“Unacceptable”: Court’s Response To “Article 370 Ceased To Exist After 1957” Argument

Tuesday, the Supreme Court rejected as “unacceptable” the argument that Article 370 of the Constitution ceased to be in effect after the term of the Jammu and Kashmir constituent assembly ended in 1957, following the creation of the state’s constitution.

A five-judge panel led by Chief Justice DY Chandrachud made the remark in response to senior attorney Dinesh Dwivedi’s argument that nothing of Article 370, which granted the former state special status, survived after the J-K Constitution was adopted on January 26, 1957, and the term of the state’s constituent assembly expired. Dwivedi was speaking on behalf of intervenor Prem Shankar Jha.

Jha raised the legal question of whether Article 370 ceased to operate or exist following the enactment of the Constitution of J&K and the dissolution of the constituent assembly. Jha has challenged the August 5, 2019 decision of the Centre to repeal Article 370.

The bench began to question the validity of the submissions as a result of this.

The bench, which also included Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, instructed Dwivedi that the court must examine the discussions held at the Indian Constituent Assembly as well as the intent of the document’s authors in relation to how Article 370 was written.

“I’m debating in a way that is a little different from what my buddies have debated. They want a portion of Article 370 to remain in place. I contend that nothing endures. When the Constitution of Jammu and Kashmir was adopted, all the authority granted by Article 370 was nullified, Dwivedi claimed.

The Indian Constitution and its application to Jammu and Kashmir, according to the Chief Justice of India, would “stand frozen as of January 26, 1957” as a result of the argument, the CJI stated.

Therefore, in your opinion, Jammu and Kashmir’s state constitution cannot be changed in any way to apply to it after 1957. Why is that acceptable? said he.

Dwivedi was warned by the bench, “You are asking us to read what is not in Article 370. It doesn’t seem to be happening as you claim it will be frozen when J-K’s constituent assembly draughts the Constitution. We must consider how Article 370 was framed while examining the arguments of the constituent assembly. The only legal entity in Jammu and Kashmir at the time the Article was written, according to Dwivedi, was the state government. As a result, the provision stated that “consultation and concurrence” should be held regarding matters pertaining to the Union, the Concurrent List, and those that are not covered by the Instrument of Accession.

“The setting up of the constituent assembly was imminent. All decisions made in consultation and agreement with the state administration were therefore required to be presented to the J-K Constituent Assembly. As a result, he argued that Article 370 was only a temporary measure.

According to the senior attorney, it is obvious from the provision and the discussions in the constituent assembly that Article 370 was only temporary and ceased to exist after January 1957.

The bench stated that the arguments made by those opposed to the abrogation, who claimed that the clause had gained permanent status after the state’s constituent assembly’s mandate ended, were in direct opposition to what was being submitted.

This is what’s causing the issue. There should be one nation with one constitution, according to how we have been trained to think for the past 70 years. However, where is that recommended? The Constitution should make this requirement, which it currently does not, the senior attorney added.

Then, CJI Chandrachud questioned whether the court could declare that a member of the constituent assembly’s speech—no matter how significant—represented India’s commitment to Jammu and Kashmir.

The CJI stated, “This will affect how the Constitution is interpreted.” Justice Kaul questioned Dwivedi about his line of reasoning and stated that, in his opinion, Article 370 was a useless instrument that served no purpose.

“However, the clause remained in the Indian Constitution. There have been Constitution Orders (orders that apply the provisions of the Indian Constitution to J-K) both before and after 1957. But nobody considered taking it out. Since there was no positive link between people and Article 370, nothing remains. Is this your defence? Justice Kaul encapsulated Dwivedi’s arguments.

Dwivedi informed the bench that this is established law and that previous actions would not support the legality of a provision.

“The law, as I understand, is that however long a past practice is if it is constitutionally illegal, it cannot be justified. What I am trying to show is the intent of our Constitution framers. We cannot read Article 370 dehors (other than) the intent is my question,” he said.

“According to the law, a past practise cannot be defended if it violates the constitution, regardless of how long it has been in place. I’m attempting to demonstrate the intention of the drafters of our Constitution. I ask because we cannot read Article 370 dehors (other than) the intent. The hearing will proceed on Wednesday despite its continued impasse.

A Constitution bench received several petitions in 2019 that contested the repeal of Article 370’s provisions and the Jammu and Kashmir Reorganisation Act, which divided the former state into Jammu and Kashmir and Ladakh, two union territories.