Article 370 silent on regime

The Supreme Court of India, presided over by Chief Justice DY Chandrachud along with a five membered judge panel, was reviewing a series of petitions that contested the repeal of Article 370, granting unique privileges to the former state of Jammu and Kashmir.
The highest court asserted that there’s “intrinsic evidence” suggesting that Article 370 possesses a “self-limiting character” and appears to have resolved itself after the conclusion of the Jammu and Kashmir Constituent Assembly’s term in 1957.
The court panel, headed by Chief Justice DY Chandrachud, was addressing a cluster of petitions challenging the elimination of Article 370, which provided distinct status to the erstwhile state of Jammu and Kashmir.
Chief Justice Chandrachud, along with Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, raised the question about how the relationship established by the Constitution of Jammu and Kashmir with the Union of India could extend beyond 1957 without being incorporated into the Indian Constitution.
The bench queried senior advocate Gopal Sankaranarayanan, representing petitioner Soayib Qureshi, who contested the Centre’s decision on August 5, 2019, to nullify the provision.
Chief Justice Chandrachud offered his viewpoint that Article 370 has two key points of conclusion:

• First, in clause 2, where it’s mentioned that all decisions made before the existence of the constituent assembly need its approval.
• And second, in the proviso to clause 3, which states that the President can issue a notification declaring the cessation or operation of Article 370 solely upon the recommendation of Constituent Assembly of Jammu and Kashmir.

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The Chief Justice noted that Article 370 remains silent about the course of action once the constituent assembly is formed and reaches a decision, implying that Article 370 might have served its purpose.

Chandharchud inquired whether, based on this rationale, the Constitution of Jammu and Kashmir would take over, becoming the supreme document. He also pondered whether the Constitution of a federating unit could surpass the source of that unit.

He further questioned whether the Indian Constitution must be interpreted in a way that treats the Constitution of Jammu and Kashmir as an overriding document over the Indian constitution.

Sankaranaraynan argued that Article 370 had run its course once the constituent assembly ceased to exist and therefore should not have been abolished.

However, the bench debated whether the end point of Article 370 was indeed the constituent assembly, and stressed the need for the constituent assembly’s work to be integrated into the Indian Constitution to become effective.

The court underscored that Article 370, while still present in the Indian Constitution, alludes to its own inherent limitation.

The bench clarified that it doesn’t assert that all constitutional amendment orders related to the application of Indian Constitution provisions in Jammu and Kashmir are unconstitutional.

Sankaranarayanan argued that the Constitution of Jammu and Kashmir largely mirrors the provisions of the Indian Constitution, with only nominal differences.

The court listened to arguments from advocates Menaka Guruswamy, Nitya Ramakrishnan, Sanjay Parikh, and PC Sen representing the petitioners.

The hearing remained inconclusive and is set to continue, with Attorney General R Venkataramani and Solicitor General Tushar Mehta presenting their arguments on behalf of the Centre.

Multiple petitions challenging the repeal of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which divided the former state into two union territories – Jammu and Kashmir, and Ladakh  respectively ,were referred to a Constitutional bench in 2019.

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