As of August 2, a group of petitions contesting the Supreme Court’s decision to abrogate Article 370 are being heard by a Constitution Bench presided over by Chief Justice DY Chandrachud.
On Wednesday, Senior Advocate Rajeev Dhavan argued before the Supreme Court (SC) in New Delhi that the Maharaja of Jammu and Kashmir retains internal sovereignty and that Article 370 is a legitimate alternative to a standstill agreement.
His argument was that while the state had lost some exterior autonomy by signing the Instrument of Accession into the Indian Union, it still retained internal sovereignty.
According to Dhavan, the Indian Constitution is the constitution of a civilisation that includes many different nations and cultures.
To wish away variation in the name of uniformity is to wish away something to be preserved. He argued that Jammu and Kashmir should be recognised as part of the multi-symmetrical nature of the Indian Constitution.
Dhavan stated that the Union Parliament, under President’s control, can make laws like a state legislature but cannot assume functions like redrawing boundaries.
He said that Articles 3, 4, and 370 (which require the prior approval of each state’s assembly) are null and void because the President has declared an emergency under Article 356.
He further argued that “the conditionality is specific to the legislature of the State…. neither the Parliament nor the President can substitute them,” because doing so would violate the Constitution.
He cited Article 370 as an example of the several constitutional articles that together form the Constitution’s foundational framework for federalism.
In support of his case for maintaining federalism, he cited the Supreme Court’s recent ruling that transferred authority over some services to the government of the National Capital Territory of Delhi as well as numerous other precedents from the court system. He went on to say that state sovereignty is an essential part of our Constitution.
Senior attorney Dushyant Dave began oral arguments in front of the Constitution Bench after Dhavan finished. He claimed that the government’s action to void Article 370 constituted a “fraud” on the document.
He warned that the consequences of the central government’s decision to split the former state into two Union Territories are far-reaching.
It’s possible that my party may lose the election in state ‘A’ tomorrow. In Union Territory, I shall break it up (state ‘A’). Referring to the ruling party in the Centre. Because of a breakdown of law and order? Dave remarked that this was an idea worthy of serious consideration.
We have insurgency in a number of North Eastern Indian states. Punjab was plagued by an insurgency for quite some time. No state could survive if we began dividing them up into Union Territories, he said.
According to Dave, constitutional authorities cannot be used for partisan purposes. “The ruling party manifesto in 2019 had said that we’ll abrogate (Article) 370,” he remarked, alluding to the Bharatiya Janata Party’s manifesto for the 2019 Lok Sabha elections.
He went on to say that fundamental constitutional principles like democracy, federalism, etc. will be undermined by the repeal of Article 370.
On August 2, a group of petitions contesting the repeal of Article 370 of the Constitution will be heard by a Supreme Court bench led by Chief Justice DY Chandrachud.
The five most senior judges on the Supreme Court sit on the Constitution Bench, which includes Chief Justice DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant.
Petitioners’ arguments will be heard tomorrow.
