The Supreme Court’s Constitution bench, led by CJI DY Chandrachud and comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, recently delved into the contentious issue of Article 370 during its fourteenth day of hearings. The focus was on the powers of the President to abrogate Article 370 and the recommendatory power of the Constituent Assembly of Jammu & Kashmir (J&K).
Senior Advocate Rakesh Dwivedi, representing the respondents, emphasized the inherent powers vested in the President under Article 370(3). He argued,
“Yes, the proviso is a limitation so long as the JKCA (Jammu and Kashmir Constituent Assembly) is alive. Its death doesn’t mean the death of the main power.”
Dwivedi countered the petitioners’ claims on federalism, asserting that the framers of the Constitution envisioned ‘equal federalism’ for all states, which forms the Basic Structure of the Constitution. He remarked,
“The rider goes, the main part expands. The proviso goes, the main part expands and there would be no need for approval. The president means council of ministers and the council of ministers means collectively responsible to the parliament. So Article 53 read with 73 and read with 75(3), council of ministers can go to the parliament any time to obtain its views.”
Dwivedi also highlighted the constraints faced by the J&K Constituent Assembly compared to the Indian Constituent Assembly. He listed several bounds, including the obligation to ensure that the sovereign democratic republic of India remains unaffected and the requirement to uphold justice, liberty, and fraternity. He further elaborated on the concept of the devolution of powers, drawing parallels with the UK’s system where regions like Scotland, Northern Ireland, and Wales have their own parliaments. Concluding his arguments, Dwivedi poignantly stated,
“It is surprising that my friends on the right, wedded to democracy, are seeking permanence based on a crown which is long gone. The king is dead, long live the king. You don’t have to accede or execute a document for the purpose of becoming units. The preamble, Articles 1, 5, fundamental rights- all those make the republic. Without it, there is no republic.”
Senior Advocate V Giri, echoing similar sentiments, argued that J&K’s integration with India is now complete, leaving no residuary power with the state. He emphasized,
“The recommendation power of the Constituent Assembly was intended to be co-terminus with the life of the Constituent Assembly which was dissolved after the constitution of the state was made.”
This ongoing debate underscores the complexities surrounding Article 370 and the broader implications for the relationship between J&K and the Indian Union.
