Can't Accept Argument That Article 370 Ceased To Exist Post J&K Constitution Enactment, Says Supreme Court During Hearing [Day 8]

Closing in on the eight day of arguments in the Article 370 pleas, the Supreme Court Constitution bench expressed its reservations towards accepting the argument that Article 370 had ceased to exist once the J&K Constitution was framed. The bench comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, stated that the consequence of Article 370 ceasing to exist once the J&K Constitution was framed would be that the Constitution of India in its application to J&K would stand frozen as of 1957 and no further development in Indian constitution could then apply to J&K. On this argument, the CJI had expressed his disapproval asking, "How can that be?"The eight day saw arguments raised by Senior Advocate Dinesh Dwivedi, Senior Advocate CU Singh, Senior Advocate Sanjay Parikh, and Senior Advocate PC Sen.Kashmir Was 'Different': DwivediThe arguments of the day commenced with Senior Advocate Dinesh Dwivedi who asserted that the accession of J&K with India was distinct from that of other States as J&K never signed a standstill agreement and it acceded with India after August 15, 1947. On the other hand, other princely states ceded all their sovereignty in an unqualified manner with India by signing the standstill agreement which was a pre-condition to the accession. He then stated that J&K acceded to India as a Part B state like all the other Princely States. Article 238, which dealt with the application of provisions of Part VI to States, was made applicable to only Part B states. Dwivedi highlighted that Article 238 “keeps the promise of applying the constitution of the State to the Constitution of India” and was required for all Indian States to merge unconditionally into India. However, Article 238 was excluded in its application to J&K and was never made applicable to the State. Dwivedi asserted–"That speaks volumes about the autonomy of the state. Our basic theme is that Kashmir was different. Kashmir was different both in terms of accession to dominion of India where it ceded at a different time as an independent state or a nation, and it was different in the sense that it didn't merge unlike the other states. The conditions added in favour of Kashmir- that we're not bound by the Constitution or the future constitution, the internal sovereignty rests with the ruler, the Union of India cannot acquire land in Kashmir- these were different."He then stated that sovereignty was retained by the Raja of Kashmir in the Instrument of Accession. In this context, he said that the idea of sovereignty was a variable concept and consisted of two factors- internal and external. Thus, merely because a State may have ceded external sovereignty which included defence, external affairs, and communications, it did not amount to ceding of internal sovereignty as well. Continuing this line of argumentation, he said that Kashmir did not lose all internal sovereignty just because it acceded.Article 370 Ceased To Operate Once J&K Constitution Was Enacted: DwivediIn the next limb of his arguments, Dwivedi stated that Article 370 ceased to operate once the Constitution of J&K was enacted in 1957. Accordingly, all the powers conferred under Article 370 (to abrogate it) also ceased to operate when the J&K Constitution was made. In that context, he stated that it was important to keep in mind the object of Article 370 and the commitments made. He said– "We always say that our framers were very wise. But when it comes to the commitments they made- we forget it."To support his argument, Dwivedi referred to a speech of Dr Gopalaswami Ayyangar made during the Constituent Assembly debates. Referring to Article 370 as an 'interim arrangement', he said that the final decision with regard to the jurisdiction of the Union and the Indian Parliament over Kashmir as well as the Centre and State relations was always meant to be taken by the Constituent Assembly. Still referring to Dr Ayyangar's speech he stated that at the time of formation of Article 370, neither the Constituent Assembly, nor the State Legislative Assembly for J&K had existed. Thus, the Constitution makers were forced to consult the government till the Constituent Assembly of J&K was formed. "This leaves no room for doubt. All provisions of consultation and concurrence with government of Kashmir cease to operate once the Constituent Assembly starts. All this argument that it has become permanent - we are giving meaning to the word 'temporary' used in the Constitutional provisions de hors the context," argued Dwivedi. Referring to Constituent Assembly as the most august assembly, with "men who fully knew what Constitution means", Dwivedi asserted that when they say Kashmir should frame their own constitution, they couldn't have implied anything else. At this juncture, the CJI expressed his reservations accepting that the speech by Dr Ayyangar represented the whole country's commitment to J&K. He asked–"Can we say that a speech made by an...

Can't Accept Argument That Article 370 Ceased To Exist Post J&K Constitution Enactment, Says Supreme Court During Hearing [Day 8]

Padmakshi Sharma

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