Article 370 Has “Self-Limiting Character”: Supreme Court

New Delhi: The Supreme Court Wednesday said there is “intrinsic evidence” that Article 370 has a “self-limiting character” and it seems to have worked itself out after the term of the Jammu and Kashmir Constituent Assembly ended in 1957.

A five-judge bench headed by Chief Justice DY Chandrachud was hearing a batch of petitions challenging the abrogation of Article 370 that accorded special status to the erstwhile state of Jammu and Kashmir.

“Really speaking, though the Constitution of Jammu and Kashmir framed its relationship with the Union of India unless that relationship was embodied in the Indian Constitution, how will it bind the dominion of India or Parliament for successive years after 1957,” the bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, said.

The bench posed questions to senior advocate Gopal Sankaranarayanan, appearing for one of the petitioners Soayib Qureshi, who has challenged the Centre’s August 5, 2019 decision to abrogate the provision.

CJI Chandrachud said in his view, Article 370 has two terminal points–first in clause 2 where it has been said that all decisions taken prior to the existence of the constituent assembly shall be placed for its approval, and second, in the proviso to clause 3, where it was said that the President can issue a notification declaring that Article 370 shall cease to exist or shall be operative with exceptions and modifications only on the recommendation of the Constituent Assembly of Jammu and Kashmir.

“Interestingly, Article 370 is silent on what the regime should be once the constituent assembly is formed and has taken a decision. There is a complete silence. If there is complete silence in Article 370, then Article 370 possibly has worked itself out…,” the CJI said.

CJI Chandrachud asked Sankaranarayanan that if this reasoning is to be accepted, then it means that once Article 370 works itself out, the Constitution of Jammu and Kashmir will fill the void and it will be the supreme document.

“Now the question will be, can the Constitution of federating unit rise above the source of federating unit,” the CJI said.

He added that the point is whether the court says that the Indian Constitution must be read in a manner to treats the Constitution of J-K as an overriding document over the Indian constitution.

Sankaranaraynan said it is their argument that Article 370 has worked itself out once the constituent assembly ceased to exist and, therefore, it should not have been touched.
“But, if the terminal point of Article 370 is the constituent assembly, then is it not necessary that the work of constituent assembly of the state of J-K has to be embodied in this (Indian) Constitution to make it operational,” the bench said.

CJI Chandrachud said that Article 370, which continued to exist in the Indian Constitution, itself points to its self-limiting character.

“It’s there in the Constitution but the provision itself points to its self-limiting character. So it is not obliterated but the text itself shows it is a self-limiting character. The operation of Article 370 has to come to an end once the constituent assembly of the state was formed….There is enough intrinsic evidence that Article 370 has itself a self-limiting character,” he said.

The bench, however, clarified it is not saying that all constitutional amendment orders issued for the application of the provisions of the Indian Constitution with respect to Jammu and Kashmir are unconstitutional.

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