Can constituent assembly Art 370 speech be binding: SC

The Supreme Court on Tuesday expressed doubts that the Constituent assembly debates or a speech by one of its “weighty” members could represent a “commitment by the Dominion of India to the state of Jammu & Kashmir” regarding perpetuity of the latter’s special status under Article 370, observing that such an inference would be difficult to be accepted as a legal principle.

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“Can we say that a speech made by an individual member of the Constituent Assembly, howsoever weighty, represents a binding commitment of the Dominion of India to the state of Jammu and Kashmir? This will have implications in interpreting the constitutional provisions...it is difficult to accept,” a Constitution bench, led by Chief Justice of India Dhananjaya Y Chandrachud said.

The bench, which also comprised justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R Gavai and Surya Kant, is hearing a clutch of petitions challenging the 2019 abrogation of Article 370 that granted J&K special status, and the bifurcation of the erstwhile state into two Union territories.

On the eighth day of the arguments in the matter, senior counsel Dinesh Dwivedi, representing one of the applicants, argued that Article 370 ceased to exist, became inoperative and academic once the “permanent determination” was made by the J&K constituent assembly that the erstwhile state will have its own Constitution.

“President could not exercise power to extend Constitution of India to J&K indefinitely. It had to stop once the Constituent assembly of J&K dispersed after enacting the J&K Constitution and deciding finally what was to be ceded to the Union of India and Parliament. Article 370 was not a repeated and a perennial source of power,” he said.