Article 370 hearing: Constitution of J&K cannot limit Indian Constitution, says SC

Wednesday was the fourth day of the apex court's day-to-day hearings on petitions challenging the 2019 nullification of Article 370.

New Delhi :The powers and provisions of the Constitution of India cannot be circumscribed by the erstwhile Constitution of Jammu & Kashmir, the Supreme Court observed on Wednesday as it continued hearing a challenge to the August 2019 abrogation of Article 370 and the revocation of special status to Jammu & Kashmir.

The Supreme Court observes Constitution of India cannot be circumscribed by the Constitution of J&K. (ANI)

Stressing that the Indian Constitution is the only Constitution for the entirety of the country, including J&K which acceded to India in October 1947, the five-judge bench led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud pointed out that there are no express fetters on the powers of the Indian Constitution though the J&K Constitution wrested residuary powers with the J&K legislative assembly.

On the fourth day of the arguments in a clutch of petitions challenging the 2019 nullification of Article 370, the bench delved into a comparative analysis of the constitutions of India and J&K, and a discussion whether Article 370 was a permanent link between the two that could not have been snapped without the concurrence of the J&K assembly. One of the arguments raised by one of the petitioners on Wednesday was that it was only for the Constituent Assembly of J&K to legally annul Article 370 and that it could not have been done by unilaterally using the provisions of the Indian Constitution.

Also comprising justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, the Constitution bench observed that the Indian Constitution never engrafted or explicitly brought the J&K Constitution within its fold while the latter adopted the Indian Constitution, though with certain caveats.

“While our Constitution did talk about the J&K Constituent Assembly, but after January 26, 1957 (when J&K Constitution came into force), it doesn’t talk about the J&K Constitution at all. Our Constitution talks of only one Constitution, namely the Constitution of India... the Constitution of India as it applies to J&K subject to certain modifications. Therefore, the only compact or basic document that is within the contemplation of the Constitution of India is this Constitution itself,” it said.

The court continued: “You may call it J&K Constitution but what was adopted in 1957 was the Indian Constitution with certain exceptions and modifications... Article 370, by its very nature, is very flexible. Normally, constitutions are flexible with time and space because they’re made once but they last for long times. Article 370 itself says that J&K Constitution should assimilate what is applicable in other parts of the country.”

On his part, senior advocate Gopal Subramanium, who represents a J&K resident in the case, argued that it was not imperative for the Indian Constitution to recognise or mention J&K Constitution since the latter was framed at a later point in time and further that it was meant for a specific state.

Responding, the bench asked him: “Why post 1957 either J&K government or its assembly, or Parliament never thought of amending the Indian Constitution to bring the J&K Constitution within its fold? J&K Constitution says that the residuary powers will be vested with the J&K legislature. That is a clear fetter on the executive powers of the Union as well as on the legislative powers of an organ of the Union, namely Parliament. So, was it not required for the Indian Constitution to recognise J&K Constitution because after 1957, this was the only Constitution for the whole of India, including J&K?”

To this, Subramanium referred to the Constitutional Order of 1954 which applied most provisions of the Indian Constitution to J&K while carving out certain “volitional” areas where the concurrence of J& assembly was a prerequisite.

“That’s the problem, Mr Subramanium. As you rightly said these were volitional carve-outs and the Union issued those orders. Unless there is some higher precept which prevents them from modifying such carve outs, what is there to restrain the Union from modifying the terms of those carve outs? It cannot be that J&K Constitution will be made a part of our Constitution to impose fetters on our Constitution,” retorted the bench.

Emphasising on the “concept of polarity” and “federalism” as the basis architecture of Article 370, Subramanium contended that the third clause of Article 370 could not have been invoked to abrogate the provision because Article 356 (imposition of President’s Rule) never envisaged that Parliament could substitute itself for J&K assembly and grant its concurrence to end the special status of the state.

The bench, however, told the senior counsel that if the central government is able to show in law that no such restraint could be imposed on its while President’s Rule is in force, they will be decidedly within jurisdiction to do what they did in annulling Article 370.

“During the time when Article 356 is in operation, if they can show their powers were not circumscribed to invoke 356(d) (2), in that event the Union was clearly within its power (to abrogate Article 370). When Article 356 is in operation, all the executive powers of the state are assumed by the Union. Who issued an ordinance in a state? Can the President not issue an ordinance if an urgent situation arises?” it asked.

Subramanium concluded his arguments during the day, and senior counsel Zafar Shah commenced his submissions on behalf of the Srinagar Bar Association. Shah argued that the Instrument of Accession, signed by the Maharaja of J&K with India in October 1947, was akin to an action of the state shaking hands but not embracing India. Shah will resume his submissions on Thursday.

A raft of petitions, filed by parliamentarians from the National Conference party, Kashmiri citizens, former bureaucrats and various organisations laid the challenge to the abrogation of Article 370 soon after the presidential order in August 2019.

While some petitioners brought up the requirement of consent from the Constituent Assembly for the abrogation of Article 370, others questioned the validity of the President’s Rule that was in effect when the abrogation was made. A few of these pleas went back to the Instrument of Accession, while some highlighted the Supreme Court’s ruling of 2018 that observed that Article 370 had gained a status of permanence. Many of these pleas also challenged the Jammu & Kashmir State Reorganisation Act, by which the state was bifurcated into two Union territories with effect from October 30, 2019.

On August 28, 2019, the Supreme Court issued notices on the pleas despite resistance from the central government, which argued that Article 370 had international and cross-border implications.

On July 3, the Supreme Court notified the setting up of a new Constitution bench, comprising its first five judges. A week later, the new bench directed that day-to-day hearing in the case would begin from August 2.A