The Supreme Court Wednesday said there is "intrinsic evidence" that Article 370 has a "self-limiting character" and it seems to have worked itself out after the term of the Jammu and Kashmir constituent assembly ended in 1957.
A five-judge bench headed by Chief Justice DY Chandrachud was hearing a batch of petitions challenging abrogation of Article 370 that accorded special status to the erstwhile state of Jammu and Kashmir.
"Really speaking, though the Constitution of Jammu and Kashmir framed its relationship with Union of India, unless that relationship was embodied in the Indian Constitution, how will it bind the dominion of India or Parliament for successive years after 1957," the bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, said.
The bench posed questions to senior advocate Gopal Sankaranarayanan, appearing for one of the petitioners Soayib Qureshi, who has challenged the Centre's August 5, 2019 decision to abrogate the provision.
CJI Chandrachud said in his view, Article 370 has two terminal points--first in clause 2 where it has been said that all decisions taken prior to the existence of the constituent assembly shall be placed for its approval and second, in proviso to clause 3, where it was said that the President can issue a notification declaring that Article 370 shall cease to exist or shall be operative with exceptions and modifications only on the recommendation of the Constituent Assembly of Jammu and Kashmir.
"Interestingly, Article 370 is silent on what the regime should be once the constituent assembly is formed and has taken a decision. There is a complete silence. If there is complete silence in Article 370, then Article 370 possibly has worked itself out…," the CJI said.
CJI Chandrachud asked Sankaranarayanan that if this reasoning is to be accepted, then it means that once Article 370 worked itself out, the Constitution of Jammu and Kashmir will fill the void and that it will be the supreme document.
"Now the question will be, can the Constitution of federating unit rise above the source of federating unit," the CJI said.
He added then the point is does the court say that Indian Constitution must be read in a manner to treat the Constitution of J-K as an overriding document over the Indian constitution.
Sankaranaraynan said it is their argument that Article 370 has worked itself out once the constituent assembly ceased to exist and, therefore, it should not have been touched.
"But, if the terminal point of Article 370 is the constituent assembly, then is it not necessary that the work of constituent assembly of the state of J-K has to be embodied in this (Indian) Constitution to make it operational," the bench said.
CJI Chandrachud said that Article 370, which continued to exist in the Indian Constitution, itself points to its self-limiting character.
"It's there in the Constitution but the provision itself points to its self-limiting character. So it is not obliterated but the text itself shows it is a self-limiting character. The operation of Article 370 has to come to an end once the constituent assembly of the state was formed….There is enough intrinsic evidence that Article 370 has itself a self-limiting character," he said.
The bench, however, clarified it is not saying that all constitution amendment orders issued for the application of the provisions of the Indian Constitution with respect to Jammu and Kashmir are unconstitutional.
"We are not saying that all these constitutional orders may have been unconstitutional. It would be improper to say that after all these were issued by statesmen who have operated this nation for the last 70 years, and we should not say that what they did was unconstitutional. It was to further the course of governance in the nation," the CJI said.
Sankaranarayanan contended the Constitution of Jammu and Kashmir has almost all the provisions which Indian Constitution has with nominal changes.
"Does that mean that anything said by the Constituent assembly of the state of Jammu and Kashmir would bind the nation or bind Parliament or the executive here? It had to be embodied subsequent to 1957 in a binding arrangement reflected in our Constitution which was never done," the bench said.
The top court also heard the arguments advanced by senior advocate Menaka Guruswamy, Nitya Ramakrishnan, Sanjay Parikh and PC Sen on behalf of the petitioners.
The hearing remained inconclusive and will continue on Thursday with Attorney General R Venkataramani and Solicitor General Tushar Mehta presenting their arguments on behalf of the Centre.
CJI Chandrachud said in order to maintain continuity of the hearing, the constitution bench will sit on August 28 (Monday), which is otherwise reserved for hearing miscellaneous and fresh matters.
Several petitions challenging abrogation of the provisions of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which split the erstwhile state into two union territories - Jammu and Kashmir, and Ladakh - were referred to a Constitution bench in 2019.
