"How can no further development in Indian constitutional law can apply to J&K, be accepted", asks Supreme Court

 A five-judge bench led by Chief Justice of India (CJI) D Y Chandrachud sought to know from a counsel questioning the dilution of Article 370 of the Constitution as to what would be net consequence if the Constitution of India in its application to J&K would stand frozen as of 1957. 

"How can that be accepted, no further development in Indian constitutional law can apply to J&K," the bench asked.

The Bench headed by Chief Justice of India, D Y Chandrachud, and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant, maintained that the Article 5 of the Jammu and Kashmir Constitution showed that the Indian Constitution would apply to J&K in all matters except those with respect to which Parliament has power to make laws for the State.

In response to submissions and argument from senior counsel Dinesh Dwivedi, representing senior journalist Prem Shankar Jha, at one point the CJI said: "Net consequence will be application of Constitution of India will be frozen to the state of J&K after 1957. How can this be permitted? 

"If J&K is integral part of India, then surely there has to be provisions of the democratically elected government of the country. There are no provisions in the Indian Constitution which bars its applicability to the J&K if your contention is taken". 

There was also a debate on the power of the centre in turning states into UTs.

Spearheading this argument, Senior Advocate CU Singh said, "Please see the enormity of effect that will be there if States are allowed to converted into UTs. Please see articles 294 and 295. By a simple ordinary majority under Article 3, all other constitutional rights which are also part of basic structure is also wiped out.

CJI DY Chandrachud said, "We are conscious that we are asking you to wrap up faster but we must realise that the bench is also reaching a level of mental saturation where now we need answers from the other side (Central government). So that is the reason. We will give you some more time in rejoinder. 

The bench said that Article 5 of the J&K Constitution says the executive and legislative power of the State extends to all matters except those with respect to which Parliament has the power to make laws for the State under the provisions of the Constitution.  

The bench said it postulates that the Indian Constitution does apply to J&K. 

The bench also told Dwivedi that unless we accept that “Article 370 continued till 2019, there would be no trammel on the jurisdiction of Parliament (as per Article 5).”

Citing Article 5 of J&K, the bench further said but for Article 370, Parliament would have power to make laws on all aspects in List 1 and List 3: “If Article 370 goes, where is the limit of power of Parliament?”  

At one point  Justice S K Kaul told Dwivedi: "Constituent Assembly debates you are saying shows that Article 370 had dissolved itself."

Then Dwivedi remarked, "It shows the intention of the framers of the Constitution". 

Then CJI Chandrachud said, "There are no provisions in the Indian Constitution which bars its applicability to the J&K if your contention is taken".

CJI also asked during hearing: "Which are the features of Art 370 which indicate that it ceases to exist post the formation of J&K constitution?"

Dwivedi said, "Article 238 shall not apply in relation to 370. It has not been changed because there is no power to change it. 1952 onwards, clause (3) hasn't been used".