NEW DELHI – The Supreme Court Wednesday said it will refer the Article 370 issue to a larger 7-judge Constitution bench only if satisfied that there is a direct conflict in two earlier verdicts of the apex court which dealt with the matter.
Unless the petitioners are able to show a direct conflict between the two judgements — Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat Prakash versus Jammu and Kashmir in 1970 — which dealt with the issue of Article 370, it is not going to refer the matter to a larger bench, the top court said.
Both the verdicts were given by 5-judge benches.
Hearing the point of reference on Wednesday, a 5-judge Constitution bench, headed by Justices N V Ramana, was told by Jammu and Kashmir Bar Association that the Centre’s August 5 move last year to abrogate Article 370 was illegal and needed to be read down.
The bench, also comprising Justices Sanjay Kishan Kaul, R Subhash Reddy, B R Gavai and Surya Kant, said: “You have to show us that their was direct conflict in two verdicts of apex court. Only then we will refer it to larger bench. You have to show us that their was direct conflict.”
Senior Advocate Zafar Ahmed Shah, appearing for the lawyers body said the Constitution of India and that of Jammu and Kashmir are parallel to each other and Article 370 was continuing.
He said that Sampat Prakash judgment of the apex court had specifically stated that in light of the continuance of the circumstances, Article 370 has to stay.
Shah said both the constitutions have been working hand in hand and sub clause (2) of Article 370 was there so that there is no conflict between them.
He said that in Jammu and Kashmir there was only Instrument of Accession and no standstill agreement or merger arguments.
“If any law had to be made in Jammu and Kashmir, it could only be done in consultation or concurrence with the state. Article 370 provided for concurrence and consultation. Doing away with Article 370, you have snapped ties with the state,” Shah said.
He sought reference of the issue to a larger bench of seven judges.
Senior advocate Sanjay Parikh, appearing for the NGO, People’s Union for Civil Liberties (PUCL), also sought reference to a larger constitution bench of seven-judges.
The bench asked both Shah and Parikh to furnish by Thursday their submissions with regard to reference of the issue in view of the direct conflict between two verdicts of apex court.
The hearing remained inconclusive and would continue on Thursday.
The top court was on Tuesday told by senior advocate Dinesh Dwivedi that Article 370 of the Constitution was the only “tunnel of light” which maintained the relationship between the Centre and the erstwhile state of Jammu and Kashmir.
Petitioners challenging the Centre’s decision taken on August 5 last year to abrogate provisions of Article 370 contended that the Constitution of Jammu and Kashmir cannot be repealed in exercise of powers under the Article, which gave special status to erstwhile state.
Dwivedi, appearing for an intervenor, Prem Shankar Jha, had said that the issue needs to be referred to a larger bench as there is a dispute between two judgements of a five-judge bench which dealt with provisions of Article 370.
The top court had said that before going into the matter it would first hear the submissions on reference.
Dealing with the Presidential orders of August 5, last year, Dwivedi had said due to these orders issued under Article 370 (1) and (3), all provisions of the Indian Constitution have been applied to Jammu and Kashmir.
He said the Constitution of Jammu and Kashmir was not created under the Constitution of India or Article 370 and therefore J&K constitution cannot be repealed in exercise of powers under Article 370.
Earlier, senior advocate Raju Ramachandaran, appearing for bureaucrat-turned-politician Shah Faesal, Shehla Rashid and other petitioners, had argued that in the scheme of Article 370 while the democratic power is with the State, the executive power is with the Union government.
The top court had earlier raised a query as to who could be the competent authority to reconstitute the Jammu and Kashmir Constituent Assembly to take a call on altering the special status of the erstwhile state under Article 370 of the Constitution.
The petitioners have referred to the provision and said that only the Constituent Assembly, which represents the will of the people, is empowered to make recommendation to the President on any changes in the special status of J&K.
A number of petitions have been filed in the matter including those of private individuals, lawyers, activists and political parties and they have also challenged the Jammu and Kashmir Reorganisation Act, 2019, which splits J&K into two union territories — Jammu and Kashmir, and Ladakh.
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