How permanent or temporary is Article 370? Part II of a series summarising arguments presented before the Supreme Court

12, Oct 2023 | A Legal Researcher

This article is Part II in the series to summarise the arguments presented by parties in the Article 370 hearings before the Supreme Court that have concluded on September 5, 2023. The court has reserved its judgement in the case.

This part deals with arguments over the nature of Article 370 i.e., whether it is/was a permanent or temporary provision and whether the President could abrogate the article without the concurrence of the Constituent Assembly or not.

Petitioners’ arguments:

Senior Advocate Kapil Sibal argued that Article 370 was temporary from 1951 to 1957, when there was a Constituent Assembly that could give its recommendation to the President under Article 370(3) to abrogate it. After the Constituent Assembly came to an end, the temporary nature of the article, he argued, was turned into a permanent one.

It was also argued that the word ‘temporary’ in the heading of Article 370 “Temporary provisions with respect to the State of Jammu and Kashmir” is a marginal note and therefore should not control the reading of the text, as held by the Supreme Court in the case of Kesavananda Bharati vs. State of Kerala.[1]

The bench stated that Article 370 is part of part 21 of the Constitution which deals with temporary and transitional provisions, presenting the question again, on the temporary nature of the article. Mr. Sibal argued that when article 370 was inserted into the Constitution, it could be nothing but a temporary provision since the Constituent Assembly of J&K had to decide on it and that it is an independent provision due to which concepts outside of the Article 370 cannot be incorporated to read it.[2]

Arguing on whether the President could take the necessary recommendation under Article 370(3) from the State Legislature instead of the Constituent Assembly as was stated in the Constitution before the Constitution Orders in 2019, or not – Mr. Sibal argued that the Legislature and a Constituent Assembly are completely different bodies and therefore, cannot be equated.

While the Constituent Assemblies only intent is to arrive at a workable Constitution starting from a clean slate that is not the case for a Legislature or a Parliament. Therefore, the President could not abrogate the article since there is no Constituent Assembly today. And the way the Union has crafted its moves, i.e., to amend the Article 370 by replace(ing) Constituent Assembly with the word Legislative Assembly would not stand, as they are not the same institutions.[3]

Senior Advocate Gopal Subramanium, arguing after Mr. Sibal, argued that the Jammu and Kashmir (J & K) Constituent Assembly did not cease to exist without giving its decision on the Abrogation of Article 370. He argued that the J&K Constituent Assembly resolved in the affirmative that Articles 1 and 370 must continue. [4] He also argued that the J&K Constitution includes a provision under Article 147 stating that no Bill or amendment seeking to make any change in the provisions of the Constitution of India as applicable, in relation to the State (J & K), shall be introduced or moved in either House of the Legislature- which meant that the power to amend the provisions related to Indian Constitution was not given to the Legislature. Mr. Subramanium argued that any exercise of the nature of Constitution orders 272 and 273 should have been the consequence of a bilateral process as opposed to the Union’s unilateral process that was actually followed. The flexibility of Article 370 was subject to the bilateral process that is to be followed under the Article, he argued.[5] It is noteworthy that while Mr. Sibal argued that Constituent Assembly and Legislature cannot be equated, Mr. Gopal Subramanium hinted that Legislature could have been a part of the process of abrogation. Senior Advocate Dushyant Dave argued that the Article 370 might be temporary but from the perspective of Jammu and Kashmir and not from the perspective of Indian Dominion or Indian Republic since the former was given the opportunity to decide on the article. [6]Petitioners who argued on the issue, were in unison in their arguments to the extent that the Article 370 had become a permanent feature of the Constitution after the J&K Constituent assembly ceased to exist.

Respondent’s arguments

Attorney General R. Venkataramani argued that the recommendation from the Constituent Assembly, as stated in Article 370(3) is impossible to get because the Constituent assembly has ceased to exist after 1957. This impossibility, he argued, should not take away the President’s authority under Clause 3 which still exists even after the Constituent Assembly has ceased to exist.

Venkatramani also stated that the Article 370 was (meant) to be terminated at some point of time and that it happened now; such termination had to be brought in suitable way. He also argued that Legislative Assembly is an equally competent body that could perform a non-legislative function as the Constituent Assembly would have performed. It was also his contention that since there is nothing that forbids the President to take stock of the Article 370 and his exercise over a period of time, it is open for the President to take stock of exercises undertaken under Article 370 and other consideration “which loom large before the Nation, particularly the State of J&K.”[7]

Since the recommendatory power of the Constituent Assembly was a non-legislative function, and since the Article 356(1)(b) states that the President can declare the powers of Legislature of the State shall be exercisable by or under the authority of the Parliament- The President has taken the route  to closely approximate the non-legislative function of the Constituent Assembly by substituting it with the Legislative Assembly. [8]

Solicitor General Tushar Mehta argued that the Article 370 was a temporary provision that was set to be there until the disturbances in the state of J&K were gone and until the situation normalised.[9] He also argued that the Article has been treated as temporary as opposed to what the petitioners argued.[10] He argued that there is no necessity to look beyond the categories of Part XXI, which are ‘temporary, transitional and special. He stated, regarding the proviso to Article 370(3) which mandates a recommendation from the Constituent Assembly of J&K for the President to abrogate Article 370, that even if the proviso does not serve any practical purpose after the Constituent Assembly has ceased to exist- the substantive provision empowering the President to abrogate the Article remains; or else, he argued that the President of India’s decision is dependent on a different body that takes or does not take a decision, which cannot be the reading according to him. He also argued that the role of Constituent Assembly was recommendatory which meant that the President could still abrogate the article even if the recommendation was otherwise. The Chief Justice responded to this line of argument saying that as long as the body was a Constituent Assembly, it was not recommendatory and an affirmative recommendation from the J&K Constituent Assembly would have been essential.[11]

In essence

The petitioners argued that Article 370 was temporary until the only body which could recommend its abrogation being the J&K Constituent Assembly was in existence and once the body ceased to exist, the Article has become permanent. The Legislative Assembly could not take on the positing of Constituent Assembly, according to some petitioners since the former is a body with different functions as opposed to the latter in terms of what it represents.

The Respondents argued that the provision exists in Part XXI which means that it could be abrogated and the way it was abrogated – by replacing Constituent Assembly with a Legislative Assembly, was the most suitable and Constitutional way possible, since the Constituent Assembly does not exist anymore.

(The author is a CJP legal researcher with the organisation)

(To be concluded –Part 3 to follow)

[1] Page 10, Day 2 Transcript, August 3, 2023, Article 370 Hearings, Supreme Court;

[2] Page 66, Day 1 Transcript, August 1, 2023,  Article 370 Hearings, Supreme Court;

[3] Page 41, Day 2 Transcript, , August 3, 2023, Article 370 Hearings, Supreme Court;

[4] Page 6, Day 4 Transcript, August 9, 2023, Article 370 Hearings, Supreme Court;

[5] Page 30, Day 4 Transcript, August 9, 2023, Article 370 Hearings, Supreme Court;

[6] Page 7, Day 7 Transcript, August 17, 2023, Article 370 Hearings, Supreme Court; file:///C:/Users/bteja/OneDrive/Desktop/Transcripts/7-Seventh%20Day-August-10th-2023.pdf

[7] Page 34, Day 13 Transcript, August 31, 2023, Article 370 Hearings, Supreme Court;

[8] Page 18, Day 13 Transcript, August 31, 2023, Article 370 Hearings, Supreme Court;

[9] Page 46, Day 10 Transcript, August 24, 2023, Article 370 Hearings, Supreme Court;

[10] Page 39, Day 11 Transcript, August 28, 2023, Article 370 Hearings, Supreme Court;

[11] Page 34, Day 12 Transcript, August 29, 2023, Article 370 Hearings, Supreme Court;

Also Read

Is Article 367 a tool for understanding or amending the Constitution? Abrogation of Article 370, Part 1

‘Reorganisation’ of J & K into two union territories, constitutional? Part III of the analysis in the 370 case


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