Petitioner arguments summary Article 370
Jammu and Kashmir (J&K) had a unique relationship with India regarding its place in the
Indian Constitution. This uniqueness stems from the history of J&K's accession to India and
the formation of its constitution.
When J&K joined India, it didn't give up its internal sovereignty, which means it retained the
power to make its laws on most matters. This was because the Maharaja of J&K, the ruler at
the time, did not officially sign an agreement to merge with India. Instead, he only agreed to
let India handle foreign affairs, communication, and defence. Everything else, like making
laws on various issues, remained under the control of J&K.
This retained power of J&K was eventually incorporated into Article 370 of the Indian
Constitution. Article 370 gave J&K a special status and allowed it to keep its constitutional
autonomy, meaning it could make its laws on many matters. This article played a significant
role in shaping J&K's relationship with the rest of India.
The constitutions of India and Jammu and Kashmir were closely connected, like two pieces
of a puzzle fitting together. Senior Advocate Gopal Subramanium explained that they worked
together to define the relationship between India and J&K. He also pointed out that there
were two separate groups responsible for making these constitutions - one for India and
another for J&K. Article 370 was like a bridge connecting J&K to India. If it were removed,
it would be like taking away that bridge.
Some lawyers argued that Article 370, initially labelled as 'temporary,' had become a
permanent part of the Constitution. They explained that it was called 'temporary' because, at
the time when the Indian Constitution was enacted, Jammu and Kashmir's own Constituent
Assembly didn't exist. It was expected that this Assembly would decide the fate of Article
370.
However, when the J&K Constituent Assembly was eventually formed, it didn't recommend
removing Article 370. Instead, it continued to be a part of the Constitution. So, according to
these arguments, Article 370 became permanent because the Assembly had the chance to
remove it but chose not to.
In simple terms, once the J&K Constituent Assembly disbanded without abolishing Article
370, it became a permanent feature of the Indian Constitution.
Senior Advocate Zaffar Shah argued that the history of Jammu and Kashmir supported the
idea of protecting the rights of its permanent residents. He explained that this protection
began with a notification in 1927.
Back then, the region's King would bring in people from other parts of the country, like
Punjab, for jobs, leaving the local permanent residents needing employment opportunities.
This created unrest, so 1927, a notification was issued to limit job appointments to permanent
residents only.
Shah believed this restriction was essential to maintain the stability and integrity of the
region.
Senior Advocate Rakesh Dwivedi argued that Article 370 stopped being in effect once the
Constitution of Jammu and Kashmir was created in 1957. This means that all the powers
related to Article 370, including the ability to remove it, ceased to exist when J&K had its
constitution. He referred to Article 370 as a temporary arrangement, and the final decision
about the relationship between J&K and the rest of India was supposed to be decided by the
Constituent Assembly.
Regarding the procedure followed by the Indian government, it's essential to know that
Article 370 could only be changed if the J&K Constituent Assembly recommended it, but that
Assembly dissolved in 1957. To address this, the 2019 CO 272 order added a clause to Article
367, which essentially said that the term 'Constituent Assembly of the State' in Article 370
should now be understood as the 'Legislative Assembly of the State.' Since there was no
legislative assembly in J&K due to its dissolution and the state was under Presidential rule,
the recommendation of the Indian Parliament was considered equivalent to the request of the
legislative assembly.
Critics argue that a Constituent Assembly is a body that creates a constitution without many
limitations. At the same time, the people elect a legislative assembly and operate within the
constraints of an existing form. Therefore, they contended that the Indian Parliament, within
the current constitutional framework, couldn't transform itself into a Constituent Assembly.
The petitioners argued that getting the State of J&K's agreement was necessary to pass the
2019 Presidential Orders. They pointed out that all previous Constitution Orders that applied
Indian Constitution provisions to J&K were done with the state's agreement. They also
emphasised that Article 370 required the state government to be advised by the council of
ministers. When no council of ministers was in place, the Governor's approval breached this
obligation under Article 31 of the J&K Constitution. "Concurrence" meant both parties had to
agree.
They also stressed that Article 356, which allows the imposition of President's Rule in a state,
had been misused in J&K. This provision was meant to restore state machinery, not destroy it.
Moreover, the President's Rule was temporary, and permanent actions shouldn't be taken
under it. Article 356 allowed the Union to perform the state government's functions, not its
powers. However, Article 370 granted the state government powers, not just parts.
The petitioners argued that amending Article 370 through Article 367 was invalid. The 2019
Orders amended Article 367 to reinterpret terms under Article 370. They said this undermined
the bilateral nature of Article 370(1) and allowed the central government to do what couldn't
be done directly or indirectly.
They also raised concerns that Article 367 could be misused to change the meaning of words
in the Constitution, potentially impacting fundamental rights. They argued that substantive
amendments should follow the process under Article 368, which requires the approval of a
majority of state assemblies.
To dissolve Article 370, they argued that the proper procedure was to amend the Indian
Constitution and then repeal Article 370 through Article 368, as Article 370(1) was an
executive power and could only be amended through Article 368.
On Indian Constitutional Ethos:
1. Asymmetric Federalism & Dual Polity: The petitioners argued that India's federal system
acknowledges diversity and unique conditions in different states. They said the Indian
Constitution respects these differences and is a fundamental part of our system. Removing
this would negate the need for such a comprehensive Constitution.
2. Conversion of State into Union Territory Impermissible: They also argued that while
Article 3 of the Indian Constitution allows the Union to change state boundaries, it had never
been used to turn an entire state into a Union Territory. They believed this goes against the
essence of representative democracy because it means that the Parliament alone decides for
the region without considering the state's views.
3. Impact on Constitutional Structure: The change to Jammu and Kashmir's status had various
effects, including the lack of representation in the Rajya Sabha, changes in Lok Sabha
representation, no say in the election of the President, no representation in the GST council,
and more. These changes altered the constitutional balance.
4. Indian Constitutional Interpretation: The petitioners emphasised that the Court's
interpretation of the Constitution should be broad and transformative, considering the
founders' intentions, especially in a diverse and complex country like India.
On Political Agenda:
1. Abuse of Power by Union: They argued that the ruling party used its constitutional powers
for political purposes, citing the abrupt withdrawal of support from the local government in
J&K as an example of an abuse of power.
2. 2019 BJP Election Manifesto Illegal: The petitioners also pointed out that the BJP's
election manifesto promised to abrogate Article 370 if they were elected. They argued that
such promises in election manifestos should align with the Constitution, and using such
securities showed the exercise of power for political reasons.
3. Integration Not a Measure of Control: One advocate challenged that Article 370 was
temporary and a step towards greater integration. She argued that integration wasn't just about
central control but a complex process beyond administration.
4. Swift Dissolution of House by Governor Shows Mal Intent: There were concerns about the
governor's quick dissolution of the state assembly, which raised questions about the
democratic principles and motivations behind the decision. The dissolution happened within
30 minutes of political parties expressing readiness to form a government, which seemed
hasty and possibly without a reasonable basis. The Governor's prior knowledge of the
Centre's decisions was also questioned.
In summary, the arguments revolve around preserving the unique federal structure of India,
ensuring that political agendas align with the Constitution, and questioning the motives and
processes behind the changes in Jammu and Kashmir's status.
