Supreme Court: If J&K statute key, why is Constitution silent on it?

NEW DELHI: If the J&K Constitution was so important, why was it never mentioned post-1957 in the Indian Constitution, the basic and primary document for the Union and the states? The Supreme Court on Wednesday posed this searching question as challengers to demobilisation of Article 370 persisted with the line of argument that the administrative autonomy that the erstwhile state of J&K had enjoyed under the 1957 state Constitution could not be curbed or reversed independently of the "will of the people of Jammu & Kashmir".

A bench of CJI D Y Chandrachud and Justices Sanjay K Kaul, Sanjiv Khanna, Bhushan R Gavai and Surya Kant said the provisions of the Indian Constitution have been applied almost in its entirety through Constitution (Application to J&K) Orders, but with no reference to the J&K Constitution. "Post-1957, neither the J&K government nor the state assembly ever recommended, nor the Union government thought of amending the Indian Constitution to bring in reference to J&K Constitution in the Constitution (Application to J&K) Orders," the bench said.

Arguing for those questioning the validity of the August 5, 2019 decision of the Centre to scrap the special status of J&K and divide the territory into two UTs, senior advocate Gopal Subramaniam said Article 370 embodied the promises of autonomy and decision-making being vested with the people of J&K.

Article 370 facilitated a dialogue between the J&K Constitution and the Indian Constitution. Hence, it cannot be abrogated,” he said. CJI Chandrachud agreed with Subramaniam that the areas of volitional administrative autonomy the Centre had conceded to J&K were substantially eroded through the issuance of COs, but also pointed out that the Constitution put no restraint on the Centre’s powers in this regard. “What is there in the Constitution that restrains the Union government’s power to modify the COs?” he asked.

“When the state is under President’s rule after dissolution of the assembly, can the governor not promulgate an ordinance in J&K? Can the President not issue an ordinance applicable to J&K. What can be the restraint,” the CJI asked.

Appearing for the state bar association, senior advocate Zafar Shah said that like majority of Kashmiris, he too grew up with Article 370 and its sudden disappearance was shocking. He cited the Instrument of Accession signed by Maharaja Hari Singh in October 1947, giving away sover eignty only over defence, communication and foreign relations. Sovereignty over the rest of the subjects and law-making power over these had been retained by the maharaja under the Instrument of Accession, he said.

The CJI, however, expressed doubt about the cruciality of the Instrument of Accession for arbitrating whether the Centre could exercise only limited sovereignty over J&K.

Shah said that the maharaja wanted to retain independence and autonomy within the state, which was evident from the Instrument of Accession signed by him. The arguments will continue for the fifth day on Thursday.