The Supreme Court on Wednesday asked why the Union of India, the Legislative Assembly of Jammu and Kashmir or the political establishment in the rest of the country had never bothered to bring the Constitution of Jammu and Kashmir within the fold of the Constitution of India.

The court said the Jammu and Kashmir Constitution had, over the years, limited the executive powers of the Union of India and restricted the legislative reach of the Parliament.

Jammu and Kashmir was the only State to have a separate Constitution. It was enacted on January 26, 1957 and abrogated by the President on August 5, 2019.

“Post 1957, neither the government nor the Legislative Assembly of Jammu and Kashmir, or for that matter, the political establishment in the rest of the country thought of amending the Indian Constitution to bring the Jammu and Kashmir Constitution expressly within the fold of the Indian Constitution,” Chief Justice of India DY Chandrachud, heading a Constitution Bench, addressed senior advocate Gopal Subramanium, who is appearing for a petitioner.

The Bench is hearing a series of petitions challenging the President’s abrogation of Article 370 from the Indian Constitution. Presidential orders, in August 2019, had rendered infructuous the J&K Constitution and Article 35A, which was introduced into the Indian Constitution through The Constitution (Application to Jammu and Kashmir) Order, 1954.

‘Complete authority’

The 1954 Constitution Order, by inserting Article 35A into the Indian Constitution, gave the Jammu and Kashmir State Legislature “complete authority” to decide the ‘permanent residents’ of the State and grant them special rights and privileges in State public sector jobs, acquisition of property within the State, scholarships and other public aid and welfare programmes. The limitations enumerated in Article 35A were reflected in the J&K Constitution.

“Was it at all necessary to amend the Indian Constitution in order to recognise some other Constitution? Was it necessary to impose fetters on the power of the Parliament? “ the Chief Justice asked Subramanium.

Subramanium said “the Constitution of India and the Constitution of J&K spoke to each other”. Their existence complemented each other. The birth of the J&K Constitution could be traced to the Indian Constitution, which had directed the formation of the J&K Constituent Assembly. A Presidential order could not have gotten rid of the J&K Constitution. Both the J&K Assembly and the High Court were formed by the J&K Constitution in 1957.

Bilateralism

“The J&K Constitution was a product of bilateralism. It treated the provisions of the Indian Constitution as sacrosanct. In return, the Indian Constitution offered certain safeguards,” Subramanium said.

He said Article 370 was the “medium” through which both the Constitutions had communicated over the years.

“It was a purely federal relationship. Article 370 was the manifestation of the principle of federalism,” Subramanium submitted.

He argued that Article 370 required a valid, elected State government in the State at the time of its abrogation.

‘Federal in nature’

“Article 370 is federal in nature. It requires an elected State government on one side and the Union on the other side. Article 370 could not have been abrogated at the time of the President’s rule under Article 356 in the State… Article 370 was abrogated when the polarity between the Union and the State was merged,” Subramanium argued.

But the Chief Justice said the Parliament and the President assume the roles of the State Legislative Assembly and the State government, respectively, after the proclamation of emergency under Article 356. The powers of these two institutions are not denuded. They remain intact.

“Otherwise, what will happen if an ordinance has to be promulgated in the State during an emergency…” Chief Justice Chandrachud asked.

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