The Supreme Court on Tuesday questioned how it could be argued that Article 370 of the Indian Constitution ceased to operate once the Constitution of Jammu and Kashmir came into existence, PTI reported.
A five-judge bench headed by Chief Justice DY Chandrachud is hearing over 20 petitions challenging the Central government’s decisions to cancel Jammu and Kashmir’s special status and split the erstwhile state into two Union Territories in 2019.
At the time of Jammu and Kashmir’s accession to India, New Delhi had agreed to forming the Jammu and Kashmir Constituent Assembly, a body of representatives of the people who would help frame a Constitution for the state.
The court made the statement after Senior Advocate Dinesh Dwivedi, representing intervenor Prem Shankar Jha, contended that Article 370 did not survive after the Constituent Assembly of Jammu and Kashmir ended and the Constitution of Jammu and Kashmir was enacted on January 26, 1957.
Chandrachud said this would mean that the application of the Constitution of India to Jammu and Kashmir would stand frozen as of January 26, 1957, The Indian Express reported.
“Therefore, no further development in Indian constitutional law can at all apply, according to you, to the state of Jammu and Kashmir after 1957,” he said. “How can that be acceptable?”
Dwiwedi cited a speech by former Prime Minister of Jammu and Kashmir N Gopalaswami Ayyangar to the Constituent Assembly of India that stated that there was a commitment by India to Jammu and Kashmir that its Legislative Assembly would decide on the Constitution for the state.
The bench, however, said that while debates in the Constituent Assembly have a bearing on how the Constitution should be interpreted, no finality can be attributed to them.
Chandrachud then asked whether the lawyer was trying to say that after January 26, 1957, the “dominion of India would have no power to apply any other provisions of the Constitution to Jammu and Kashmir”.
In response, Dwiwedi said that the Centre has powers, but only with respect to subjects in the Union list, according to The Indian Express.
However, Chief Justice Chandrachud questioned this contention. “If Article 370 ceases to operate and Article 1 [name and territory of the Union] continues to operate, and then J&K is an integral part of India, surely the jurisdiction of every democratically elected institution in India is excluded in its application.”
He added: “There has to be then a provision in the Indian Constitution which excludes its application to J&K, and there is none according to your argument.”
The hearing will continue on Wednesday.
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