If every speech part of the Constituent Assembly Debates were to be accepted as a binding national commitment, the same would have ramifications for constitutional interpretation, the Supreme Court observed on Tuesday while hearing the Article 370 abrogation 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 was hearing arguments of Senior Counsel Dinesh Dwivedi who appeared for the petitioners.
The CJI, during the course of the hearing, posed the question,
“Can we say a speech by a Member of Parliament will have an effect of a binding commitment of a nation to the State of Jammu and Kashmir? This will have implications in interpreting the constitutional provision.”
Justice Khanna then weighed in saying,
“We cannot read portions of the debate and come to this conclusion. You need to read the full context. In a debate, there are statements and replies to questions.”
Justice Kaul then asked if Dwivedi’s argument was that the Constituent Assembly Debates showed that Article 370 of the Constitution had dissolved itself.
Dwivedi responded by saying that it showed the intention of the framers of the Constitution.
The CJI then remarked,
“Net consequence will be, application of Constitution of India will be frozen to the State of Jammu and Kashmir after 1957 – how can this be permitted? If Jammu and Kashmir is an integral part of India, then surely there have to be provisions of the democratically elected government of the country. There are no provisions in the Indian Constitution which bars its applicability to Jammu and Kashmir, if your contention is taken.”
Tuesday marked the eighth day of the 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 (J&K). The erstwhile State was subsequently bifurcated into two Union Territories.
Dwivedi began his submissions yesterday by arguing that Kashmir is entirely different, both in terms of accession to the dominion of India and the type of its merger.
The CJI asked which provision of the J&K Constitution is equivalent to Article 245 of the Indian Constitution.
Dwivedi replied saying the erstwhile State had its own Articles 3, 4, and 5.
“But the Constitutional orders are part of Constitutional practice. Thus, if we follow your argument then there will be no restraint on the powers of Parliament,” the CJI said.
Senior Advocate CU Singh then began his submissions for the petitioners.
Singh stated that the presidential proclamation announcing the abrogation was void.
“The two provisos to Article 3 in relation to J&K were suspended, without concomitantly applying the proviso, which applies for the rest of India. As far as J&K is concerned on August 5, 2019, it was a State, so any change in relation to Article 3 could be only State to State. If two interpretations are possible, keeping in mind Article 3, it has to be with keeping in mind democracy, and the will of the people,” he said.
The CJI then asked whether there is a peculiar category for the creation of Union Territories and their classification.
Singh replied saying,
“There were 562 States and they were merged and made into viable States. So all viable States became Part B states. Please see the scrutiny required for issuing such presidential proclamations … I submit that to convert a State into a UT, a Constitutional amendment is needed under Article 368, which needs 2/3rd ratification (by States). There is no other way to do it … Please see the enormity of effect that will be there if States are allowed to be converted into UTs. Please see Articles 294 and 295. By a simple ordinary majority under Article 3, all other constitutional rights, which are also part of basic structure, is also wiped out,“ he contended.
Senior Advocate Sanjay Parikh then began his submissions for the petitioners.
“The 1954 Presidential order was issued after the concurrence of the constituent assembly, and thus the subsequent presidential orders were issued under the assumption that constituent assembly approval pre-exists. And thus, how else can there be a concurrence?” he asked.
He added that once powers under Section 92 of the J&K Constitution were used to dissolve the assembly, Article 356 of the Indian Constitution could not then have been resorted to.
“This was just a mala fide use of power and was illegal,” he asserted.
Senior Advocate Prashanto Sen then argued for the petitioners.
He said that the Muslim majority population of J&K had chosen to be with India under the Constitutional promise of Article 370.
“When there is a constitutional promise in the nature of Article 370, it should be strictly construed. Now then, what are the limits of a constitutionally vested power? Liberty ends where the other man’s nose begins. When we are talking about anti-majoritarian rights, there are the LGBTQ+ judgments coming, and there are such devolutions. Then the government order 273 abolishes the legislature of the State, but when you abolish the legislative council it has to be as per the Article 169 of the Constitution,” he said.
Senior Advocate Nitya Ramakrishnan, also for the petitioners, added that integration is neither a linear concept nor a quantitative one.
The petitioners have been asked to wrap up their opening arguments by Wednesday afternoon.