The Submissions of Petitioners’ Side in Article 370 Case

Submissions of the petitioners

• The Governor’s Proclamation under Section 92 of the Constitution of Jammu and Kashmir dated 20 June 2018 is challenged as being void. The mandatory pre-condition of the satisfaction of the Governor that the State government cannot be carried out in accordance with the provisions of the Constitution, was not fulfilled.

• It was a political act, in violation of the Constitution, brought about with the intention to ultimately abrogate Article 370. Governor’s rule was imposed on 20 June 2018, a day after the Bharatiya Janata Party withdrew from the coalition on 19 June 2019. No opportunity was afforded to the other parties to demonstrate strength in the house. Other parties – the Congress, the PDP and the National Conference – had, in a fax to the Governor expressed willingness to form a coalition.

• It was incumbent upon the Governor to reach out to the parties and explore the possibilities of forming a government. Section 92 of the Jammu and Kashmir Constitution envisages a mandatory maximum period of six months of Governor’s rule, which cannot be extended any further. Successive imposition of the President’s rule after Governor’s rule defeats the scheme of Section 92 and amounts to a fraud on the Jammu and Kashmir Constitution and the Indian Constitution.

• The manner in which the Union Government has acted and the decisions of the Governor and the President were all political stratagems to achieve outcomes that are unconstitutional.

• The President’s Proclamation under Article 356 dated 19th December 2018 is void ab initio for the following reasons:

a. After the Proclamation under Section 92, the Proclamation under Article 356 was issued by the President. This was also without basis as the report of the Governor showing the failure of constitutional machinery was not placed before Parliament. The debates in the Lok Sabha and the Rajya Sabha show that the motion approving the Proclamation was passed without debate and without the Governor’s report; and

b. A unilateral exercise of the powers under Article 356 sets a dangerous precedent and raises the apprehension that such a treatment can be extended to any other state of the country in the exercise of emergency powers under the Constitution. It renders the federal structure susceptible to the whims of the political party in power. It can also be used to undermine the special provisions under the Constitution designated for the special interests of the North-Eastern States of India.

• The impugned actions taken when the Proclamation issued under Article 356 was in force are void. There are limits on the exercise of power by the President after the issuance of a Proclamation for the following reasons:

a. Once the Legislative Assembly of the State is dissolved, as was the case in the state, after the Proclamation of Governor’s rule, there was no occasion for the President to exercise the power under Article 356. This renders the Proclamation dated 19 December 2018 and all consequential actions – the impugned COs and suspension of the second proviso to Article 3 applicable to the State of Jammu and Kashmir void ab initio;

b. The purpose of Article 356 is to restore governance in the State. Article 356 is housed in Part XVIII of the Constitution of India- which deals with ‘Emergency provisions’. The President must be satisfied that the government cannot be carried out in accordance with “this Constitution”. The emphasis on “this” indicates the nature of the power. The object of the exercise is to ensure that constitutional government is possible in the state;

c. Article 357(2) stipulates that the laws made by the President or the Parliament, in the exercise of the power of the state legislature, shall continue, after the Proclamation has ceased to operate, until altered or repealed or amended “by a competent Legislature or other authority.” These words presume the power of the restored legislature to alter or undo the changes made by the Union in respect of the State’s affairs. Article 357(2) allows the subsequent State Legislature to alter or repeal any laws made by the Parliament in the exercise of such powers.

Thus, the Parliament cannot make irreversible changes in the exercise of this temporary power during the Proclamation under Article 356. Dr. BR Ambedkar clarified that the purpose of the power under Articles 356 and 357 was to ensure that the “form of constitution” was maintained;

d. Article 250(2) states that laws shall cease to have effect after six months from the date when the Proclamation ceases to operate. Considering the restorative purpose and the temporary nature of the power, the President could not have, in the exercise of this power effected a permanent change to the Constitution by way of the impugned actions;

e. In accordance with Article 356(1), the power of the Legislature and the Executive of the State are transferred to the Parliament and the President respectively. However, Article 356 does not envisage a transfer of the constituent power to the President or to Parliament. Constituent power cannot be transferred unless the Constitution of Jammu and Kashmir specifically provides for it.

The President does not acquire the power of the State Government under Article 370(1)(d), to give concurrence, and Parliament does not acquire the constituent powers of the Legislative Assembly to recommend a Presidential notification under Article 370(3);

The will of the people finds no expression in the purported concurrence of the State Government, essentially the Governor, since there was no Council of Ministers in place. Thus, the COs are undemocratic for want of public will and public reason.

Interpretation of Article 370

• Article 370 must be interpreted keeping in mind the following principles:

a. Article 370 must be interpreted in the context of three pillars namely asymmetric federalism, autonomy, and consent. Asymmetrical federalism that is differential rights to certain federal sub-units is a part of the Indian federal scheme. It is a part of the basic structure, as is federalism;

b. Article 370 reflects the agreement between two contracting parties namely the acceding State of Jammu and Kashmir and the Dominion of India, under which the Constituent Assembly of Jammu and Kashmir was given the power to finally determine the state’s affiliation to the Union and its limits. Once this relationship was crystallised by the Constitution of the State, there was no scope of change, since the Constituent Assembly, solely empowered to change the relationship, ceased to exist; and

c. Article 370 recognized the constituent power of the people of the State of Jammu and Kashmir articulated through the Constituent Assembly of Jammu and Kashmir or otherwise, to make or remake the Constitution of the state, subject to Article 1 of the Constitution of India.

The placement of Article 370

• The marginal note to Article 370 and the placement of the provision in Part XXI of the Constitution cannot be used to hold that the provision is temporary for the following reasons:

a. Since the Maharaja or his successors did not sign a merger agreement with the Union of India, the State retained residual sovereignty and Article 370 was incorporated in the Indian Constitution as a recognition of the same. The reason for placing Article 370 in Part XXI of the Constitution of India was that the Constituent Assembly of India assumed that as and when the Constituent Assembly of the State will be established, it would recommend the abrogation of Article 370, and thereby fully integrate the state into the Union.

It cannot be said that by reason of being placed in Chapter XXI of the Constitution of India, Article 370 could have been abrogated at any time by the President. This is apparent also from the fact that the provision was kept out of the purview of Article 368 of the Constitution, and a mechanism for its abrogation was provided in Article 370(3).

Thus, it was temporary only insofar as the Constituent Assembly was not in place at the time of its incorporation into the Indian Constitution. It was a permanent provision of the Indian Constitution notwithstanding its placement in Chapter XXI of the Constitution and the state was to be governed by two Constitutions; and

b. The word ‘temporary’ in the marginal note, does not refer to the limited duration of time, after which the Article would cease to exist. It implies that unless the specific conditions of its repeal, that is, convening of the Constituent Assembly of the State of Jammu and Kashmir cannot be secured, the Article will continue to operate irrespective of the duration of time.

• Upon the enactment of the Constitution of Jammu and Kashmir, the Constituent Assembly became functus officio and as such, Article 370 became permanent. Absent the recommendation of the Constituent Assembly, Article 370 could not be amended and the Legislative Assembly could not substitute the Constituent Assembly.

• Article 370 could only have been repealed by the Constituent Assembly between 1950 and1957. After that, that is after the Constituent Assembly of the State ceased to exist, it can only be amended by way of the procedure specified under Article 368, followed by its extension to the State of Jammu and Kashmir by Article 370(1)(d).

After the enactment of the Constitution of Jammu and Kashmir and the consequent cessation of the Constituent Assembly of the State, Article 370(1) alone survives since the only mechanism of its repeal i.e. Article 370(3) could not be resorted to, without the recommendation of the Constituent Assembly. As such, the dual constitutional arrangement between the State and the Union attained finality.

Sovereignty

• Unlike the other States, the State of Jammu and Kashmir retained a part of the sovereignty even while acceding to the Dominion of India:

a. There was no merger agreement between the Dominion of India and the State of Jammu and Kashmir, unlike other states. The terms of their relationship were defined in the Instrument of Accession whereby though certain matters were acceded to the Union; residual sovereignty was retained by the Maharaja in accordance with Clause 8 of the Instrument;

b. The very recognition of a separate Constituent Assembly for a state by the Constitution of India indicates that the Constitution of Jammu and Kashmir which was the creation of a sovereign body, represented the sovereignty of the state of Jammu and Kashmir. Once the Constituent Assembly ceased to exist, the sovereignty was transferred to the Constitution. This sovereignty is recognised by Article 370(3);

c. The Constitution of the state and the Legislative Assembly of the State created by the Constitution, are permanent. The Constitution of Jammu and Kashmir is an independent, perpetual document. Since it was not created by the Constituent Assembly, it was neither subordinate to the Constitution of India, nor to Article 370. It cannot be substituted or repealed by an act of the Union Government.

CO 272 issued under Article 370(1)(d) is unconstitutional

CO 272 is unconstitutional because the President could not have secured his own concurrence to fulfil the second proviso to Article 370(1)(d):

a. CO 272 has been issued purportedly with the concurrence of the State Government. However, since the Legislative Assembly of the State of Jammu and Kashmir was dissolved by the Governor when CO 272 was issued, the Council of Ministers was not in place and no such concurrence could have been sought.

The Governor was not acting on the aid and advice of the Council of Ministers. This is not only against the mandate of the Governor’s powers under the Constitution of India, but also, does not fulfil the concurrence requirement under the second proviso to Article 370(1)(d);

b. The President usurped the power of the State Government. The provisos to Article 370(1)(d) distinguish between matters specified and not specified in the IoA (Instrument of Accession). Article 370(1) begins with a non-obstante clause. Therefore, notwithstanding any other provisions of the Constitution of India, including Article 356, the President has the power to extend the application of certain provisions to the State of Jammu and Kashmir. This power is subject to the second proviso.

Notably, Article 356 does not contain any non-obstante clause. Impliedly, considering the importance of non-obstante clauses, the concurrence can only be given by the State Government and not the President. The State Government was not in existence at the time CO 272 was issued. Absent such concurrence as required by the second proviso, CO 272 could not have been issued72; and

c. Without prejudice to the above, even if the State Government’s functions could be validly exercised by the President according to Article 356, Article 356(1)(a) permits the President to exercise the “functions” and not the “privileges” of the State Government. To concur with the President in accordance with Article 370(1)(d) is a privilege and not a function and thus could not have been exercised by the President, even under Article 356.

CO 273 is unconstitutional

CO 273 dated 6 August 2019 is unconstitutional for the following reasons:

a. CO 273 states that the President, on the recommendations of the Parliament, had declared that all the clauses of Article 370 have ceased to be operative, except a clause that effectively applies the Constitution of India mutatis mutandis to the State of Jammu and Kashmir;

b. Consequent to the invalidity of CO 272, CO 273 is void ab initio for the same reasons as stated above in respect of CO 272;

c. CO 273 was issued in exercise of power under Article 370(3). However, there was no “recommendation” from a representative body competent to issue such a recommendation under the proviso to Article 370(3). Since the recommendation of the Constituent Assembly is mandatory under the proviso to Article 370(3), and no such recommendation could have been obtained in view of the non-existence of the Constituent Assembly at the relevant time, CO 273 is ultra vires Article 370(3).

The proviso to Article 370(3) was included to give power to the people of the State to decide whether they wanted to integrate with India;

d. The Constituent Assembly of Jammu and Kashmir was the sole authority to determine whether Article 370 ought to continue to exist. After its dissolution, no such determination could have been made. The Constituent Assembly had already expressed its desire to not abrogate the special status of Jammu and Kashmir. Therefore, the President had no power to act contrary to the desire of the Constituent Assembly. The intention was to make it a temporary power exercisable only by the Constituent Assembly, and (without prejudice), by the people of the State to abrogate Article 37079;

e. Even assuming CO 272 was valid to the extent that it substituted the Constituent Assembly with the Legislative Assembly, even then the requirement of recommendation was not satisfied since CO 273 was issued at a time when the Proclamation under Article 356 was in force and the Legislative Assembly was not in existence;

f. Unlike other states which acceded to the Constitution of India, the State of Jammu and Kashmir had a separate Constitution and had not merged with the Union. It had acceded to India only on the terms agreed to by way of the IoA. CO 273 has invalidated the IoA;

g. CO 273 (along with CO 272) amounts to the destruction of the basis of Article 370 by a unilaterally reneging by the Union of India, of the compact made with the people of Jammu and Kashmir.

The Reorganization Act is unconstitutional

The Reorganization Act is unconstitutional for the following reasons:

a. The Presidential Proclamation issued under Article 356 suspended the first proviso to Article 3 of the Constitution to the extent that it relates to the reference by the President to the Legislature of the state for its views and the whole of the Second proviso to Article 3 as it applies to the State of Jammu and Kashmir by which a Bill under Article 3 could be initiated only with the consent of the Legislature of the State.

A law which brings permanent changes cannot be brought into force by temporarily suspending the provisos to Article 3. Since the Proclamation under Article 356 itself was void (for reasons mentioned above), the suspension of Article 3 was similarly void. Even otherwise, the suspension of the provisos to Article 3 was neither an incidental nor consequential exercise of powers under Article 356(1).

It was beyond the President’s power conferred under Article 356(1)(c), which cannot be to abrogate the State itself. The Reorganisation Act is not a law which the Parliament would be competent to make under Article 357(1) and Article 356;

b. The suspension of the proviso to Article 3 prescribing a mandatory reference to the State Legislature by the President had the effect of suspending the will of the people, protected under the proviso. The purpose of the proviso is the mandatory ascertainment of the will of the people, before changing the boundary, name or area of the state. The President was thus required to ensure that their “wishes have been consulted”, and that, only at the instance of the state legislature, such a change could be effected;

c. In any case, even if the second proviso to Article 3 was validly suspended, it was merely an acknowledgment of the territorial integrity of the State of Jammu and Kashmir and not the source of it. The territorial integrity of the state of Jammu and Kashmir and its continued existence is dehors the second proviso to Article 3.

The territorial integrity of the State of Jammu and Kashmir stems from the Constitution of Jammu and Kashmir, and was permanent, sovereign, and recognized by the Constitution of India. The proviso to Article 3 was merely a formal recognition of the territorial integrity;

d. The Reorganisation Act has bypassed the mandatory procedures and safeguards under Article 368 by resorting to Article 3. When there is a particular course of action under particular provisions, it cannot be bypassed by recourse to a general provision that does not directly deal with the subject matter.

Article 4 states that the laws referred to in Articles 2 or 3 shall contain provisions for amending the first and the fourth schedule, as may be necessary to give effect to the provisions of the law and may contain supplemental, incidental or consequential provisions, as the Parliament may deem fit. However, Article 4(2) states that no such law shall be deemed to be an amendment of the Constitution for the purpose of Article 368. Article 4(2) implies that Article 3 cannot be used to supplant Article 368, which is a specific provision in respect of constitutional amendments. The Reorganisation Act violates Article 3;

e. The text and the structure of Article 3 do not support the degradation of a state into a Union Territory. There is no categorical power to degrade a state into a Union Territory and consistent state practice indicates movement in the direction of greater federal self-governance, rather than less. Sub-clauses (b) to (e) of Article 3 deal with areas, boundaries, and names; sub-clause (a) read with Explanation 2 sets out the broader power to form a new state or Union Territory.

There are a number of ways in which this is permissible and none of them entail the degradation of a state into a Union Territory. Article 3 has to be read in a manner that is consistent with the principles of federalism. It cannot be invoked in order to fulfil the political objectives of the party in power at the Centre;

f. The 2019 Act is unrelated to the nature of powers prescribed by Article 3 of the Constitution. Article 3 does not deal with the reorganization of a State into a Union Territory. Unlike the other elements of Article 3 (clauses a-e), the reorganization of a state into Union Territories involves a drastic transfer of legislative and executive power. The Constituent Assembly would have not intended that such a transfer be affected by Parliamentary legislation90;

g. The Reorganisation Act has the effect of bringing the following changes:

Article 73 of the Constitution of India on the State, erasing the executive powers under Article 162; depriving the entire territory of Ladakh of its rights under Article 54 and 55, altering the representation of the territory in the Council of States; excluding the territory from the electoral college of the Rajya Sabha – all of these changes fall squarely under the clauses (a) to (e) of the proviso to Article 368 (2).

Thus, these changes could have been affected only by recourse to Article 368(2), subject to procedural safeguards such as ratification by states. A law that, inter alia, denudes the state of its legislative assembly such as the impugned Act cannot be brought under Article 392;

h. There is a qualitative difference between the reduction of a state into a Union Territory as opposed to the situations envisaged in Article 3 – each of the sub-clauses of Article 3 refers to a situation where as a result of a law, citizens may find themselves living in an existing or a new state. The federal representative democracy enjoyed by the citizens under these provisions is either constant or enhanced. As opposed to this, the degradation of a State into a Union Territory causes a diminishment or a loss of representative democracy;

i. The purpose of Article 3 must be read in accordance with the State Reorganisation Report 1955. The Report suggested that the demarcation of Indian States into Part A, B, C and D states was not feasible. Thus, the Constitution (Seventh Amendment) Act 1956 removed these distinctions and introduced the concept of Union Territories. From 1955 onwards, through various legislations under Article 3 the present states of Goa, Himachal Pradesh, Manipur etc. were converted from Union Territories to States;

j. There were historical and cultural reasons to designate certain territories as Union Territories and not full-fledged states. In certain cases, it was not deemed reasonable to create a full-fledged state for a small area, and the cultural differences of the people in these territories meant that they could not be subsumed in the neighbouring states. Such territories were considered fit to be centrally administered. However, in due course of time, these territories came to be designated as states – which was a progressive step towards federalism.

However, in the history of Independent India, an existing state has never been retrograded into a Union Territory. This leads to a diminishment of representative democracy and federalism. The Indian understanding of federalism is not to treat states as mere administrative units. The adage that India is an “indestructible union of destructible states” only means that the states can be reorganized by the Parliament; but they cannot be extinguished or retrograded into the Union Territories, in violation of the federal structure; and

k. Article 1(1) states that India, that is Bharat, shall be a Union of States. The power under Article 3 cannot be used by Parliament to create a ‘Union of Union Territories’. The issue is not whether Parliament would in fact do that. The power of the Union under Article 3 thus clashes with the principle of federalism.

The Reorganisation Act did not represent the people of Jammu and Kashmir because:

a. Any alteration to the existing units, their territories, boundaries, and names should come not from the Centre but from the people familiar with the unit concerned. The people affected by the alteration should desire such an alteration. The Centre which is not aware of the local conditions and relevant considerations for such a course, should leave the alteration of such boundaries to the competent bodies such as the Boundary Commission;

b. The Rajya Sabha expressed its views in support of the Reorganisation Bill. Only 4 out of the 240 members of the Rajya Sabha were from Jammu and Kashmir. Therefore, the Rajya Sabha cannot be said to be representative of the will of the people of the State. The will of the people could have been expressed only through the Legislative Assembly of the State. The Assembly was dissolved and elections to the Assembly were deliberately not held only with a view to enact the impugned Act100; and

c. The people of the state of Jammu and Kashmir must initiate change rather than the Parliament, which is not the true representative of the people of the state. If the people do not feel the need to abrogate or modify Article 370, they would have done so through their representatives. Just as Parliament cannot decide the members of the Rajya Sabha on behalf of the states, it cannot decide on behalf of the people of the state. Bicameralism and shared sovereignty would prohibit this unilateral non-democratic process wherein the people of the State are excluded.

Reference

Re: article 370 of the constitution, 2023