Article 370 Hearing in SC: Petitioners Question Conversion of State Into a UT

The five-judge constitution bench said the petitioners’ arguments against the reading down of Article 370 reached a saturation point and asked the lawyers to wrap it up to pave the way for answers from the respondents.

New Delhi: The hearing on the challenges to the dilution of Article 370 of the constitution continued on the eighth day on Tuesday, August 22, with the Chief Justice of India (CJI) D.Y. Chandrachud heading the five-judge constitution bench asking the petitioners’ counsel to complete their arguments early, as they have reached a saturation point.

Senior advocate Dinesh Dwivedi set the tone for Tuesday’s arguments by suggesting that all provisions of consultation and concurrence with the government of Kashmir ceased to operate once the state Constituent Assembly started. He said that J&K didn’t lose its internal sovereignty just because it had acceded to India. Neither inclusion in Article 1 nor the First Schedule could result in loss of internal sovereignty, he suggested. Citing a previous judgment, he said that merely because a state has ceded external sovereignty, it doesn’t amount to ceding of internal sovereignty. 

The CJI disagreed with Dwivedi that the constitution of India, in its application to J&K would stand frozen as of 1957. He asked how one can accept the contention that no further development in the Indian constitution could at all apply to J&K. 

Dwivedi suggested that Article 370 was intended to dissolve itself after the state constituent assembly completed its proceedings. This led to pointed queries from the bench to Dwivedi, on the implications of what he has suggested.

The CJI, however, pointed out that a speech made by an individual member of the Constituent Assembly, however weighty, cannot represent a commitment by the nation to J&K.  

Senior advocate Sanjay Parikh contended that the 1954 Presidential Order was issued after the concurrence of the state Constituent Assembly and the subsequent presidential orders were issued under the assumption that the state Constituent Assembly’s approval pre-existed pointing to an implied concurrence. 

According to Parikh, once power under Section 92 of the J&K constitution was used to dissolve the assembly, there was no valid ground to use Article 356 under the Indian constitution later. “This was just a malafide use of power and was illegal,” he told the bench. 

Senior advocate, C.U. Singh, threw light on the enormity of effect if states are allowed to be converted into UTs. By a simple ordinary majority under Article 3, all other constitutional rights which are also part of the basic structure are also wiped out, he explained.  

To convert a state into UT, a constitutional amendment is needed under Article 368; there is no other way to do it, he suggested. 

On August 5, 2019, J&K was a state, so any change in relation to Article 3 could be only from state to state, he contended. “If two interpretations are possible under Article 3, it has to be with keeping in mind democracy, and the will of the people,” he argued. 

Tracing the history of Articles 3 and 4 from the 1919 and 1935 Government of India Acts, Singh contended that the power to alter boundaries, change names etc. was always used to increase self-representation and democratic self-government. “There was no case of retrogression,” he put it succinctly. 

Conversion of a state into a UT could be done only under Article 368 because it clearly impinges on at least six or seven provisions, so it would require both a special majority and ratification by more than 50% of the state assemblies, he told the bench. 

Right from the 1919 Act, the progression has consistently been towards greater self-governance in the form of statehood, he pointed out. 

Both the bench and the counsel agreed that the conversion of the state into UT is severable from the challenges to the validity of the Union government’s move to read down Article 370.

Singh argued that the Reorganisation Act, apart from Article 370, is very very important for the people of J&K. Therefore if under Article 3 a state can be converted into a UT, then it is the thin end of the wedge for democracy and federalism and the country as a whole, he suggested.

Part I of the constitution of India, Singh submitted, has to be read conjointly, and no power is provided under Article 3 to convert a state into a UT notwithstanding the two explanations.  

Under Explanation I to Article 3, in clauses (a) to (e) of that Article, the word “State” includes a Union territory, but in the proviso, “State” does not include a UT.  

Under Explanation II to Article 3, the power conferred on parliament by clause (a) includes the power to form a new state or UT by uniting a part of any state or UT to any other state or UT.  

According to Singh, the Union government’s argument is that we can interchange states with UTs under Article 3 because of the 18th Amendment. However, the 18th Amendment was not applicable to J&K on August 5, 2019, he suggested.

The hearing will resume on Wednesday, August 23.