Senior Advocate Rajeev Dhavan on Wednesday contended before the Supreme Court (SC) that Maharaja of Jammu and Kashmir retained internal sovereignty and Article 370 was a constitutional substitute for a standstill agreement
He argued that entering Instrument of Accession with Indian Union resulted in loss of state’s external sovereignty to an extent, but internal sovereignty has not been lost.Dhavan said that India has the greatest diversity in the world and the Indian constitution is a constitution of a civilisation with many nations and many cultures.“A diversity that is to be treasured cannot be wished away in the name of uniformity. The Indian Constitution is multi-symmetrical- of which Jammu and Kashmir is a part,” he submitted.Dhavan argued that under President’s rule, the Union Parliament can exercise law-making powers of the state legislature, but cannot assume functions such as altering boundaries.He said that while an emergency has been proclaimed by the President under Article 356 of the Constitution, provisions contained under Articles 3, 4 and 370 (providing for mandatory consent of the state legislature as a pre-condition) cannot be invoked.
“The conditionality is specific to the legislature of the State…. neither the Parliament nor the President can substitute them,” he said, adding that such process of substitution will be subversive to the Constitution.He pointed out that Article 370 is one of the many provisions, which constitutes the basic structure of federalism in the Constitution.He referred to recent verdict of the Supreme Court handing over control of services to the government of NCT of Delhi, and many other judicial precedents in support of his arguments around preserving federalism. The autonomy of States is fundamental to our Constitution, he added.After Dhavan, senior advocate Dushyant Dave commenced oral submissions before the Constitution Bench. He argued that the exercise of powers in nullifying Article 370 was nothing but “fraud” on the Constitution.He said that Centre’s action disintegrating the erstwhile state into two Union Territories will have ramifications on the future of the nation.“Tomorrow it may happen that my party cannot get elected in ‘A’ state. I (referring to the ruling party in the Centre) will disintegrate it (state ‘A’) in Union Territory? Because there is law and order problem? This is something to be seriously considered,” Dave said.“We have insurgency in so many states in North East India. We had an insurgency in Punjab for a long time. If we were to start disintegrating states into Union Territories, no state would be saved,” he added.Dave argued that constitutional powers cannot be exercised to achieve political ends. “The ruling party manifesto in 2019 had said that we’ll abrogate (Article) 370,” he said, referring to the Bharatiya Janata Party’s manifesto for 2019 Lok Sabha polls.Further, he contended that abrogation of Article 370 strike at very basic features like democracy, federalism, etc. of the constitution.A Constitution Bench of the Supreme Court headed by CJI DY Chandrachud is hearing a batch of pleas challenging abrogation of Article 370 of the Constitution from August 02.The Constitution Bench comprises the five senior-most judges of the apex court, namely CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant.It will continue hearing arguments for petitioners tomorrow.
