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By Sunil Garodia
First publised on 2023-08-25 02:23:18
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 The state of J&K was given 'special' status then and that status was withdrawn on August 5, 2019 as the executive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".