Article 370: Transfer case to larger Bench, Petitioners to SC


The petitioners challenging the abrogation of the special status of Jammu and Kashmir on Thursday urged the five-judge Constitution Bench of the Supreme Court to refer the case to a larger Bench, reported The Hindu.

Appearing before the Constitution Bench led by Justice N.V. Ramana, senior advocate Dinesh Dwivedi, appearing for economist Prem Shankar Jha,, said there was a “direct conflict” of opinion between two judgments, one of 1959 and the other of 1970, about the nature and extent of Article 370.

The President’s notification on August 5 abrogated the special status of J&K by blunting Article 370, which sources the privileges accorded to the erstwhile State in accordance with the assurances which was made in the Instrument of Accession signed between the J&K ruler and the Government of India, said the report.

However, the two past judgments, both by five-judge Benches of the Supreme Court, gave contradictory viewpoints on Article 370. The 1959 one, Prem Nath Kaul versus State of Jammu and Kashmir, indicated that Article 370 was applicable only till the J&K Constitution was enacted on January 26, 1957. After that, no further changes could be made to the relationship between India and J&K, it said.

But the judgment reported in the 1970 Sampath Prakash versus State of Jammu and Kashmir case ignored the 1959 verdict and concluded that Article 370 was permanent in nature and a “perennial source of power” for the Centre to govern its relationship with the State of J&K, reported The Hindu.

Dwivedi, seconded by senior advocate Rajeev Dhavan, said Justice Ramana’s Bench was the third five-judge Bench examining a case concerning the use of Article 370. The petitions should be referred to a larger Bench.

The Constitution Bench heard submissions till 1 p.m. on Thursday and scheduled the next hearing for January 21, 2020.

On December 11, the court asked who, in the present day, was the “competent authority” to bring the extinct Constituent Assembly of J&K back to life, reported The Hindu.


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