Supreme Court: How can a temporary provision (Article 370) become permanent? | India News – Times of India

NEW DELHI: Commencing hearing on a batch of petitions challenging the validity of the Centre’s August 2019 decision to scrap Jammu & Kashmir’s special status by hollowing Article 370, the Supreme Court on Wednesday focused on the most basic question — how the constitutional provision, explicitly referred to as temporary, assumed permanence to prohibit its annulment.

This query from a bench of the SC’s top five judges — CJI D Y Chandrachud and Justices Sanjay K Kaul, Sanjiv Khanna, B R Gavai and Surya Kant — was addressed to National Conference leader Mohammad Akbar Lone’s counsel Kapil Sibal, who gave a historical perspective of the Kashmir issue from the 1846 Lahore treaty and said the state “frankly wanted to remain independent but the maharaja of Kashmir had no choice but to sign the instrument of accession because of armed external aggression supported by Pakistan in October 1947”.
The princely state of Kashmir did not sign the instrument of accession like other states which, barring certain exceptions, acceded to India prior to Independence, Sibal said, adding that the maharaja of Kashmir did not sign a revised instrument of accession like other states giving full control over its affairs to the Union government.

“J&K’s relation with India was historically and constitutionally very different from that of other princely states. Article 370 in the Indian Constitution was termed temporary because in 1950, there was no Constituent Assembly of J&K, which was set up later. It concluded framing the state constitution in 1957. The state constitution agreed for integration with India but with a special status,” he said.

“J&K is an integral part of India, but there is a special relationship between India and the people of J&K through Article 370. It cannot be jettisoned by an executive order. The government cannot exercise the will of the people of J&K through Parliament to abrogate Article 370. They assumed the roles of the people of J&K and the Constituent Assembly of the state while abrogating it? Is it constitutionally possible? Is it not an exercise of political power without reference to Article 370 mechanism? Not only was the decision unconstitutional, they arbitrarily, illegally and unprecedentedly converted a state into a UT and that too without the consent of the state legislature,” Sibal argued.
It triggered a volley of questions from each of the five judges. The CJI asked, “What happens when the Constituent Assembly’s life came to an end (in 1957)? Proviso to Article 370(3) says the President can by an order say the article ceases to be in operation. Now, the only safeguard is, before the President does so, the recommendation of the Constituent Assembly is to be taken.”
He further said, “What happens at a point in time when the Constituent Assembly of the state ceases to exist? According to you, after 1957, Article 370 cannot be abrogated at all. If your argument is right, Article 370, which is a temporary provision, assumes permanent character by virtue of the fact that there is no Constituent Assembly in the state after 1957.”

In response to Sibal’s argument that without the recommendation of the Constituent Assembly, which ceased to exist in 1957, Article 370 could not be abrogated, Justice Kaul said, “What you are arguing is that even if the people of J&K wish for abrogation of Article 370, it can’t be done as the Constituent Assembly has ceased to exist. Try to understand the consequences.”
The CJI said, “The acceptance of sovereignty of Dominion of India by J&K was complete in 1947. It did not say in the instrument of accession that ‘we accept the sovereignty of the Union of India for a limited purpose’. It was for all purposes and the acceptance of sovereignty was complete. But they reserved certain rights to themselves over certain legislative subjects. In that sense, the accession and acceptance of sovereignty was complete.”
Sibal said, “It was a temporary provision because it was left to the Constituent Assembly of J&K to decide that. The assembly did not decide. With the Constituent Assembly ceasing to exist, that power to abrogate Article 370 also ceases to exist.”
The CJI asked, “Can an independent entity, which unconditionally accepts sovereignty of another state, still say the Parliament of the country, whose sovereignty it had acceded to, is still restrained in terms of the initial instrument of accession.”

Referring to various clauses of Article 370, the CJI said, “The whole area of concurrence and consultation is confined to the entries in the Union List and the Concurrent List… In other words, the President is given untrammelled power to specify which are the provisions of the Constitution which shall apply to J&K.”
“One thing you (Sibal’s client Lone) must bear in mind is that Article 370 is in Part XXI of the Constitution, which uses three expressions — temporary, transitional and special. Temporary provisions are those which are intended to exist for a limited period, till they get terminated.”
Sibal said, “Article 370 is not temporary. When the Constituent Assembly framed the Constitution of India, there was no Constituent Assembly of J&K, that is why it was called a temporary provision. Suppose the Constituent Assembly decided not to be with India, then what happens?”