Article 370 and Jammu & Kashmir’s Autonomy: A Constitutional Debate
In a significant hearing on the dilution of Article 370, Senior Advocate Dr. Rajeev Dhavan asserted before the Supreme Court Constitution Bench that the
Thank you for reading this post, don't forget to subscribe!“Autonomy of states is fundamental to our constitution.”
The bench, comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, convened to address the petitions challenging the changes made to Article 370.
Dhavan emphasized the diversity of the Indian Constitution, pointing out that Jammu and Kashmir (J&K) wasn’t the sole state with autonomous provisions. He argued that without the autonomy granted to states and special provisions for certain populations
“India would collapse.”
He further stated,
“Take that away and we don’t need such a big Constitution.”
Highlighting the special provisions for various states, Dhavan referenced Articles ranging from 371 to 371J, which cater to states like Gujarat, Maharashtra, Nagaland, Assam, Andhra Pradesh, Telangana, and more. He also mentioned the special governance arrangements for Union Territories like Pondicherry and Delhi under Articles 239A and 239AA.
Dhavan elaborated on the safeguards for India’s federal unity, stating,
“Bodoland is mentioned in the Constitution. Nagaland has autonomous councils…These are safeguards for federal unity of India, as was 370. It is part of the basic structure of federalism in our constitution.”
Justice Kaul responded to Dhavan’s assertion about the diversity of the Indian Constitution, remarking,
“You’re right, it’s possibly more diverse than the whole of Europe combined.”
Dhavan further argued that Article 370 could only be amended through Article 368. He described Article 370 as “the repository of merger agreement read with the IoA” and a part of the basic structure of the Constitution.
The Senior Advocate also touched upon the changes in J&K’s territory, emphasizing that any alterations required the consent of the State Legislature. He argued against the use of President’s Rule to amend mandatory provisions, referencing the Supreme Court judgment in M. Nagaraj & Others v. Union Of India.
During the hearing, CJI DY Chandrachud posed questions about the scope and application of Article 356, which allows the President to suspend certain constitutional provisions.
In a parallel argument from another source, Dhavan began by stating that Article 370 granted J&K internal sovereignty. He emphasized that Parliament couldn’t substitute for a state’s legislature, as was done during the abrogation of Article 370. Justice Khanna responded
“There is a difference between the existence of power and abuse of power, thus, let us not confuse it.”
Dhavan also highlighted the bifurcation of the state into two Union Territories without referencing Articles 239 or 239AA. He reiterated
“Jammu & Kashmir is not a dead horse. The autonomy of a state cannot be wished away like this just because the government says, ‘okay the provision was taken away’. The autonomy of a state is fundamental to the Indian Constitution.”
In conclusion, the debate on Article 370 and the autonomy of J&K underscores the intricate balance between federalism and unity in the Indian Constitution. The outcome of this hearing will have profound implications for the future of constitutional governance in India.
