Hearing on Article 370: J&K Instrument of Accession no fetter to Parliamentary power after 1957, says SC

The CJI asked, “Once the Constitution of J&K recognises that J&K accedes to the dominion status of India, that it becomes a part of India, would it be correct to say that the IoA ceases to exist as an independent document in that sense? What would be the status of the IoA once the Constituent Assembly of J&K designed and promulgated the J&K Constitution? Would it be subsumed in the state Constitution?”

“Yes,” replied Subramanium, “because the state Constitution itself recognises the accession in 1948. The IoA was for a very limited purpose at that time. But later on, [when] there was the Constituent Assembly, the accession was complete and the Constitution of J&K itself declared that integration to be complete.”

The CJI pointed out that “the reason I asked this was, could it conceivably be that the fetter on power of Parliament under clause (d) of Article 370(1) was also a limited transitional provision which would operate so long as the IoA held the field as an independent document?”

The senior counsel responded that “there is no evidence to that”.

The CJI then said that “once the IoA gets subsumed in a post-Constitution document, evincing a transfer of power, then to the extent the IoA itself has been subsumed, the fetter on the power of Parliament cannot be relatable to the IoA but has to be found somewhere else”.

Hearing arguments for the fourth day, the SC also wondered whether it was not necessary to amend the Indian Constitution after 1957 to bring the J&K Constitution within its fold. The CJI said: “While our Constitution does speak of a Constituent Assembly of J&K, significantly, after 26th January 1957, our Constitution doesn’t speak of the Constitution of J&K at all. Post-1957, neither the government or the Legislative Assembly of J&K, nor for that matter the political establishment…represented by Parliament, ever thought of amending the Indian Constitution to bring the J&K Constitution expressly within the fold of the Indian Constitution?”

Stating that “it may not be really necessary”, Subramanium said, “The Constitution of J&K is intended to be applicable to J&K. It is a Constitution because it was framed by a Constituent Assembly”.

But, the CJI said, the J&K Constitution “imposes limitations on the executive power of the Union and the legislative power of an organ of the Union, namely Parliament”.

He said: “It does say that the residuary power will vest with the state. It is a clear fetter. So there are fetters in the J&K Constitution on the operation of the Union Constitution…”

Subramainum replied that the fetters were placed by way of the 1954 Constitution order. “The 1954 order and J&K Constitution speak to each other,” he said. “There are some carve-outs for J&K, but those are volitionally done…”