24/08/2023 – [Day -10]

Submissions on behalf of Union Government ; petitioners have concluded their arguments on Article 370.

In the backdrop of Article 370 repeal, the Union government has emphasized the importance of ensuring Jammu & Kashmir’s access to central welfare services and equal rights.

Tushar Mehta, Solicitor General, underlined that sovereignty merged upon accession, denying the requirement for a merger pact, as witnessed in previous princely nations. Chief Justice D.Y. Chandrachud emphasized the importance of methods matching goals.

Mehta told the Supreme Court that there will be no interference with special provisions for North Eastern states, addressing concerns made by lawyer Manish Tewari regarding the repercussions of abrogation on the prospects of northeastern states.

Summary of Petitioners’ Arguments Before the Supreme Court in the Article 370 Case

After nine days of hearing the petitioner’s side of arguments finally they have concluded their briefing with wide range of allegations challenging the dissolution of Jammu and Kashmir’s special status under Article 370.

Constitutional autonomy attained by J&K

Petitioner counsels highlight J&K’s distinct relationship within India’s constitutional framework. They trace J&K’s accession and its constitutional history, emphasizing the unique nature. The absence of a merger agreement preserved J&K’s internal sovereignty despite ceding certain powers through the Instrument of Accession. Article 370 then subsumed this residual power, maintaining J&K’s special status and constitutional autonomy.

Constitutions of J&K and India intertwined making Article 370 a bridge between the both. There co-existence was the very essence of the vital relationship between J&K and India.

• Article 370 was no longer a temporary provision.
• Permanent residents must be protected
• Article 370 ceased to exist once the J&K constitution was enacted.

On the union’s preferred procedure

• Misuse of article 368
• Amendment through Article 367
• Article 370 can only be amended by Article 368

Asymmetric Federalism & Dual Polity:

The petitioners highlight India’s embrace of asymmetrical federalism and a ‘dual-polity’ structure. They stress that the Indian Constitution respects special conditions and diverse federal arrangements, integral to its federal structure. Autonomy of states within the federation is fundamental and special provisions for different states are inherent. Senior Advocate Rajeev Dhavan emphasizes this as a crucial aspect of the Constitution.

Conversion of State into Union Territory Impermissible:

Petitioners argue that while Article 3 grants the Union power to alter state boundaries and create smaller states, converting a state into a Union Territory is unprecedented. This point, initially raised by Senior Advocate Sibal, is expanded by Senior Advocate CU Singh. Historical context shows Article 3 promotes self-governance via state creation, not the other way around. The argument asserts that representative democracy suffers when Parliament exclusively represents a region’s interests, disregarding the constitutional obligation to consider state viewpoints.

Conversion of state into Union Territory

Petitioners argue that Article 3 of the Indian Constitution grants power to alter state boundaries and create smaller states, but converting a state into a Union Territory is unprecedented. This argument, initially presented by Senior Advocate Sibal, is expanded upon by Senior Advocate CU Singh. Historical context shows Article 3 promotes self-governance by converting Union Territories into states, not vice versa. They also assert that Parliament being the sole spokesperson for a region’s wishes compromises the essence of representative democracy, neglecting the constitutional duty to consider state perspectives.

23/08/2023- [Day-9]

Central Government Affirms No Intention to Modify Special Constitutional Provisions for North-Eastern States

The central government assured the Supreme Court that it has no plans to tamper with the northeast states’ unique provisions. Tushar Mehta, Solicitor General, clarified that the government intended to keep these provisions and distinguish them from the transitory measure, Article 370.

This was in reaction to senior advocate Manish Tiwari’s arguments, which emphasized the constitutional relevance of India’s perimeter in terms of national security. Chief Justice DY Chandrachud stressed that the government’s statement dispels any concerns and urged that the matter not be pursued further.

The spotlight switched away from the North East, and the government’s guarantee was perceived as effectively alleviating worries.

The Supreme Court has clarified that the verdict on Article 370 has no effect on special provisions for the North East. The Union Government promises that it has no intention of affecting the specific provisions of the North East, assuaging worries. Separate from the Interlocutory Application, the case’s focus is limited to Article 370.

Can a single state constitution(J&K) have binding effects on a nation’s constitution (India)?

CJI DY Chandrachud’s interpretation of Article 370 suggests ambiguity on its conclusion. Pointing to the absence of post-decision provisions, he raises the possibility that Article 370 might have ended with Constituent Assembly dissolution.

The CJI said that this brought up two ideas: one that the Constitution of J&K could fill the gap left by Article 370, and the other was whether J&K constitution could ever be more powerful than the indian constitution

It was further noted that in the Article 147 of the J&K constitution and it’s provisions were to be treated as an subordinate to the Indian Constitution.

ARTICLE 370 NEVER MEANT TO BE PERMANENT

CJI interprets Article 370(1)(c) regarding its application to J&K. Notes anomaly with Article 1’s universal application. Highlights unique context despite Article 1’s permanent status. As Article 1 of the Indian Constitution states

The geography of India is defined in Article 1 of the Indian Constitution, which states that India shall be a Union of States. It also includes a list of the states and territories that make up the Union, as well as their individual territories. The geographical limits and composition of the Indian nation are established in this article.