In a significant legal discourse surrounding Article 370, the Supreme Court of India has been deliberating on its implications and the historical context associated with it. The Constitution Bench, comprising Chief Justice of India (CJI) DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, has been hearing arguments from various senior counsels.
Thank you for reading this post, don't forget to subscribe!Senior Advocate Dinesh Dwivedi, representing the petitioners, initiated the discussion by emphasizing the unique nature of Jammu & Kashmir’s accession to India. He argued that the state’s accession was distinct from other princely states, primarily because J&K did not sign a standstill agreement and joined India post-August 15, 1947. Dwivedi highlighted the special status of J&K, stating,
“Kashmir was different both in terms of accession to the 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.”
During the hearing, CJI Chandrachud posed a critical question,
“Can we say a speech by a Member of Parliament will have an effect of a binding commitment of a nation to the State of Jammu and Kashmir? This will have implications in interpreting the constitutional provision.”
Justice Khanna added,
“We cannot read portions of the debate and come to this conclusion. You need to read the full context. In a debate, there are statements and replies to questions.”
Dwivedi, in his arguments, suggested that Article 370 ceased to operate once the Jammu & Kashmir Constitution was enacted in 1957. He emphasized the commitments made during the formation of Article 370 and remarked,
“We always say that our framers were very wise. But when it comes to the commitments they made- we forget it.”
However, the bench expressed reservations about this line of argument. CJI Chandrachud noted,
“The net consequence would be that the Constitution of India in its application to J&K would stand frozen as of 1957. Therefore, no further development in the Indian constitution can at all apply to J&K according to you. How can that be accepted?”
Senior Advocate Sanjay Parikh, in his submissions, emphasized the sovereignty of Jammu & Kashmir and its expression through the Jammu & Kashmir Constitution. He stated,
“When there is a written constitution, the written constitution becomes supreme.”
Senior Advocate PC Sen, on the other hand, framed his arguments around the historical context, jurisprudence, and constitutional ethos. He highlighted the conscious choice made by Jammu & Kashmir’s predominantly Muslim population to remain a minority in India amidst the violence of partition. Sen asserted,
“Our constitution is also anti-majoritarianism,”
emphasizing the importance of protecting minority rights.
The ongoing debate in the Supreme Court underscores the intricate relationship between Jammu & Kashmir and the Indian Constitution, with Article 370 at its core. As the nation watches closely, the outcome of these hearings will have profound implications for the future of Jammu & Kashmir’s constitutional status within India.
