The Supreme Court has initiated hearings on a series of petitions challenging the dilution of Article 370 of the Indian Constitution, which previously accorded special status to the erstwhile state of Jammu and Kashmir (J&K). The Constitution Bench, comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, is overseeing the matter.
The ‘Temporary’ Nature of Article 370
Senior Advocate Kapil Sibal argued that Article 370 was no longer a ‘temporary provision‘ and had assumed permanence following the dissolution of the Constituent Assembly of J&K. The bench queried why Article 370 was placed as a temporary provision under Part XXI of the Constitution. Sibal responded,
“The Constitution makers foresaw the formation of the Constituent Assembly of J&K, and it was understood that this Assembly would have the authority to determine the future course of Article 370.”
He further added,
“Thus, in the event of the dissolution of the Constituent Assembly, whose recommendation was necessary to abrogate Article 370, the provision could not be revoked.”
The Significance of the Case
Sibal commenced his arguments by emphasizing the significance of the case, describing it as “historic in many ways.” Highlighting the uniqueness of J&K’s relationship with India, Sibal questioned,
“Can such a relationship be discarded abruptly?”
He stated that the matter would consist of the following four – i) the Constitution of India; ii) the Constitution of India as applicable in J&K; iii) the Constitution of J&K and; iv) Article 370.
The Role of the Constituent Assembly
Sibal argued that understanding the essence of a “constituent assembly” was pivotal in determining the constitutional future of the region. He defined a constituent assembly as a political body, made to draft a Constitution, which was also a political document rather than a legal one. Once in place, all institutions within the framework of the Constitution were bound by its provisions. He asserted,
“Today, the Indian parliament cannot say by a resolution that we are the Constituent Assembly. As a matter of law they cannot because they’re now confined by the provisions of the Constitution.”
The Special Status of J&K and the History of IoA
Sibal provided a historical context surrounding the Instrument of Accession (IoA) and the constitutional relationship between the State of J&K and the Indian government. He began by recounting the circumstances that led to the Maharaja of J&K’s decision to sign the Instrument of Accession in October 1947. Sibal then emphasized the unique nature of the IoA, which granted the State of J&K residuary powers, unlike other Indian states, making it a “truly federal marriage”.
Article 370 Assumed Permanence Post Dissolution of Constituent Assembly
Sibal elaborated upon the meaning of Article 370 being a “temporary provision“. He stated that Article 370 was called a temporary provision only because when the Constitution of India came into force, the Constituent Assembly of Jammu and Kashmir did not exist. However, once the Constituent Assembly came into being, created the Constitution for the State, and then ceased to exist after its tenure from 1951 to 1957, the Article became a permanent feature of the Constitution. He said,
“Yes! That’s the whole point. That’s our case. That is why I said that formation of Constituent Assembly is a political exercise…You cannot jettison the people of J&K and decide.”
Conversion of State into Union Territory
Sibal pointed out that while Article 3 of the Indian Constitution grants the power to change the boundaries of states and even create smaller states through bifurcation, it had never before been used to convert an entire state into a Union Territory. Sibal contended that such a radical change effectively moved the region away from representative democracy and placed it under the direct rule of the central government. He said,
“So you move away from representative democracy, convert it into a Union Territory under your direct rule, and 5 years have passed!”
The hearings on this significant case will continue, with the Supreme Court set to further examine the constitutional validity of the dilution of Article 370.