Article 370 silent on regime after Constituent Assembly of J&K ceased to exist: Supreme Court

The regime to be followed once Jammu & Kashmir's Constituent Assembly ceased to exist is not clear, the Supreme Court orally observed on Wednesday [In Re: Article 370 of the Constitution]..A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant made the observation while hearing submissions of Senior Advocate Gopal Sankaranarayanan, who argued for the petitioners challenging the abrogation of Article 370 of the Constitution.Sankaranarayanan submitted that the abrogation process had been a series of abuses on the Constitution.CJI Chandrachud said in response,"Article 370 is silent on what the regime should be when the Constituent Assembly ceases to exist. This means that Article 370 has worked itself out in terms of Articles 1, 2 and 3. If that happens then there are two options: either the Constitution of J&K will be supreme and the other will be - can the Constitution of a federating unit be superior to the Constitution of the Union? If the terminal point of Article 370 is the Constituent Assembly's works, so is it not that the Constituent Assembly of J&K has to be embedded in our assembly." The CJI added that if Article 370 works itself out, its operation came to an end when the Constituent Assembly had come to an end. "The proviso to 370(3) - it says "declare that this Article ceases to operate or subject to exceptions and modifications". Now this exception modification is in clause (d) and then in clause (3). Is Article 370 in itself not self-limiting when the Constituent Assembly ceases to exist, and if not, are we saying that the Constitution of J&K overrides our Constitution? Is it not? Does it mean that anything said by the Constituent Assembly of J&K binds our nation and our parliament? But that did not happen. The reason was to merge J&K with the rest of the country.".Sankaranarayanan appeared for petitioner Soayib Kureshi, an advocate-on-record at the Supreme Court."This is a case not for Kashmir or Kashmiris, but the abuses the executive can help on the Constitution with the means adopted as here. This is an encroachment into the Constitution," he said.The CJI then said that Article 1, which says that India is Union of States, is a permanent feature of the Indian Constitution."What was the reason why Article 370(1) called for application for Article 1 of the Constitution? It is because during that interim period where other Articles could be modified, Article 1 can never be modified. This shows that Article 370 was never of permanent nature. This was a convenient expedient to have COs applicable to J&K and with time to make J&K a complete and integral part of India."In response, Sankaranarayanan said that Article 368 does not allow repeal of the Constitution."It will be difficult for this Court to give a verdict that the Constituent Assembly is resurrected. This case is effectively about whether a power exists and whether the procedure is laid to exercise that power followed.".Wednesday was the ninth day of the hearing in the petitions challenging the Central government's move in August 2019 that resulted in the revocation of the special status of Jammu and Kashmir (J&K).Pertinently, the Central government today told the Bench that it has no intentions to tinker with the special provisions in the Constitution applicable to the North-Eastern states of the country..Senior Advocate Nitya Ramakrishnan for the petitioners argued that the assumption that Article 370 is temporary is fallacious."Integration is not a measure of how much control the Centre has, it is not a function of Central control of power. It is pernicious to say that Central ruled areas are more united than others; this assumption that J&K is not integrated is not correct. Once they acceded, they became Indians."For abrogation of Article 370, the recommendation had to have emanated from an authority that is equal in mandate to the Constituent Assembly of J&K, she added."We are told that situations were not conducive for elections. This is malice and this power under Article 356, which is subject to appraisal by state legislature, has been used to destroy the state legislature. Now the people of J&K have no state legislature, and ensured that there is no future legislature also.".Advocate Warisha Farasat appearing for the petitioners, said that the act of abrogation could not have been gone about in the 'casual' manner."For abrogation, it was only left to the Constituent Assembly and there is no other way to reconcile it. What happened during the abrogation - the three Chief Ministers were in detention. This is malice in law and we determine this by actions surrounding the abrogation itself."Advocate Zahoor Ahmed Bhat, appearing for a J&K professor, said that the abrogation was a violation of the rights of the erstwhile State as well as a blot on cooperative federalism..As the hearing drew to a close, the CJI said that after Thursday's hearing, the Bench will assemble to hear the matter on Monday which is a miscellaneous day at the Court.Arguments by Attorney General R Venkataramani, Solicitor General Tushar Mehta and Senior Advocate Harish Salve for the Central government, will commence on Thursday..Read our coverage of Day 1 of the hearing here and here.Read our coverage of Day 2 of the hearing here and here.Read our coverage of Day 3 of the hearing here and here.Read our coverage of Day 4 of the hearing here and here.Read our coverage of Day 5 of the hearing here and here.Read our coverage of Day 6 of the hearing here and here.Read our coverage of Day 7 of the hearing here and here.Read our coverage of Day 8 of the hearing here and here.[Follow our live-coverage of today's hearing]