Only document binding on Indian Constitution is Indian Constitution itself: Supreme Court in Article 370 case

Constitution of Jammu and Kashmir (J&K) is not mentioned anywhere in the Constitution of India and the only document which is binding on the Indian Constitution is the Indian Constitution itself, the Supreme Court said on Wednesday while hearing the case challenging abrogation of Article 370 of the Constitution [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 further posed questions about scrapping Article 370 by way of an ordinance when the State is under President's rule as provided in Article 356.The questions and remarks by the bench were in response to the arguments of Senior Advocate Gopal Subramanium, appearing for National Conference leader and petitioner-lawyer, Muzzafar Iqbal Khan.Subramanium, appearing virtually, argued that when a proclamation had been issued by the President suspending the erstwhile State Legislative Assembly of J&K, there are implied restrictions on exercising Article 370(3), which provides for repeal of Article 370."Article 370 is not a conditional legislation, it is about applying provisions of the Constitution, it is a constitutive act."This prompted the CJI to remark, "We must note that though the Indian Constitution does speak of a Constituent Assembly of Jammu and Kashmir but it does not refer to the Constitution of Jammu and Kashmir at all. No one ever thought of amending the Indian Constitution to expressly include the Jammu & Kashmir (J&K) Constitution at all. The J&K Constitution does have fetters on powers of the Union or application of Indian Constitution, but there is no such fetter in the Indian Constitution. Suppose Article 356 is in the operation, if any ordinance has to be issued, can the President not issue an ordinance then? The only document binding on the Constitution is the Indian Constitution itself."Subramanium replied that such an assertion is not correct, as many Articles of the Constitution of India state that they do not apply to J&K. "Article 356 is an emergent provision and orders under it cannot be irreversible at all. That is the point here. Article 370 cannot be used for self-destruction and it has been clarified in judgments of this court," he said.Today was the fourth day of the hearing in the case.The matter is being heard nearly four years after the Central government's move in August 2019 that resulted in the revocation of the special status of Jammu and Kashmir (J&K).The erstwhile State was subsequently bifurcated into two Union Territories.The Union Home Ministry recently filed an affidavit before the Court stating that after the abrogation of Article 370, Jammu and Kashmir has witnessed unprecedented stability and progress, with stone pelting and school closures becoming a thing of the past..Subramanium began his arguments by stating that both the Constitution of India and the Constitution of Jammu and Kashmir exist together and speak to each other. "Their complementary existence is the quintessence of the relationship between India and Jammu & Kashmir. Constituent Assembly by its very definition is a primary assembly, which is vested with this extraordinary task of framing the Constitution. That is why the amending power is always called a derived power," he submitted. Hence, the Central government's move to abrogate Article 370 and render the Constitution of J&K infructuous, was impermissible and unauthorised.He said that the Indian Constitution recognises asymmetric federalism the purpose of which is to take note of special conditions and needs of people. "Jammu and Kashmir was not like any other State at the time of Independence. It had its own Constitution. [The Instrument of] Accession was qualified because people were still in the process of making up their mind. Just like we gave to ourselves the Constitution, we must give to the Constituent Assembly the right for theirs." Subramanium also highlighted the last resolution of the erstwhile Constituent Assembly of Jammu & Kashmir."Even though the word temporary appears, the resolution was that the Constitution of India must apply with these modifications. But more importantly, they said Article 370 must continue. I am talking of an affirmative Article, it is not a non formalistic expression. The two Constitutions speak to each other through Article 370. It was not a repository of untrammeled power, but a medium through which the Indian Constitution would apply," he stated.The senior counsel added that it would be incorrect to deem Article 370(3) otiose. "They have expressly affirmed and it was an express act of resolution and it was accepted by the government. I submit that a vexed question as if the constituent assembly was silent on the fate of article 370 was incorrect. They wanted it to continue and they wanted this article to be the language of communication between the two constitutions. So if the constituent assembly of J&K has taken these proactive steps, which is the body public, can we now abrogate this unilaterally? Can we ever abrogate this arrangement?," Subramanium demandedHe stressed that the abrogation was done by amending Article 370(1)(d) through an interpretation clause (Article 367), which was not permissible..Justice Sanjiv Khanna, however, said that Article 370 is flexible and can be modified to make the Indian Constitution applicable to J&K.Subramanium responded to this saying that the J&K Constitution can be overturned or repealed by J&K's legislature but not by Indian parliament. "It is flexible but if decisions are taken without a bilateral consensus or discussion with the State Assembly is not justified," Subramanium argued..After Subramanium concluded, Senior Advocate Zaffar Shah began his arguments on behalf of the Jammu & Kashmir High Court Bar Association. He said de jure sovereignty of J&K was never transferred to India."Article 370 is a special relationship between the State of Jammu and Kashmir and the Union of India. Article 370 mentions making of Constitution and our State retained some part of the statehood and did not surrender everything; when I ask make a law for me, then such a law is made by the Union," he submitted.The hearing will continue tomorrow..Read our detailed coverage of Day 1 of the hearing here and here.Read our detailed coverage of Day 2 of the hearing here and here.Read our detailed coverage of Day 3 of the hearing here and here..[Follow our live-coverage of today's hearing]