On Wednesday, August 10, Supreme Court said that there is only one constitution applicable in the country, including Jammu and Kashmir. The five-judge constitutional bench headed by CJI DY Chandrachud stated that although the Indian constitution does speak of Jammu and Kashmir’s constituent assembly, there is no mention of Jammu and Kashmir’s constitution.
“We should note that, while the Indian constitution mentions the Constituent Assembly of Jammu and Kashmir, it makes no mention of the Jammu and Kashmir constitution. No one ever considered amending the Indian Constitution to include the Jammu & Kashmir Constitution explicitly. The J&K constitution limits the union’s powers and the application of the Indian Constitution. However, there is no such constraint in the Indian Constitution. Assume Article 356 is in effect, and if an ordinance is required, can the president not issue an ordinance then?” CJI remarked.
The constitutional bench comprised of justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, Surya Kant, and CJI DY Chandrachud noted that back in 1957, the constitution that the Jammu and Kashmir constituent assembly accepted was the Indian constitution with certain modifications and exceptions.
Notably, counsel Gopal Subramaniam appearing for petitioner Muzaffar Iqbal Khan argued that Article 370 was a provision through which the constitutions of Jammu and Kashmir and India ‘spoke’ to each other.
Senior advocate Subramanium argued that the third clause of Article 370 could not have been invoked to repeal the provision because Article 356 (imposition of President’s Rule) never intended that Parliament could substitute itself for the J&K assembly and grant its agreement to end the state’s special status. “Article 370 cannot be used for self-destruction,” Subramaniam said.
The bench, on the other hand, stated that if the central government can demonstrate in law that no such restraint could be put on it while President’s Rule is in effect, they will be well within their jurisdiction to do what they did in repealing Article 370.
Moreover, Justice Sanjiv Khanna opined that Article 370 is flexible in nature and allows its amendment to make Indian Constitution applicable just as it is made functional in other states.
During the day, Subramanium finished his arguments, and senior lawyer Zafar Shah began his remarks on behalf of the Srinagar Bar Association. Shah contended that the Instrument of Accession signed by the Maharaja of J&K with India in October 1947 amounted to the state shaking hands but not completely surrendering before India. On Thursday, Shah will resume his submissions.
While Shah argued that De jure sovereignty was not transferred to India. CJI Chandrachud said that what has happened is that sovereignty transferred to the dominion of India but the power of legislation on some subjects was retained. Meanwhile, Justice Sanjiv Khanna noted that Jammu and Kashmir had acceded to the Union of India.
Soon after the presidential order in August 2019, a slew of petitions were submitted by legislators from the National Conference party, Kashmiri people, ex-bureaucrats, and several organizations challenging the repeal of Article 370.
