Supreme Court Discusses 'Self-Limiting' Nature Of Article 370, Asks How J&K Constitution Can Bind Indian Parliament [Day 9]

The ongoing hearings regarding the petitions challenging the abrogation of Article 370, which granted special autonomy to the region of Jammu and Kashmir, reached their ninth day today. The proceedings are being conducted by a Constitution Bench led by Chief Justice DY Chandrachud and comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.

As the petitioners presented their concluding arguments, the bench engaged the counsel with insightful questions. Particularly noteworthy were Chief Justice Chandrachud's oral observations concerning the 'self-limiting' nature of Article 370 and Article 370 seemingly being a 'pro-tem provision' until further actions could be taken. In the hearings, the CJI asked Senior Advocate Gopal Sankaranarayanan, who was appearing for the petitioners, if the Constitution of J&K would be seen an overriding document which would be applied in preference to the Indian Constitution and whether decisions made by the Constituent Assembly of J&K could bind the Indian Parliament. 

Can J&K Constitution Override Indian Constitution And Bind Indian Executive/Parliament?

Pondering upon the interpretation of Article 370, CJI DY Chandrachud remarked that the Article indicated 'two terminal points'. He stated that while Article 370(2) and (3) both referred to the Constituent Assembly and its recommendation, interestingly, Article 370 was silent on what should happen after the Constituent Assembly was formed and had taken its decision. He stated that if Article 370 was completely silent about this, then it might mean that Article 370 had finished its role after the Constituent Assembly was dissolved. The CJI said that this brought up two ideas: one that the Constitution of J&K could fill the gap left by Article 370, and the other was whether J&K constitution could ever be more powerful than the Indian constitution.

He said–

"If there is complete silence in Article 370, then 370 has worked itself out both in relation to clause (1), and in relation to (2) and (3). In which case, there are two options - your line of thinking would be that Constitution of J&K fills the void. The other view possibly is– Can the Constitution of a federated unit ever rise above the source of the federating unit?"

He further added–

"If the terminal point of Article 370 is the Constituent Assembly's work, then is it not necessary that the work of the Constituent Assembly of the State of J&K has to be embodied in Indian constitution to make it operational?"

To this, Sankarnarayanan responded that it was not necessary because it was not provided for in the Indian Constitution.

It may be noted that in the earlier days of the hearings, Senior Advocate Sibal had asserted that Article 370 had assumed permanence post the dissolution of the Constituent Assembly of J&K and that the Constituent Assembly had consciously chosen not to abrogate Article 370. Upon this submission, the bench had asked him how the Constitution of J&K could give permanency to a provision of the Constitution of India. CJI Chandrachud had even stated then that as per Article 147 of the Constitution of J&K, its provisions were to be treated as subordinate to the Indian Constitution. On the following day, the bench had again raised the query of whether Article 370, which was envisaged as a temporary provision, could be converted into a permanent provision merely by proceedings of J&K assembly or was there an act required by the Indian Constitution - in form of constitutional amendment by the Parliament for the same. 

Today, CJI elaborated further his query by asking–

"If a text itself shows its self limiting character, the whole operation of Article 370 has to come to an end once the Constituent Assembly comes to an end. Is there not intrinsic evidence that 370 itself is self limiting once the Constituent Assembly has come to an end? Then do we say that our constitution must be so read to see the Constitution of J&K as an overriding document which we'll apply in preference to our Constitution? Though the Constitution of J&K framed its relationship with the Union of India, unless that relationship is embodied in the Indian Constitution, how will it bind the dominion of India or parliament and the executive?"

Sankaranarayanan responded to this query by stating that when the Indian constitution specifically recognises a Constituent Assembly for only one state in the country and says that the said Constituent Assembly had the task of deciding to abrogate the clause or not, the Constituent Assembly in question and it's task were constitutionally recognised. 

The CJI then asked–

"Does that mean that anything said by the Constituent Assembly of J&K would bind the parliament?"

Sankaranarayanan responded to the same in a negative but added that Article 370 was a bridge between India and J&K.

Article 370 Was Never Intended To Be Permanent

Referring to the provisions of Article 370(1)(c), the CJI pointed that it was specified that Article 1 along with Article 370 shall apply in relation to J&K. He remarked that this was despite Article 1 being a permanent feature of the Constitution and already applying to all states of the country including J&K. He said–

"Why did Article 370(1) contain a specific reference that Article 1 applies? The reason was that during that interim period when there was a power to modify provisions related to Instrument of Accession, Article 1 could also have been modified with concurrence. So it was made clear that Article 1 could not be modified. This is a clear indicator of the fact that 370 was never intended to be permanent." 

He added that the Union of India followed the experience of the Constitution Orders and moved on with 'a very convenient procedure', that was, having Constitution Orders apply the Constitution of India to J&K and progressively bring J&K into main stream. He added– "These were, in that sense, pro-tem provisions until further actions could be taken."

The Court will start hearing the Union's arguments from tomorrow.

Also Read - Explainer On Article 370 Case In Supreme Court : Issues & Arguments Regarding J&K Special Status Abrogation