of by means of its proviso (3)."It has to be kept in mind that a legislature exercising its power to amend or pass a law - (that) is a discharge of constituent power, and is not (it) becoming a constituent assembly", the CJI then said..Monday marked the 15th day of the final 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.Notably, the bench yesterday also asked Lok Sabha Member of Parliament, Akbar Lone, one of the petitioners in the case, to swear his allegiance to the Constitution of India. Further, he was asked to state that Jammu and Kashmir is an integral part of the Union of India..In the first session of yesterday's hearing, the bench heard the counsel for intervenors supporting the abrogation, as well as the Central government.Senior Advocate V Giri began by submitting that if the abrogation of Article 370 were undone, then the federal working structure of the Constitution would 'meet more obstacles', in violation of the basic structure doctrine. "Then it would mean that the original Article 370 abrogation would also be violation of the basic structure. You cannot make us hold in your favour in a provision which cannot be stated", the CJI replied.Additional Solicitor General KM Nataraj, appearing for the Union government, said that Article 370 is the only provision in the Constitution that has a self-destruction mechanism but did not confer any kind of rights."This article has a flavour of constituent, legislative and executive power. When plenary power is entrusted on the President, it should not be read with any kind of restrictions. Such extraordinary power need not be read with any kind of restrictions. It should be given fullest meaning and applied without any restrictions", ASG Nataraj argued. Justice Gavai asked if one can ignore the provisos to the Article that put a limitation on how it can be repealed. The ASG replied that the same cannot be equated with the procedure to be followed in Article 368 (dealing with the procedure to amend the Constitution).Senior Advocate S Guru Krishnakumar said that examining the rights perspective in this matter will trump all allegations of procedural infirmities. "They are saying asymmetric federalism is recognised and now stretch it.. Today, they want to equate Article 370 with Article 371 which is a special provision. The impugned COs are a reflection of transformative constitutionalism. Challenge of petitioner is contradictory in terms; the effect of the CO is that the whole constitution applies to the State. This change is for perpetuation of vested rights", the senior counsel added..Article 370 case: Scrapped Article 35A took away 3 fundamental rights of non-residents of J&K, says Supreme Court.Advocate Kanu Agrawal, in the context of federalism, stressed that every constitutional fact cannot be elevated to the status of the basic structure doctrine. "Derivative Constituent power is always with the further legislature, such as Parliament in this case, and we have to see whether the constituent assembly of J&K had any original constituent power. Method and methodology under Article 367 has been taken care of ... J&K constituent assembly did not have any original constituent power - it was established under the proclamation of a Maharaja ... The contention is under 370(3) they could have severed their ties with India, I submit that is an impossibility."ASG Vikramjit Banerjee said that Article 370 is a transitional and temporary provision..Advocate Archana Pathak Dave submitted that the petitioners could not, in an Article 32 petition, take away the fundamental rights of citizens.Advocate Genera of Jammu and Kashmir, DC Raina said that Article 370 had not allowed benefits under Article 21 to flow into Jammu and Kashmir.A counsel representing the organisation, Youth 4 Panun Kashmir said that the move ensured economic integration of Jammu and Kashmir with the rest of the country."Till 2016, even transfer petitions could not be filed before this Court; we had to come under Article 32," he pointed out..Senior Advocate Kapil Sibal began his rejoinder submissions for petitioner Akbar Lone in the post-lunch session of yesterday's hearing. "We cannot make this case into an emotive majoritarian interpretation of the Constitution. If you look at the history, J&K was not linked to the rest of India. Jammu and Kashmir has a detailed Constitution, which has an administrative structure and the executive structure. J&K was never asked to sign a merger agreement", he said. The CJI then pointed out that everybody who signed an instrument of accession did not sign the merger agreement..Sibal stressed that the State government's recommendation for any abrogation of Article 370 was important and must.The CJI then said,"The Constitution does not tell us what would happen after J&K Constitution comes into force. There is no express provision, it was always like allow Article 370 to operate, let the process of integration get over and then concurrence and consultation happens. But at what time integration is over is not hedged in the Constitution of India. Silences in 370 left it to the wise act of both the sides of J&K and the Union of India."..The CJI also asked if Article 370 lay above the basic structure of the Indian Constitution, a contention that Sibal refuted."So you are saying power to amend the article lies in the Article itself, and so we are dealing with a provision, which perhaps lies even higher than the basic structure doctrine?" the CJI rephrased and asked.Sibal said the petitioners have not made any argument to that effect. He then said that a political process must have a political solution. To this, the CJI replied,"You are saying there is no solution to Kashmir within the Constitution and that it is a political one, but all solutions have to be within the framework of the Constitution."Justice Kaul then weighed, in saying, "You are saying Article 370(3) does not exist, but the Centre says 370(3) exists and it has been taken away by them. That is the crux.".The hearing will continue on Tuesday..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.Read our coverage of Day 13 of the hearing here and here.Read our coverage of Day 14 of the hearing here and here..[Follow our live-coverage of Monday's hearing]