Supreme Court says J&K Constitution not at par or superior to Indian Constitution, reserves judgement in Article 370 hearing

The bench reserved its judgement on a batch of petitions challenging the dilution of Article 370 after 16 days of marathon arguments.

The Supreme Court on Tuesday said that the Constitution of Jammu and Kashmir was neither at par or superior to the Constitution of India, as it pointed out that the President appoints and transfers judges to the High Court over there. 

A five-judge bench led by Chief Justice of India D Y Chandrachud and comprising Justices S K Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant, reserved its judgement on a batch of petitions challenging the dilution of Article 370, related to special status to the erstwhile state of Jammu and Kashmir, after 16 days of marathon arguments.

During the hearing, the bench told senior advocate Gopal Subramanium that the domain of the constitution of Jammu and Kashmir was that which was defined by the Constitution of India.

“Therefore, this was not a constitution (of J&K) at par or superior to the Constitution of India, it can’t be superior to the Constitution of India, nor it was at par with the Constitution of India,” the bench said.

The Chief Justice cited Section 5 of the constitution of J&K, saying that the domain of the Parliament to make laws for states will be defined by the Constitution of India not by the J&K Constitution.

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.

Gopal Subramanium, representing a petitioner in the rejoinder argument, said, “I would not like to say easily that the Jammu and Kashmir constitution is inferior because it established courts of record and legislature and the Jammu and Kashmir High Court owes existence to the Jammu and Kashmir constitution. The legislature of J&K owes its existence to this constitution…. These institutions of permanent nature established under the constitution”.

The Chief Justice asked Subramanium who would appoint judges to the High Court of Jammu and Kashmir. Subramanium said that is also provided, the chief justice of the high court is involved and the Chief Justice of India is also referred to.

“The President will appoint judges to the High Court of Jammu and Kashmir and the President will transfer judges of the high court,” the bench said.

Subramanium said but he was saying that the establishment of the institutions owed their genesis not to the Indian Constitution but to the J&K constitution.

Senior advocate Zafar Shah, representing a petitioner, said self-governance is better than good governance. "Give our self-governance back,” he said, adding the nation has to grow but for that one needs to win the hearts of people.

Senior advocate Rajeev Dhavan, representing Sajjad Lone-led J&K People’s Conference, said Article 370 is a compromise and one could find many compromises in the Constitution. 

Dhavan said Centre is not able to provide a roadmap for restoration of statehood, while democracy, reasonableness and federalism, which are structural principles, had been given a go-by through the decision to abrogate Article 370.