January 28, 2025

Article 370 Was Neither Sacrosanct Nor Permanent

By Sunil Garodia
First publised on 2023-08-25 02:23:18

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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.

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With the challengers to the abrogation of Article 370 having completed their arguments, it is becoming increasingly clear that the Supreme Court has not been impressed by their lines of argument. One says this because the apex court has made observations and asked pointed questions which go against most arguments they have put up. The Supreme Court has consistently maintained that no statute of J&K can override the Indian Constitution. Earlier, it had sought to dismiss the argument that the state had a 'special' relationship with India as it said that once the state surrendered its sovereignty to India, it was 'absolute and complete'. CJI D Y Chandrachud had orally observed that "it was no conditional surrender of sovereignty to the Dominion of India. The surrender of sovereignty was absolutely complete." 

Senior advocate Gopal Shankaranarayanan summed up the arguments of the challengers by saying that the both the Constituent Assembly of India and the J&K Constituent Assembly promised a special relationship to the state "guaranteeing internal autonomy to J&K. which cannot be arbitrarily repudiated as was done on August 5, 2019". But the bench pointedly asked "does that mean anything said by the J&K Constituent Assembly would bind the Indian nation, its executive and Parliament? Post-1957(when J&K adopted its constitution), it (the special relationship) had to be embodied in a binding arrangement reflected in our Constitution, which was never done". The court also said that since the idea was "to gradually bring J&K to the mainstrea", Constitution (Application to J&K) Orders were issued from time to time to manage things.

From the observations of the apex court it is clear that it is veering around to the view that Article 370 was a temporary arrangement and the intention was not to make it sacrosanct or permanent. The state of J&K was given 'special' status then and that status was withdrawn on August 5, 2019 as the executive felt that the time had come to bring J&K to the mainstream, truly and completely. The court categorically said that since Article 370 was silent on the regime to be followed once the J&K Constituent Assembly was formed and had taken a decision, it could be interpreted (from the silence) that Article 370 had "worked itself out".