Article 370 Continued To Operate Even After J&K Constituent Assembly Dissolution, Says Supreme Court During Hearing [Day 7 ]

On the seventh day of the Article 370 proceedings before the Supreme Court Constitution Bench, Senior Advocates Dushyant Dave, Shekhar Naphade and Dinesh Dwivedi put their arguments forth before the bench comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. The proceedings witnessed a discussion between CJI DY Chandrachud and Senior Advocate Dave on whether Article 370(3) had ceased to exist or not. The argument raised by Dave was that Article 370(3) had ceased to exist as it had already achieved its purpose. For context, Article 370(3) provides for the means to declare Article 370 as inoperative upon recommendation of the Constituent Assembly of J&K.Dave argued that since the J&K Constituent Assembly no longer existed, Article 370(3) had also ceased to exist. However, Dave insisted that Article 370(1) continued to survive because if the Constitution of India was amended now and a new article was inserted, Article 370(1) would be used to apply it to J&K. To this submission, CJI said–"You say that Article 370 has worked itself out and achieved its purpose once the Constituent Assembly of J&K has completed its task. But that would be belied by constitutional practice. Because even after 1957, there were orders issued progressively modifying the constitution in relation to J&K. This means that Article 370 had continued to operate even thereafter."He added– "If your argument is right, once the Constituent Assembly in 1957 takes its decision, there is no power to change any provision of the Constitution in relation to J&K."Dave clarified that only Article 370(3) ceased to operate and Article 370(1) still continued. However, CJI DY Chandrachud asserted that the Constitution could not be read inconsistently. He stated that sans a constitutional amendment removing the inoperative clauses, the Court could either interpret all clauses to have survived or for all clauses to have perished. To this, Dave said – "Then let it all perish."However, the CJI was not convinced and highlighted that there was over 64 years of constitutional practice applying Article 370 from 1958 to 2018 so the Article had clearly not ceased to exist. Continuing with his arguments, Dave stated that he was only concerned with the process followed and that the Article could have only removed by a constitutional amendment. Treaty Must Be Interpreted In Light Of Article 370: DaveSenior Advocate Dave commenced his submissions by referring to the judgement in In Re: The Berubari Union v. Unknown (1960) to submit that the treaty-making power of the legislature had to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it. He argued that the treaty between India and J&K (Instrument of Accession) signed by Maharaja Hari Singh with the then Governor General of India to conditionally accede to the India was "now transfixed into Article 370." Therefore, the treaty had to be interpreted in the light of the limitations agreed upon by the Maharaja and India which were provided in the Indian Constitution under Article 370.He then asserted that 'constituent power' was necessary to implement a treaty in a specific manner and the same could not be done by 'legislative power'. The said constituent power was provided under Article 368. This also meant that the action had to satisfy the requirements prescribed under Article 368, including obtaining the concurrence of a substantial section of the House which may normally mean consent of major parties of House.Therefore, to change the objectives of the IoA (which was a result of Article 370 abrogation), the parliament could not have resorted to exercising power under Article 356. Clarifying his submissions, he said–"There are two submissions - one, that treaty is to be interpreted in light of what Constitution provides; two, if you want to touch that treaty, you can't do it as a legislative act, you have to do it in exercise of Constituent power." Article 370 Temporary From Perspective Of J&K, Not India: DaveIn his submissions, Senior Advocate Dave contended that Article 370 was temporary from the perspective of J&K, not temporary from perspective of Indian republic. This was because the choice to keep or remove Article 370 was left to Constituent Assembly of J&K and by an extension, the people of J&K. He stated that the Article was never intended to be permanent and the entire power of decision to make it applicable was left to Constituent Assembly. Thus, the President could not now state that Article 370 stood repealed. Arguing further that making a decision on whether Article 370 had to be continued or not was a 'one-time exercise' by the Constituent Assembly of J&K and the same could not be done again and again. He said–"It was a one time exercise. It was not intended to be exercised again and again. Even the Constituent Assembly could not do it again. Suppose they passed a resolution later saying now we want to get...

Article 370 Continued To Operate Even After J&K Constituent Assembly Dissolution, Says Supreme Court During Hearing [Day 7 ]

Padmakshi Sharma

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