Benchmarking Phase

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As the hearing of a number of petitions challenging the abrogation of Article 370 resumed, the Supreme Court reserved the order about transferring the case to a larger constitution bench, reports Tahir Bhat

Supreme Court of India

The Supreme Court has started hearing the gamut of petitions challenging the abrogation of Article 370 on August 5, 2019. Initially heard in December, the case came up for hearings last week.

It was Justice Sanjay Kishan Kaul, the only Kashmiri judge on the Article 370 bench, who had sought to know if any constitutional provision or even a Constitution could ever be a permanent structure. “Can a Constitution be permanent, frozen in time,” the judge asked Dinesh Dwivedi arguing for Prem Shankar Jha, on December 13, according to The Economic Times. He went on to add that Article 370 could not have been envisaged as a permanent feature. Once its purpose was sub-served where is the question of permanency? “Can anything be permanent in a polity of a country… that could not have been the purpose?”

The focus of resumed hearings, however, was whether the case should be heard by the existing 5-judge bench or by a larger 7-judge constitutional bench. This was inevitable in the wake of the court observation that before going into the matter it would first hear the submissions on the reference.

On the fourth day of hearing, the bench comprising of justices Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai and Surya Kantand headed by Justice N V Ramana observed that it will refer all the petitions to a larger Constitution bench only if it is satisfied that there is a direct conflict in two earlier verdicts of the apex court Prem Nath Kaul versus Jammu and Kashmir (1959) and Sampat Prakash versus Jammu and Kashmir (1970). The two verdicts were given by separate 5-judge benches.

So far, four advocates have argued in favour of bench up-gradation.

Earlier, the court had 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. Petitioners asserted that only the Constituent Assembly is empowered to make any recommendation to the President.

The petitioners have asserted that only the Constituent Assembly, which represents the will of the people, is empowered to make a recommendation to the President on any changes in the special status of J&K.

Dinesh Dwivedi told the court that since the Constitution of Jammu and Kashmir was not created under the Constitution of India or Article 370, it cannot be repealed in the exercise of powers under Article 370. He said the Presidential orders of August 5, 2019 “virtually abolishes” the Constitution of Jammu and Kashmir. “It’s a case of implied repeal where a Constitution has been repealed by an executive exercise of powers,” he argued. “Article 370 was the only tunnel of light connecting the Centre to the erstwhile state of Jammu and Kashmir. The Article 370 required that action of government of India should have concurrence with Jammu and Kashmir constituent assembly, which was dissolved in 1957 after framing the Constitution of Jammu and Kashmir”.

Dwivedi continued: “The power to issue such Presidential Order under Article 370(1) (d) could not be exercised by the President with the concurrence advice of the Governor only.” He said the substitution of “Legislative Assembly of the State” for “Constituent Assembly” with the concurrence of the State Government or Governor is void. Besides, he said, the Jammu and Kashmir’s Legislative Assembly is a creature of the Constitution of Jammu and Kashmir and not the Constitution of India where Governor cannot be a substitute.

“Article 370 was temporary and was to cease after the enactment of the Constitution of Jammu and Kashmir. Thereafter, the governing relationship between Union and the State was to be regulated by the Constitution of Jammu and Kashmir,” he added.

Kashmir’s prominent lawyer, Zafar Ahmed Shah, appearing for the Jammu and Kashmir High Court Bar Association argued that the Constitution of India and that of Jammu and Kashmir are parallel to each other and Article 370 was continuing. In Sampat Prakash judgment, he said, the court had specifically stated that in light of the continuance of the circumstances, Article 370 has to stay.

Shah arguments asserted that in case of Jammu and Kashmir, there was the only an Instrument of Accession (IoA) and not a standstill agreement or a merger agreement. Clause 8 of the IoA directed that “only legislative powers” were given to India. “This, however, gave birth to a peculiar trap of Article 370,” Shah was quoted as saying by Bar and Bench, asserting that it made mandatory for the state government to agree to every decision of the Centre.

“The abrogation of Article 370 was illegal and it has to be read down. All of a sudden, shockingly, the President of India states that all Constitution Orders are superseded and all provisions of the Constitution will apply to the state of Jammu and Kashmir. Then why not Article 368?” Shah argued. He termed the abrogation as “atrocious” and accused Delhi of committing a “constitutional fraud”. “The whole Constitution of India can never be made applicable to us”, he asserted. “The power of a Constituent Assembly is unlimited, its roots are in the will of the people. It is beyond challenge”.

Asserting that Jammu and Kashmir’s constitutional autonomy is “a guaranteed thing” by the Constitution of India and the framework and working of both the constitutions. “Article 370 subsumes the sovereignty of the State. Within the framework of the constitutions, you have yours and we have ours. This was the method which has been followed in the last 70 years,” Shah said.

“If any law had to be made in Jammu and Kashmir, it would 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,” he asserted.

Sanjay Parikh, who appeared for the Peoples’ Union for Civil Liberties (PUCL), extensively quoted sections of the debates of the Constituent Assembly to submit that the writers of the Indian Constitution – including Sardar Vallabhbhai Patel and N Gopalaswami Ayyangar, intended that the “will of the people be of paramount importance in Jammu and Kashmir”, and that any topic of governance in the region could be enforced only after consulting the state government.

Parikh also stated that the Instrument of Accession (IOA) “made it clear” that no other provisions would be included in the erstwhile state’s constitution and that they wouldn’t accept a “future constitution”.

“The Constituent Assembly is ultimately the repository of the will of the people,” Parikh argued. “One sovereignty is the Instrument of Accession and the second is the will of the people. You can’t make a change without the recommendation (of the Constituent Assembly); it is not permissible.”

Earlier, Raju Ramachandaran, appearing for Dr Shah Faesal, and Shehla Rashid, 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.

On the last day of the hearing, the bench heard KK Venugopal who said the abrogation of Article 370 allowed the accession of Jammu and Kashmir to the Indian union, asserting the move is “irreversible”. He said the sovereignty of Jammu and Kashmir was “indeed temporary”. He read from VP Menon’s Integration of the Indian States, to showcase the relationship between the Maharaja and Pakistan and the basis of Maharaja’s subsequent decision approving the Instrument of Accession with India.“When Kashmir was being forced to merge into Pak and it didn’t want to, Maharaja went to the UN, but the UN declined by saying that it cannot send an army to an independent nation. Then he went to Pt. Nehru, who agreed to send the army,” argued the Attorney General.

Veugopal argued that Article 370 only brought out the legislative powers of the state of Jammu and Kashmir. Asserting that there was no conflict in both the judgments, he said the matter should not be referred to a larger bench. Solicitor General Tushar Mehta, who represented the Union Territory of J&K, also opposed the plea for referring the matter to a larger bench.

Earlier, there was a little exchange between Justice Kaul and Zafar Shah. “Was the Instrument of Accession signed by Kashmir different from the one signed by other princely states?” Justice Kaul asked.

“Substantially no,” Shah replied, adding there was a principle difference as Jammu and Kashmir had neither a Standstill Agreement nor Merger agreement with India.

There was a heated exchange between Rajev Dhavan and Tushar Mehta. Dhavan was reported to have objected when Mehta contended that “no argument favouring secession or giving wrong picture about Kashmir should be permitted. I would show who the real separatists are”.

“Political statements should not be made,” Dhavan reacted. “The issue before this court is not whether Jammu and Kashmir is a part of India. The issue is on what terms is Jammu and Kashmir a part of India”.

Finally, the bench ruled that it has reserved its orders on the demand for a larger bench and the date for its announcement would be notified soon.

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