Article 370 Case : Live Updates From Supreme Court [Day 4]

CJI: But the constitution of J &K imposes limitations on the executive power of the Union and the legislative power of an organ of the Union namely parliament.

Subramanium: The constitution of J&K is intended to be applicable to J& K. It is a constitution because it was framed by a constituent assembly.

CJI: Post 1957, neither the legislative assembly of J&K nor the political establishment in the rest of the country represented by parliament, nobody ever thought of amending Indian Constitution to expressly bring the J&K constitution within the fold of Indian Constitution.

Subramanium: Was J&K constituent assembly not tasked with framing of a constitution?

CJI: The only document that is within the contemplation of our constitution is this constitution itself.

Subramanium: The Constitution of J&K was a product which was envisaged because there was a Constituent Assembly. But the way it happened is- the applicable provisions of Indian constitution were brought in J&K constitution and the J&K Constitution had its own chapters.

CJI: While our constitution does speak of a Constituent Assembly of J&K, significantly, after 26th Jan 1957, our constitution doesn't speak of the Constitution of J&K at all.

Subramanium: That polarity, that dual actors being on the scene is a sine qua non under 370.

Subramanium: Art 370 is not a provision of conditional legislation. It is application of provision of Constitution. That by itself is a constitutive act.

Subramanium: If the whole of 370 is a manifestation of constitutional principle of federalism, then it is necessary that both parts of the federal principle must be available for enabling an exercise under 370.