Article 5 of J&K Constitution shows applicability of Indian Constitution: SC

The Supreme Court on Tuesday said 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 under the provisions of the Constitution of India.

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, comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant, is hearing a batch of pleas challenging the abrogation of Article 370, which bestowed special status on the erstwhile state of Jammu and Kashmir.

Senior advocate Dinesh Dwivedi, representing senior journalist Prem Shankar Jha, said that sovereignty comprises two parts -- merely because the state had then ceded external sovereignty, it doesn't amount to ceding of internal sovereignty. He said Article 370 ceased to operate once the constitution of J&K was enacted in 1957.

Dwivedi said Kashmir was different both in terms of its accession to the dominion of India where it ceded at a different time as an independent state or a nation, and it was different in the sense that it didn't merge with India unlike the other states.

The bench, however, asked Dwivedi as to which provision in the J&K Constitution was equivalent to Article 245 of the Indian Constitution.

As Dwivedi responded by citing Articles 3, 4 and 5 of the J&K Constitution, 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 power to make laws for the State under the provisions of the Constitution of India. 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?”

The bench also said that there are no provisions in the Indian Constitution which bars its applicability to Jammu and Kashmir.

The court also said if Article 370 ceases to operate and Article 1 continues to operate then J&K is an integral part of India and surely, “the jurisdiction of every democratically elected institution in India is not excluded in its application... it has to be dealt with a provision of Indian Constitution."

The bench specifically asked Dwivedi if there was a provision in the Indian Constitution which excludes its applicability to J&K.

In response, Dwivedi said that our thinking for the past 70 years has been tuned towards one nation and one Constitution, and asked where that was prescribed.

Dwivedi said when they gave this power of consultation and concurrence, it was in a peculiar situation and the basic theme is that Kashmir was different in terms of accession to dominion of India and it didn't merge unlike the other states.