Article 370 was a stopgap measure: Centre to SC
Many petitions have also challenged the Jammu and Kashmir State Reorganisation Act, by which the state was bifurcated into two Union territories.
Article 370 was not an embodiment of any special status to Jammu and Kashmir but was “only a stopgap arrangement” in the process of its “complete integration” with the Union of India, the Centre has submitted in the Supreme Court, adding that the Instrument of Accession, signed in October 1947 by Maharaja Hari Singh of the erstwhile princely state to accede with the Dominion of India, was purely a political act “without any justiciable or legally enforceable commitments”.
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As a Constitution bench led by Chief Justice of India Dhananjaya Y Chandrachud commenced its extensive hearing on Wednesday to decide the validity of the Centre’s decision to nullify Article 370, the written submissions of attorney general R Venkataramani and solicitor general Tushar Mehta defended the August 2019 abrogation, emphasising that Article 370 was always understood as a temporary provision.
The bench, which also comprised justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, was told by the Centre that Article 370 “existed merely to temporarily manage the situation and ensure that a wider time frame is provided to complete this process of further integration and uniformity qua Jammu and Kashmir.”
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Any interference by the Supreme Court to restore the pre-August 2019 position will not only be opposed to public and national interest and the well-being of J&K, but will also lay the doors open for political, social, and economic uncertainties in the region, the Centre added in its submissions through the law officers.
Commencing the arguments on behalf of the petitioners who have challenged the abrogation, senior counsel Kapil Sibal on Monday laid emphasis on the October 1947 Instrument of Accession that the Maharaja signed with the Indian government before agreeing to accede to the Dominion of India.
Sibal stressed the fact that this agreement limited India’s powers over the Valley to the matters of defence, communications, and foreign affairs, adding that the Instrument did not commit the Maharaja to the acceptance of any future Constitution of India and maintained that sovereignty over subjects not acceded to India would continue vesting in him. This agreement, Sibal said, prescribed that the Union Parliament will have jurisdiction to make laws for J&K only on matters specified either in the Instrument or by later additions with the concurrence of the state government.
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Interestingly, Sibal said that Article 370 became a “permanent” provision in the Indian Constitution after January 26, 1957, when the Constituent assembly of J&K, formed for formulating the Constitution of J&K, ceased to exist. He referred to Article 370 (3) which said that it was only with the concurrence of J&K’s Constituent assembly that Article 370 could be abrogated by a presidential order.
“Since the Constituent assembly ceased to exist in 1957, Article 370 has become a permanent provision. It has been referred as a ‘temporary’ provision under the Indian Constitution not because it was meant to be transient but only because it was supposed to be temporary until the Constituent assembly of J&K existed,” said the senior lawyer, who was appearing for National Conference leader Akbar Lone.
Sibal’s arguments generated intrigue among the judges on the bench, who repeatedly asked him if his argument was that the constitutional provision on abrogation of Article 370 (Clause 3) has become redundant after 1957 just because J&K’s Constituent assembly ceased to exist in that year and further that there is no other provision in the Constitution that could end Article 370.
While Sibal answered in affirmative, the bench asked him: “How can that be? Article 370(3) still survives. That’s a substantive provision whereas the proviso talking about J&K’s Constituent assembly is a limitation to the exercise of that power. As we understand, your submission is that Article 370 was temporary between 1951 and 1957 when the Constituent assembly existed, and it then became permanent. Also, a sequitur of your submission would be that even the legislative assembly of J&K could not abrogate Article 370 since it could be done only with the concurrence of the Constituent assembly,” the bench asked Sibal.
It further pointed out that Article 370 finds place under Chapter XXI of the Indian Constitution where temporary, transitional and special provisions are separately mentions.
“Can it now be said that it is a permanent provision after the conclusion of the Constituent assembly when it was never intended to be a permanent provision by the Constitution?” it asked Sibal, who maintained that his position was that Article 370 was an inalienable part of the Constitution after 1957.
The court will continue hearing the case on Thursday.
In its submissions through the A-G and S-G, the Centre underscored that even while defining a separate status, which was temporarily available for the erstwhile State of J&K, it was clear that the coming into force of the Indian Constitution would have certain drastic consequences, including blotting out all vestiges of localized sovereignties in the territories of India and formation of a new sovereign.
“Article 370, in its previous form, existed merely to temporarily manage the situation and ensure that a wider time frame is provided to complete this process of further integration and uniformity qua J&K. The transitory/temporary provisions under Article 370 were framed with limited purpose, having a limited life and were to be kept on the books till the constitutional parity with other units of the Union of India is decided to be achieved,” said the Centre.
It added Article 370 was, therefore, not an embodiment of any special status to J&K rather, only a stop gap arrangement in order to achieve what had been completed for other states by 1950 itself.
“The complete integration and uniformity remained incomplete for the erstwhile State of J&K.. It was observed over the years that the existing regime under Article 370, and the exceptions/modifications carried out to other provisions of the Constitution of India by Presidential Orders were impeding, rather than enabling or facilitating, the full integration of the State of J&K with the rest of the country, which was neither in the national interest nor in the interest of the erstwhile State of J&K,” maintained the Centre.
The annulment of Article 370 and division of the state into two Union territories, it said, were the last steps in this process of integration and uniformity and also which brought an end to the only surviving relic of blatant disparity among various federal units of the Union of India, depriving J&K residents of their fundamental rights and all beneficial legislations.
A raft of petitions, filed by parliamentarians from the National Conference party, Kashmiri citizens, former bureaucrats and various organisations laid the challenge to the abrogation of Article 370 soon after the presidential order in August 2019.
While some petitioners brought up the requirement of consent from the constituent assembly for abrogation of Article 370, others questioned the validity of the President’s rule that was in effect when the abrogation was made. A few of these pleas went back to the Instrument of Accession, while some highlighted the Supreme Court’s ruling of 2018 that observed that Article 370 had gained a status of permanence.
Many petitions have also challenged the Jammu and Kashmir State Reorganisation Act, by which the state was bifurcated into two Union territories with effect from October 30, 2019.
On August 28, 2019, the Supreme Court issued notices on the pleas despite resistance from the central government, which argued that Article 370 had international and cross-border implications.
On July 3, the Supreme Court notified the setting up of a new Constitution bench, comprising its first five judges. A week later, the new bench directed that day-to-day hearing in the case would begin from August 2.
On July 11, the Constitution bench also recorded a statement by the Union government that it will not rely upon the contents of an affidavit filed on July 10 to bring on record the scenario in Jammu & Kashmir since the move, as it observed that the nullification of Article 370 is a “pure question of constitutional validity”.
The July 10 affidavit by the Centre stated that the August 5-6, 2019 decision led to “unprecedented development, progress, security and stability” in J&K, adding that “life has returned to normalcy in the region after three decades of turmoil”. It further said that the nullification has resulted in the dismantling of the terror network, and incidents of stone pelting and street violence have “now become a thing of the past” in J&K where all the provisions of the Constitution and central laws now apply uniformly.