Supreme Court: Can’t accept Art 370 ceased to apply in 1957

The CJI was responding to submissions of senior advocate Dinesh Dwivedi, who, while arguing against changes made by the government to Article 370, said the provision had ceased to operate after the J & K Constituent Assembly went out of existence in January 1957.

Dwivedi cited the speech by N Gopalaswami Ayyangar to the Constituent Assembly of India on the “commitment” made to the people of J&K to buttress his argument that the country cannot return from it.

The bench, also comprising Justices S K Kaul, Sanjeev Khanna, B R Gavai and Surya Kant, however, said while Constituent Assembly debates have a bearing on the interpretation of the Constitution, no amount of finality can be attributed to them.

Dwivedi argued that if the debate says there is a “commitment that J&K Legislative Assembly would decide the Constitution, what is the use of the commitment made, and what is the use of the Constitution when it cannot finally lay down anything?”

CJI Chandrachud said, “You are now trying to read ingredient of finality from Constituent Assembly debates. How can that be?”

The CJI also asked whether the speech by an individual member of the Constituent Assembly, “however weighty”, can represent a “commitment by the nation or the dominion of India to the state of Jammu and Kashmir”. This, he said, “would have a bearing on the interpretation of the Constitution”.

How can it be raised to the point of it being a binding commitment, the CJI asked.

Dwivedi responded that it was “not by any member, but on behalf of the person who answers all queries on the amendments made — there’s a difference”.

Justice Khanna said, “We can’t read a portion of the debate without going through the whole of it. During a debate, there can be statements and then explanations to those statements. Once you [are] part of the nation, it’s the entire nation that you are part of.”

Dwivedi, however, said, “This is what is creating a problem. Our thinking, perhaps, which we have been tuned to think for the last 70 years, is that one nation, one Constitution. But where is that prescribed…the Constitution does not say so.”

Justice Kaul said, “Your submission is that 370 is a defunct provision. No purpose in having it there, yet it continued to be there. Everything would be decided by J&K Constitution. Constitution (Application) Orders have been issued from time to time pre- and post-1957. Yet, nobody thought about it…”

On the Constitution (Application) Orders, Dwivedi said that “past practices, if illegal, cannot be Constitutionally justified”

The CJI asked whether he was trying to say that “after the Constituent Assembly took its decision on January 26, 1957, the dominion of India would have no power to apply any other provisions of the Constitution to Jammu and Kashmir”.

Dwivedi responded that the Centre has all the power but only in respect of subjects in the Union List.

But the CJI said, “If Article 370 ceases to operate and Article 1 continues to operate, and then J&K is an integral part of India, surely the jurisdiction of every democratically elected institution in India is excluded in its application. There has to be then a provision in the Indian Constitution which excludes its application to J&K, and there is none according to your argument”.

Questioning Dwivedi’s submissions, the CJI said, “Look at the problem with your argument. Article 5 says legislative and executive powers of the State would extend to all matters except those with respect to which Parliament has power to make laws for the state. That means provisions of Constitution of India; that takes us to the Constitution of India. That postulates that the Indian Constitution does apply to J&K.”

Dwivedi said that the 48th Presidential order of 1954 elaborately determines the scope of Parliamentary jurisdiction.

The CJI was quick to point out that he has been arguing that Constitution (Application) Orders are contrary to the Constitution.

“But then you have been arguing that these CO’s are matters of constitutional practice and are contrary to the Constitutional provision,” he said. “If we accept your argument and don’t look at the Constitutional orders, then this is the consequence that follows as sequitur of your argument — that there would be no restraint on the power of Parliament then.”