Supreme Court listening to on Article 370 abrogation are living updates | Day 7

Dave argues that the power to abrogate Article 370 does not lie with the President and that only the Constituent Assembly (dissolved in 1957) could have exercised such powers.

‘This Article has lived its life and achieved its purpose. Article 370(1) survives because if tomorrow the Constitution is amended and a new article is inserted, we would want it to apply to J&K also’, Dave adds.

Dave submits that the abrogation of Article 370 could not have been done without the concurrence of the J&K government. He says that ‘state government’ has to be understood in the context of democracy and cannot be interpreted as the Governor exercising omnibus powers.

Referring to Article 370, Dave adds – ‘Why is it temporary? Why? Because of democracy. You could only do it if Constituent Assembly approved it.’

Dave highlights that he has a two-fold submission. First is that the treaty (Article 370 as an extension of the IoA) has to be interpreted in light of what the Constitution provides and second is that if the treaty has to be amended then it cannot be done through a legislative act but has to be done through the exercise of Constituent power.

‘Constitution is durable. If it served a need of the hour on that day, does not mean that the need be wished away’, Dave says.

Dave reads from the In Re: The Berubai judgment – ‘… the Bill has to be passed in each House by a majority of the total membership of the House and by a majority of not less than two-thirds of the House present and voting; that is to say, it should obtain the concurrence of a substantial section of the House which may normally mean the consent of the major parties of the House, and that is a safeguard provided by the Article in matters of this kind.’

‘You cannot resort to some kind of executive power, authorise the President to do this, do away with everything that Article 3 provides in the garb of Article 356 power. It makes a mockery of constitutional safeguards’, Dave adds.

Dave continues to read from the Supreme Court’s ruling in In Re: The Berubari. He refers to the following paragraph in the judgment–

‘Therefore our conclusion is that it would not be competent to Parliament to make a law relatable to Article 3 of the Constitution for the purpose of implementing the Agreement. It is conceded by the learned Attorney-General that this conclusion must inevitably mean that the law necessary to implement the Agreement has to be passed under Article 368’.

He contends that the abrogation could not have been done through the exercise of legislative powers and that only constituent power should have been exercised under Article 368 of the Constitution.

Drawing from the Supreme Court’s ruling in Re: The Berubai, Dave says that the treaty in question (Instrument of Accession) here is between the erstwhile ruler and the Governor-General which is now transfixed into Article 370.

‘It was absolute brilliant statesmanship on their part to bring that into the Constitution to assure the people of J&K that we mean what we say. So the treaty will have to be interpreted in the light of Article 370’, Dave adds.

Senior advocate Dushyant Dave refers to the Supreme Court’s ruling in In Re: The Berubari Union (1960).

‘But though from the human point of view great hardship is inevitably involved in cession of territory by one country to the other there can be no doubt that a sovereign state can exercise its right to cede a part of its territory to a foreign state. This power, it may be added, is of course subject to the limitations which the Constitution of the state may either expressly or by necessary implication impose in that behalf; in other words, the question as to how treaties can be made by a sovereign State in regard to a cession of the national territory and how treaties, when made, can be implemented would be governed by the provisions in the Constitution of the country. Stated broadly the treaty-making power would have to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it. Whether the treaty made can be implemented by ordinary legislation or by the constitutional amendment will naturally depend on the provisions of the Constitution itself’. [Text from the judgment]

The Bench has reconvened. The hearing has resumed.

The Constitution Bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant will resume hearing from 10:30 am today.

Senior advocate Dushyant Dave will continue his arguments today.

The Supreme Court is scheduled to hear from August 2 a batch of petitions challenging abrogation of Article 370 of the Constitution that bestowed special status on the erstwhile State of Jammu and Kashmir. A five-judge constitution Bench headed by Chief Justice D.Y. Chandrachud will conduct day-to-day hearing from today.

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