On argument of Article 370 ‘permanence’, Supreme Court asks: How were amendments made

“If Article 370 works itself out and achieves its purpose once the constituent assembly for the state of Jammu and Kashmir has completed its task, then where was the occasion thereafter to issue constitutional orders post-1957,” asked the CJI while hearing petitions challenging the changes made to Article 370. “We are talking of practice of 64 years,” he said.

The CJI’s comment came after senior advocate Dushayant Dave appearing for the petitioners told the Bench, also comprising Justices S K Kaul, Sanjeev Khanna, B R Gavai and Surya Kant, that Article 370(3), which was a temporary provision in terms of its object to start with, had subsequently acquired a permanent character.

Dave explained that the orders were only for the purpose of clause 1 of Article 370 to extend many amendments from time to time, “because there were many provisions of the Constitution which could not have been made applicable or many laws which may not have been applicable”.

The CJI then referred to proviso (d) of clause 1 which says that matters that are referable to the Instrument of Accession require only consultation with the state government while all other provisions require concurrence. He also pointed out that clause 2 of Article 370 says that if the concurrence is given before the constituent assembly has given its opinion, then it has to be placed before the constituent assembly for its opinion and concurrence.

“Your whole argument is Article 370 has worked itself out once the constituent assembly completes its task. But that would be belied at the least by Constitutional practice because even after 1957 there were orders which were issued… Therefore it would not be correct to postulate that Article 370 achieved its life (and) what is a temporary provision really assumes a state of permanence in the Indian Constitutional fabric,” the CJI said.

Dave said it only refers to those decisions which were taken prior to the coming into existence of the constituent assembly. “To that limited extent the constituent assembly’s approval was sought for,” he said.

The CJI however asked, “But then where is the power to alter the Constitution at all? If your argument is right, then once the constituent assembly in 1957 takes a decision, there is no power to change any provision of the Constitution in relation to the state of Jammu and Kashmir.”

Dave replied that Article 370(3) is only in respect of continuation of 370 or not. “Once the constituent assembly agrees that it should be continued, it becomes some sort of a permanent decision.”

The CJI, however, said “there is one internal inconsistency in accepting” Dave’s submission. “Because if it is right, quay the proviso to clause 3, then the consequence would be that once the constituent assembly completed its task in 1957, there could be no amendment to the Constitution at all under 370(2), which is belied not merely by Constitutional practice but the acceptance by both the state of J&K and GoI that amendments were being made by the Constitution even after 1957 and until the disputed amendment of 2019”.

Dave sought to underline that the concurrence was “limited” to actions taken before the constituent assembly was convened. “But then would the power of the state government to grant its concurrence under the second proviso to clause (d) continue to operate once the constituent assembly completed its task in 1957? Or would that power be exhausted…,” the CJI further asked.

Dave said “they have applied all provisions of the Constitution by 1954. So really speaking, there is nothing left to be done… 370 is fully in operation now”.

“You are right logically. But then how do you explain that there were subsequent amendments to the Constitution by the Constitution Orders,” the CJI persisted with his query to which Dave said “a wrong practice” cannot lead to rewriting of the provision. The senior counsel was apparently referring to the amendments being carried out by way of Constitution orders.

Dave asked whether in that case, the provision can be repealed. He said “it means that 370(3) can’t be repealed” and must be continued.

The CJI told Dave that “there has to be a logical consistency between how you interpret” the various clauses of Article 370. “It has to be in tandem. Either everything remains or everything perishes together”.

The SC also asked Dave whether he is inviting the court to review the wisdom of the decision of the government on the abrogation of Article 370. “You are saying that judicial review should reassess the basis of the government decision that it was not in national interest to continue with Article 370,” said the CJI, adding “judicial review will be confined to a Constitutional violation… there is no doubt that if there is a constitutional violation, this court has jurisdiction to review.”

The hearing will resume on August 22.