New Delhi: Extreme examples are necessary to solve extreme cases. This sentence used in a 1970 judgment by an eleven-judge bench of the Supreme Court reverberated during the ninth day of hearing by the top court’s five-judge constitution bench hearing the challenges to the dilution of Article 370 on Wednesday, August 23. In H.H.Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Others vs Union of India, decided by the eleven-judge bench on December 15, 1970, the abolition of privy purses was under challenge. After the Bill for the purposes failed to secure the requisite two-thirds support from the Rajya Sabha, the president, exercising powers under Article 366 of the constitution, signed an instrument withdrawing recognition of all the Rulers of the Princely States. The Supreme Court held in this case that the order of the president “derecognising” the rulers is ultra vires and illegal. (The Union Government later abolished the privy purses and privileges of rulers of former Indian States through the 26th Amendment Act, 1971.)In his judgment in this case, then chief justice of India (CJI) M. Hidayatullah pointed out that if the Maharaja of Jhind were recognised as the Nizam of Hyderabad, there would be no application of Article 366 (22) – defining the Ruler of a former Indian state – and the action so wholly arbitrary as not to be protected by Article 363 (Bar to interference by courts in disputes arising out of certain treaties, agreements, etc.). Justice Hidayatullah observed:“The answer was that the President would never do so. But who would have thought in 1950 that recognition of all the Rulers would be withdrawn by a single order? Therefore, extreme examples are necessary to solve extreme cases”. On Wednesday, senior advocate Gopal Sankaranaryanan, while concluding the petitioners’ arguments before the bench, referred to this observation, and questioned the Union government’s use of Article 367 – dealing with Interpretation – to abolish Jammu and Kashmir’s special status. He said: “Using 367, the phrase ‘the legislature of not less than half of the states’ could be read as Rajya Sabha or the law minister. You can say that.”Sankaranarayanan cited this extreme hypothetical example to question the Union Government’s move to amend Article 367, which provides guidelines to interpret the constitution. A new clause was added to Article 367, replacing “Constituent Assembly of the State” referred to in Article 370(3) by “Legislative Assembly of the State”. Sankaranarayanan thus slammed the Union government for amending the constitution through the device of Article 367, rather than Article 368, and asked: “If they are allowed to do this, heavens know what they will do next.”On Wednesday, senior advocate Nitya Ramakrishnan set the tone of arguments by questioning the general assumption that J&K is not integrated and that Central rule was aimed at it. She pointed out that political sovereignty rests with the people and there is a democratic pact which was a part of Article 370. She suggested that if a change has to occur, then the recommendation has to emanate from an authority that is equal in mandate as compared to the constituent assembly. She referred to the interview that the former governor of J&K Satyapal Malik gave to The Wire, and claimed that he did not even know on August 4, 2019 that the Constitution (Application to Jammu and Kashmir) Order (CO) was being issued the following day, to withdraw the state’s special status. The bench, however, pointed out that this is a post-facto statement. SG says no intention of touching special provisions in NortheastDuring the hearing, the bench recorded an important statement made by solicitor general Tushar Mehta that the Union government has no intention to touch the special provisions applicable to the north-eastern states. “There is no apprehension and there is no need to create apprehension, as it will have serious repercussions,” he told the bench. Following this, the bench requested senior advocate Manish Tiwari not to discuss such apprehensions.Advocate Warisha Farasat relied on the legal doctrine of malice in law to challenge the events surrounding the dilution of Article 370, as three former chief ministers of the state were in detention. She claimed that in these days of pre-legislative consultation, what the Union government did with regard to the dilution of Article 370 clearly smacked of malice. CJI D.Y. Chandrachud, while responding to Sankaranarayanan, suggested that Article 370 was never intended to be a permanent provision and that it was self-limiting after the state constitution came into force in 1957. Sankaranarayanan observed that this case is effectively about whether a power to dilute Article 370 exists and whether the procedure laid to exercise that power was followed by the Union government.The CJI asked succinctly: “Can the constitution of a federating unit be superior to the constitution of the Union?”The respondents will begin their arguments on Thursday.