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| SC to decide if Article 370 cases should he heard by larger bench | | |
Agencies
New Delhi, feb 29: The Supreme Court will on Monday decide whether the petitions challenging the nullification of Article 370 of the Indian Constitution should be referred to a seven-judge Constitution Bench.
A five-judge Bench headed by Justice NV Ramana had on January 23 reserved its verdict after hearing arguments from senior advocates Zaffar Ahmad Shah, CU Singh, Dinesh Dwivedi, Rajeev Dhavan, Sanjay Parikh and Gopal Sankaranarayanan for petitioners and Attorney General KK Venugopal and Solicitor General Tushar Mehta on behalf of the Government.
The Bench—which also included Justice Sanjay Kishan Kaul, Justice R Subhash Reddy, Justice BR Gavai and Justice Surya Kant—is seized of petitions challenging the nullification of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which divided the state into two union territories, Jammu and Kashmir; and Ladakh.
After deciding this preliminary issue, the Bench will take up the main issue of deciding the validity of nullification of Article 370.
Shah, representing Kashmir Bar Association, and Parikh, who represents People’s Union for Civil Liberties, had requested the Bench to refer the matter to a seven-judge Bench, contending that the Supreme Court delivered conflicting verdicts on Article 370 in Prem Nath Kaul versus Jammu and Kashmir (1959) and Sampat Prakash versus Jammu and Kashmir (1970).
But the Bench had said it will refer the matter to a seven-judge Constitution Bench only if was satisfied that there was a direct conflict between two verdicts.
The Attorney General and the Solicitor General Tushar Mehta had opposed the idea of sending the matter to a larger Bench of seven judges.
Senior advocates Dhavan and Singh, representing some of the petitioners, had supported the Government’s view on this limited point even as they said they didn’t agree with government’s interpretation of the case law. There might be a miniscule discrepancy between the verdicts in the two cases but they were not so wide so as to require referring the matter to a seven-judge Bench, they had said.
Almost all the advocates representing various petitioners had emphasised that powers under Article 370 (3) could be invoked only if the Constituent Assembly of Jammu and Kashmir was in existence.
Shah had sought to draw a distinction between accession and merger and contended before the Supreme Court that Jammu and Kashmir didn’t merge with India like other states.
“The Constitution of Jammu and Kashmir can never be subordinate to the Constitution of India. We have full authority to make laws. The vestige of Sovereignty is not vested with any state in India, except ours,” Shah had said.
Dwivedi, representing Prem Shankar Jha, had said Article 370 was the only “tunnel of light” between India and Jammu and Kashmir and it could not have been used to end to effect irreversible changes in the erstwhile state’s status.
The Constitution (Application to Jammu & Kashmir) Order, 2019 was introduced to supersede the Constitution (Application to Jammu & Kashmir) Order, 1954. The 1954 Order had listed out provisions of the Constitution of India that would not apply to Jammu and Kashmir. The 2019 Order provided that all provisions of the Constitution of India will apply to the state of Jammu & Kashmir, with a few exceptions and modifications.
Though the power to abrogate or modify Article 370 was conferred on the President under clause (3) of the Article, there was a pre-condition to the same – concurrence by the Constituent Assembly of the State of Jammu & Kashmir. The Constituent Assembly had, however, ceased to exist as far back as in the 1950s. To get over this hurdle, the Presidential Order amended Article 367 to replace the reference to “Constituent Assembly” under Article 370(3) to mean “Legislative Assembly”.
The Jammu and Kashmir Reorganisation Act 2019 divided the state into two union territories—Jammu and Kashmir; and Ladakh. |
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