The reference to Article 1, a permanent feature of the Constitution of India, in Article 370 is “a clear indicator” that the latter was “never intended to be permanent”, the Supreme Court said on Wednesday.
Chief Justice of India D Y Chandrachud, presiding over a five-judge Constitution bench, made the remarks while hearing arguments on petitions challenging changes made to Article 370 and reorganisation of the erstwhile state of Jammu and Kashmir into two Union Territories.
“Article 1 is a permanent feature of the Constitution. What was the reason for Art 370(1) to contain a specific reference that Article 1 shall apply? Article 1 was in any case applicable. That’s an embedded part of the Constitution,” the CJI said as senior advocate Gopal Sankaranarayanan was making submissions opposing the changes to Article 370.
On why a reference to Article 1 was introduced in Article 370, the CJI said that “during the interim period, when there was a power to modify provisions of the Constitution — those relatable to the Instrument of Accession (IoA) with consultation, those not relatable to the IoA with concurrence — there would have been a doubt whether Article 1 could also have been modified with concurrence. So the object of putting that in Article 370 was to redouble the Constitutional statement that Article 1 is a permanent feature of the Constitution.
“Now if Article 370 was intended to be permanent, there was no reason to include Article 1 in Article 370, because Article 1 is anyway a permanent feature of the Constitution.”
The CJI said although “we may apply the principle of surplusage” to ordinary statutes of the legislature, “you would never attribute to the Constitution-makers any intent to use a surplusage, or something without meaning”.
Interpreted in this light, he said, “the reason why Article 1 is specifically referred to in Article 370 is that during that interim period when other provisions could be modified, they were very clear that Article 1 will not be modified, which is a clear indicator of the fact that Article 370 was never intended to be permanent.”
Sankaranarayanan told the bench, also comprising Justices S K Kaul, Sanjeev Khanna, B R Gavai and Surya Kant, that the case is “effectively about whether a power exists, and whether the process for exercise of that power is followed”. He said Article 3 allows a part of a state to be converted into a UT. There is a procedure to do it, which was not followed for J&K, he said.
“The manner of exercise of that power is one of the fraudulent, invidious exercise of power we have seen in this country since 1970 (when the privy purse was abolished),” he submitted.
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On Tuesday, the CJI had 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 Jammu and Kashmir”.
Responding on Wednesday, senior advocate Menaka Guruswamy said: “It poses upon us a seminal Constitutional question: can the Constitution of India be altered in ways opposed to her founders’ Constitutional intention?…”
The petitioners concluded their arguments on Wednesday. The Centre will begin its arguments on Thursday.