New Delhi: The Supreme Court on Wednesday queried a counsel that accession means that Jammu and Kashmir becomes a complete and intrinsic part of India and there will not be any going back on that and observed that by nature Article 370 is very flexible and that constitutional provisions are generally made very flexible so that they could last for long. The apex court said post-1957, neither the government nor legislative assembly of J&K, or for that matter the political establishment in the rest of the country represented by Parliament nobody ever thought of amending the Indian Constitution to bring J&K Constitution expressly within the fold of India Constitution.
A five-judge constitution bench headed by Chief Justice of India DY Chandrachud and comprising justices SK Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, is hearing a batch of petitions challenging the abrogation of Article 370, which bestowed Special Status on the erstwhile state of Jammu and Kashmir. The Chief Justice told senior advocate Zafar Shah, representing one of the petitioners, “Would that be a correct reading, once accession takes place and what happens is that there are certain fetters, certain reservations are retained in the Instrument of Accession that unconditionally recognises the sovereignty of India, but carves out certain areas which it retains...only surrendering the powers to make laws only for defence, foreign affairs and communications…..”
Shah had argued on sovereignty related to the power to make laws and that there are different types of sovereignty and stressed that he was only focusing on the power to make laws, which was retained. The Chief Justice said, “What accession really means, accession means that Jammu and Kashmir become a complete and intrinsic part of India and there will not be any going back on that, isn’t it?
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Shah replied that one view would be that the territory, which was transferred to India means the de-facto Union government is in possession of the state of J&K, but sovereignty is not transferred to the Union of India. The Chief Justice queried the correct reading would be, for that matter take any other state--Uttar Pradesh, Maharashtra, and Tamil Nadu -- there are certain fetters even on the power of Parliament to enact laws. He said that Parliament cannot enact laws at all with respect to List 2 and Parliament can only enact laws on List 1 and List 3. Citing an example of NCT of Delhi, which came in 1992, the Chief Justice said “that Parliament can enact laws on List 1,2,3 …..and there are different models…”
The Chief Justice observed, “What seems to happen with Instrument of Accession is that sovereignty is transferred and recognised in the dominion of India but the power of legislation, which is an incident of sovereignty, but legislation is not the entirety of sovereignty. Legislation is one aspect of sovereignty……Instrument of Accession has that you unconditionally accede to the dominion of India….”.
Shah said Article 370 is a special relationship between Jammu and Kashmir and India and queried, what does the Constitution of India do with a state that has not merged but acceded? During the hearing, Justice Khanna told senior advocate Gopal Subramanium, representing another petitioner, that by nature Article 370 is very flexible, and normally constitutions are flexible with time and space because they're made once and they could last for a long time.
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The bench observed that if one looks at Article 370, it says that modifications can be done and that the Constitution of India as applicable to J&K should assimilate whatever is happening in other parts of the country. The Chief Justice told Subramanium that while our Constitution does speak about the constituent assembly of the state of Jammu and Kashmir, which was then in contemplation at the date of our Constitution on January 26, 1950. “Significantly, after January 26, 1957, our Constitution does not speak of the Constitution of Jammu and Kashmir at all”, said Justice Chandrachud.
Subramanium replied that J&K Constitution was a product which was envisaged because there was a constituent assembly but the way it happened is that applicable provisions of the Indian Constitution were brought into the J&K Constitution and the J&K Constitution had its own chapters.
The Chief Justice said therefore our Constitution speaks of only one institution namely the Constitution of India and the Constitution of India as it applies to the state of J&K subject to modification and exceptions. He said, “Therefore, the only document, the only compact, the only basic document within the contemplation of the Constitution is this Constitution itself…..”.
Subramanium said I agree, and added that the question is was J&K constituent assembly not tasked with the framing of the Constitution that is clear from sub-article 2 of Article 370? The Chief Justice said post-1957, neither the government nor legislative assembly of J&K, or for that matter the political establishment in the rest of the country represented by Parliament nobody ever thought of amending the Indian Constitution to bring J&K Constitution expressly within the fold of India Constitution.
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The Chief Justice said the constitution of J&K imposes limitations on the executive power of the Union and on the legislative power of Parliament. Subramanium contended that the constitution of J&K does not impose any fetter. Subramanium said that orders can be issued under Article 370(1), but they need to be based on bilateralism and added that sans the state legislature, it would not be consistent with constitutional principles to interpret Article 370 unilaterally.
The Chief Justice said there are fetters in the J&K Constitution on the operation of the Union's Constitution and “it is not necessary after 1957, for the Constitution of the Union, which is the only Constitution for the entirety of the country, including J&K, which has acceded to….not necessary for the Indian Constitution to be amended to recognise some other constitution as an intrinsic part of this Constitution”.
The bench observed that Article 370 itself says it can be modified to make the Indian Constitution applicable as it is made applicable to the other parts of the country and reading the earlier part of the 1954 order, it is clear that the Indian Constitution had been adopted with the omissions and modifications. The bench orally remarked that you may call it the J&K Constitution, but what was adopted was the Indian Constitution with exceptions and modifications.
Subramanium contended that when a proclamation under Article 356, President’s Rule, is in operation, limited powers can be exercised under Article 370. He said J&K’s constituent assembly did want abrogation of Article 370. The Chief Justice queried, are you suggesting that when a proclamation under Article 356 is in operation, there is a fetter on the exercise of power under the second proviso of Article 370(1)(d)? Subramanium replied in the affirmative. Subramanium has concluded his arguments. The top court will continue to hear petitions tomorrow.
