A Constitution bench of the Supreme Court of India is hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution which conferred special status on the erstwhile State of Jammu and Kashmir.

A Bench of Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant is hearing the matter.

Over 20 petitions are pending before the Supreme Court challenging the Central government's 2019 decision to abrogate Article 370 of the Constitution, which resulted in the revocation of Jammu and Kashmir's special status. The erstwhile State was subsequently bifurcated into two Union Territories.

When the matters were listed in March 2020, a five-judge Constitution Bench of the Supreme Court had decided not to refer the batch of petitions to a seven-judge Constitution Bench, despite some petitioners seeking a reference.

On August 2, the top court began hearing the matter with a question to the petitioners about whether the Constitution makers and Article itself envisaged the provision as a permanent or temporary one.

The Court sought to know whether the Article was envisaged as a permanent provision merely because the Constituent Assembly of Jammu and Kashmir (J&K), which was empowered to recommend the deletion of the provision, ceased to exist in 1957.

On August 4, the top court had asked whether the Article would become part of the basic structure of the Constitution if it is accepted that Article 370 of the Constitution became permanent when the constituent assembly of Jammu and Kashmir was dissolved in 1957.

During the last hearing, the Supreme Court remarked that in a Constitutional democracy like India, the opinion of people on public issues is sought through established institutions and not referendums as with the case of Brexit in the United Kingdom.

Hearing commences.

Senior Advocate Gopal Subramanium appearing for Muzzadar Iqbal Khan: There are multiple approaches of interpretation. What we call historical argument, textual, doctrinal, prudential and structural. End result will be the same whichever way we look at this matter.

Both Constitutions (Constitution of India and Constitution of J&K) exist together and speak to each other. Their complementary existence is the quintessence of the relationship between India and J&K.

Subramanium: Constituent Assembly by its very definition is a primary assembly which is vested with this extraordinary task of framing the Constitution. That is why the amending power is always called a derived power.

Here we have two Constituent Assemblies. The impugned orders in sum and substance does away with the Constitution of J&K, which is impermissible and unauthorised. Then there is view of people. They have a legal and juridicial existence and rights.

Subramanium: I will urge Lordships to consider that both Legislative Assembly and Constituent are recognised in our Constitution. The basic structure will be deduced from both the Constitutions.

Subramanian cites the degree/impact test with respect to extent of abrogation.

Subramanium: Our Constitution recognises asymmetric federalism. It's purpose is to take note of special conditions and needs of people.

Subramanium: Dr Ambedkar spoke of the Constitution being federal and States having special rights and privileges. Jammu and Kashmir was not like any other State at the time of Independence. It had its own Constitution. Accession (of J&K to India) was qualified because people were still in the process of making up their mind.

Just like we gave to ourselves the Constitution, we must give to the Constituent Assembly the right for theirs.

Subramanium: There is a contention that it was a unilateral exercise of power by the President. Please see the text of the last resolution by the Constituent Assembly.

Just like the Constituent Assembly Debates of India are inspiring, the ones or J&K are too.

They had many Constitutions to look at, they looked at the Indian one as well. They said they will need special provisions and exceptions. One of the first States of India that looked at land reform was Kashmir.

Subramanium: Government of India accepted the request and issued 1954 order. High Court of J&K was established by its Constitution as born in 1957.

Even though the word 'temporary' appears, the resolution was that the Constitution of India must apply with these modifications. But more importantly, they said Article 370 must continue. I am talking of an affirmative Article, it is not a non formalistic expression.

Subramanium: The two Constitutions speak to each other through Article 370. It was not a repository of untrammeled power, but a medium through the Indian Constitution would apply. Here lies what I call dual obligation.

Subramanium: What did we under 370 offer? The ability to frame a Constitution and the ability to offer our Constitution subject to special exceptions. When lordships sees those, lordships will realise it is not a simple government order but a product of bilateralism.

Subramanium: Article 367 was amended to bring it in accord with the J&K Constitution.

Subramanium gives history of instrument of accession.

Subramanium: It was different. Other Maharajas signed supplementary accessions and merger agreements. The Maharaja ascertained that a separate constituent assembly for J&K was needed.

Subramanium: Article 370 was not an imposition by the president at all. It was a well thought decision of the constituent assembly. The drafting committee of the Constitution of J&K was to see which provisions of the Indian constitution shall apply and the Part 2 with appropriate modifications and part 3 containing fundamental rights.

Subramanium: You will see the Constitution of J&K recognizes the Constitution of India as applicable to J&K and this is how the two constitution speak to each other and that could happen only through Article 370. In their Constitution, they first recognize Indian Constitution and that they are an integral part of India. Their statehood is dependent on their Constitution.

Subramanium: Please see Article 2(1)(a) of the J&K Constitution. It recognizes the Indian Constitution and it means as applicable in relation to the state. So this was an act of affirmance by the government asking for the Constitution to be applied and Article 147 must be in interpreted in light of this. The question is where does anybody get the power to abrogate this constitution. This is the central question in the case.

Subramanium: When we read Article 370, we should not be waylaid by the marginal expression in the marginal note. The entire article has worked out and it would be incorrect to say that 370(3) is otiose. They have expressly affirmed and it was an express act of resolution and it was accepted by the govt..

I submit that a vexed question as if the constituent assembly was silent on the fate of article 370 was incorrect. They wanted it to continue and they wanted this article to be the language of communication between the twoCconstitutions.

So if the constituent assembly of J&K has taken these proactive steps, can we now abrogate this unilaterally? Can we ever abrogate this arrangement. There are no hierarchies in constituent assemblies. The nature of the constituent power which is exercised by an assembly is pristine and pure as any other assembly. This is the level of statesmanship which India practiced and nothing was done in hurry or imposed.

Subramanium: The purpose of power under clause 1 of 370 is based on principle of mutual understanding. President does not have untrammelled power. There is an interesting part of "notwithstanding" as there could be exceptions and modifications. 'Notwithstanding' also tells us the supreme nature of this document under article 370. If we look at the components of basic structure. That will also be applicable. Can this be abrogated?

Subramanium: This arrangement between J&K and India was a compact of federalism and Article 370 establishes the contours of this federal arrangement and this federal principle must be read as in-built in the application of Article 370.

Bench rises for lunch.

Bench reassembles.

CJI: Apologies for the delay Mr. Subramanium. You have made the earlier point.

Subramanium: The implication of the abrogation of the 1954 order is serious and irreversible.

Subramanium: This completely emasculates the bilateralism which is enshrined in Article 1 of the Indian constitution and now a new exception or modification is carved out to make the entire Indian constitution applicable. A provision of interpretation is an aid to construction and is no more it is to seek a construction pattern in the Constitution. Please see the word of clause (d). In other words, the state assembly and constituent assembly are different things and thus it cannot be said constituent assembly be read as state legislative assembly. This is direct amendment of Article 370 (d) and this cannot be done by using an interpretation clause.

CJI: You are saying what was done is to directly amend Article 370(3) and that this cannot be done by using Article 367 which is an interpretation article. So what have they done by an adaptation order?

Subramanium: There is a polarity under Article 370.

CJI: Are you saying when proclamation under article 356 is there.. there is a fetter on exercise of article 370(3).. which is an implied limitation and not an express fetter

Subramanium: Yes. Article 370 is not a conditional legislation. It is about applying provisions of the constitution. It is a constitutive act.

CJI: We must note that though Indian constitution does speak of Constituent assembly of Jammu and Kashmir but it does not refer to the constitution of Jammu and Kashmir at all. No one ever thought of amending the Indian Constitution to expressly include the J&K Constitution at all. J&K constitution does have fetters on powers of the union or application of Indian Constitution. But there is no such fetter in the Indian Constitution. Suppose article 356 is in the operation and if any ordinance has to be issued, can the president not issue an ordinance then?

Subramanium: The fact that indian constitution does not mention J&K Constitution at all is not correct since many articles states that it does not apply to J&K. Article 356 is an emergent provision and orders under it cannot be irreversible at all. That is the point here. Article 370 cannot be used for self destruction and it has been clarified in judgments of this court.

Justice Sanjiv Khanna: What we have seen is that Article 370 is very flexible in itself. Article 370 itself says it can be modified to make the Indian Constitution applicable as it is made applicable to the other parts of the country.

Subramanium: J&K Constitution can be overturned or repealed by their legislature but not by the parliament. It is flexible but if decisions are taken without a bilateral consensus or discussion with the state assembly, (it) is not justified.

CJI: What happened to the instrument of accession after constitution of J&K came into being?

Subramanium: After the constituent assembly decided to acceded to India, that decision was the one that stood. There were some reservations in the instrument of accession but the constituent assembly acceded to India.

CJI: But would it be correct to say that instrument of accession then ceased to exist?

Subramanium: It is a historical fact.

CJI: But will it be subsumed in the State constitution.

Subramanium: Yes it will be. The constitution itself notes the instrument of accession. The instrument was for a very limited purpose.

CJI: Could it be that fetter on parliament on clause (d) of 370 was a limited transitional provision which could operate only till instrument of accession held the field. And thereafter, the fetter on parliament was not traceable to the instrument and could have to be found somewhere else.

Gopal Subramanium concludes arguments.

I have kept my word (with regard to time limit for making arguments), he says.

Senior Advocate Zaffar Shah begins arguments.

There are a few approaches to understand this Article 370. Why did not the Maharaja enter into the merger agreement. It has to be seen why he did not do that.

Union of India was by itself was one authority. The maharaja was one authority.

When India gained independence, all (princely) states merged with the union. The maharaja did not enter into a merger agreement.

He only entered into a standstill agreement with Government of Pakistan but India did not enter.

Then comes the instrument of accession where India gets the power over defence, foreign affairs, security. But all other power to make laws etc was with the Maharaja. Thereafter, his son also does not enter into any merger agreement. The Constitution of India was already underway then.

CJI: What does accession mean? It means Jammu and Kashmir becomes an integral part of India and there cannot be any going back now.

Shah: De jure sovereignty was not transferred to India.

CJI: What has happened is that sovereignty transferred to the dominion of India but the power of legislation on some subjects was retained.

Justice Sanjiv Khanna: It also read in the order - that it accedes to the Union of India.

Shah: Article 370 is a special relationship between the State of Jammu and Kashmir and Union of India. Article 370 mentions making of constitution and our state retained some part of the statehood and did not surrender everything. When I ask make a law for me then such a law is made by the Union.

Bench rises for the day. Hearing to continue tomorrow.