The ongoing hearings regarding the challenge to the abrogation of Article 370, which granted special autonomy to Jammu and Kashmir, have reached their ninth day. These 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.
Chief Justice’s Deep Dive: Unraveling Article 370’s ‘Self-Limiting’ Nature and Implications on J&K’s Autonomy
As the petitioners presented their concluding arguments, the bench posed insightful questions. Chief Justice Chandrachud’sobservations about the ‘self-limiting’ nature of Article 370 stood out. He raised the question of whether Article 370 was merely a ‘pro-tem provision’ until further actions could be taken. During the hearings, Chief Justice Chandrachud engaged Senior Advocate Gopal Sankaranarayanan, representing the petitioners, asking whether the Constitution of J&K could hold more power than the Indian Constitution and whether decisions by the Constituent Assembly of J&K could bind the Indian Parliament.
Chief Justice Chandrachud pondered the interpretation of Article 370 and noted that the Article seemed to have ‘two terminal points’. He pointed out that while Article 370(2) and (3) referred to the Constituent Assembly and its recommendation, Article 370 was silent on what should follow once the Constituent Assembly had taken its decision. He suggested that if Article 370 remained silent on this matter, it might mean that Article 370’s role concluded after the Constituent Assembly dissolved. This brought up two possibilities: either the Constitution of J&K could fill the gap left by Article 370, or the J&K constitution might have more power than the Indian constitution.
The Power Play: Can J&K’s Constitution Override India’s and Bind Its Parliament?
He stated, “If Article 370 is completely silent, then it has worked itself out both for clause (1) and (2) and (3). In that case, there are two options – one is that the 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?”
Chief Justice Chandrachud 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 the Indian constitution to make it operational?”
From Silence to Supremacy: Article 370’s Evolution and Intent
Sankaranarayanan responded that this wasn’t necessary, as it wasn’t provided for in the Indian Constitution. In earlier hearings, Senior Advocate Sibal had argued that Article 370 became permanent after the Constituent Assembly dissolved, but the bench questioned how the J&K Constitution could give permanence to an Indian constitutional provision. Chief Justice Chandrachud also mentioned that as per Article 147 of the J&K Constitution, its provisions were subordinate to the Indian Constitution. This led to the query of whether Article 370, a temporary provision, could become permanent through proceedings of the J&K assembly or if an act by the Indian Parliament was required for the same.
Chief Justice Chandrachud further expanded 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?”
Article 370: The Enigma of Permanence and the Path to Mainstream Integration
Sankaranarayanan replied that the Constituent Assembly of J&K and its task were constitutionally recognized, but what was said by it wouldn’t necessarily bind the Indian Parliament.
Chief Justice Chandrachud referred to Article 370(1)©, which specified that Article 1, a permanent feature, would apply to J&K. He remarked that this was interesting since Article 1 already applied to all states, including J&K. He explained that during the interim period when modifying provisions related to the Instrument of Accession was possible, Article 1 could’ve been modified with concurrence. But it wasn’t, indicating that Article 370 wasn’t intended to be permanent.
He mentioned that the Union of India used Constitution Orders to gradually apply the Indian Constitution to J&K and integrate it into the mainstream. He described these as ‘pro-tem provisions until further actions could be taken.’
Towards Resolution: Next Steps in the Hearing
The Union’s arguments will be heard from the following session onward. This discussion showcases the intricacies around Article 370’s nature and its implications for Jammu and Kashmir’s autonomy within the Indian constitutional framework. The thoughtful queries posed by Chief Justice Chandrachud shed light on the complex legal landscape surrounding Article 370 and its evolving role in the relationship between J&K and the Union of India.