A five-judge Constitution bench headed by Justice N V Ramana heard multiple pleas challenging the Presidential Orders of August 5 and 6 issued under Article 370 of the Constitution which removed the special status granted to Jammu & Kashmir.
The Justices also heard pleas challenging the constitutional validity of the J&K Reorganization Act which bifurcated the state into Union Territories of J&K and Ladakh.
The Centre on Tuesday had opposed the plea for referring to a larger bench a batch of petitions challenging the same.
Counsel from the petitioners’ side affirmed that the changes are beyond the Centre’s powers and the court should strike down the new provisions.
The hearing will continue tomorrow.
(Live updates have closed for this post)
4:00 pm: Bench has risen. Matter to continue tomorrow.
3:59 pm: Justice Kaul says that the court can refer to it only when it is a direct conflict. You are putting a perspective before us.
3:59 pm: Advocate Shah answers – “I don’t see a direct conflict. But, the conflict possibly could be that Certain aspects were not considered. Constitutional provision ended in 1957 and does not continue. But, if this inference is correct, then Sampat Prakash differs”.
3:59 pm: Justice Kaul asks Advocate Shah – “What is your view on this conflict?”.
3:35 pm: Shah states that 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
3:34 pm: Advocate Shah says – So far as governance is concerned, it will continue to vest in the people of the State. It needs to be understood in the context of IOA.
3:28 pm: Justice Kaul states that the everything needs to be included in the submissions.
3:28 pm: Advocate Rajeev Dhawan gets up to the counter; appreciates Shah’s arguments. Says “The substantive arguments that my brilliant friend is making; they are the best I’ve ever heard. But, we must get into this”.
3:23 pm: Solicitor General Tushar Mehta interjects saying that we are not engaging into political discourse. The issue of reference is regarding constitutional issues.
3:21 pm: Shah now reads Clause 8 of Instrument of Accession which is a non-obstante clause and doesn’t affect the sovereignty of the State.
3:20 pm: Shah argues that constitutional autonomy is a guaranteed thing to J&K. It is guaranteed by the Constitution of India and the framework and working of both the Constitution.
3:06 pm: AG interrupts and states that such conclusions cannot be said.
3:05 pm: Shah says – There are serious issues regarding whether the President can do this. “They say that the President has resorted to this and has applied 367 with modification. By virtue of 367(4), see the fraud and bulldozing,” Shah adds.
2:54 pm: “On 5th of August, it was a shock what happened, the President said: All constitution application orders are superseded and all Articles of Constitution of India will apply to J&K. Why can’t Article 368 apply to us at that time?” asks Shah.
2:52 pm: Shah cites Sampat Prakash’s case and says that the situation under which Constitution of J&K was enacted, that very situation has not changed. So, on the basis of the situation, it is continuing. Article 370 has to stay as long as the situation is the same.
2:52 pm: “When the State Govt gives its concurrence for a matter already iterated in the Consti of J&K, can it give concurrence for the destruction of itself?” asks Shah.
2:51 pm: Our (J&K) HC exists under our Constitution, as the judges are appointed under our Constitution. The concept of concurrence came into being in order to avoid conflicts between the Constitutions of India and J&K.
2:50 pm: “If 370 goes, then Art. 1 also goes, along with other Articles. We have situation where we have two Constitutions functioning parallelly. There has been a conscious effort to continue this,” says Shah.
2:47 pm: Shah argues that a constitutional entry has to be made applicable to the State and then the Parliament can legislate the law. Art. 370 found a different way which left it to the State Govt
2:44 pm: Shah says – If law had to be made in J&K, it could only be done in consultation or concurrence with the State. Article 370 provided that whatever the legal effect, consultation/concurrence had to be taken.
2:44 pm: In Jammu and Kashmir there isno standstill agreement or merger agreement but only IOA, Shah says.
2:43 pm: Shah says that J&K, Junagadh and Hyderabad were the States which were left. But, for J&K, the circumstances were different. In the case of all other States, three documents were executed.
2:38 pm: Shah says Clause 8 of the IOA allows the Ruler to retain the powers, authority and rights except on those matters enumerated in the Schedule.
2:30 pm: Bench re-assembles. Senior advocate Z.A. Shah submitting the history of the Constitution of J&K as well as the IOA.
1:00 pm: Matter to continue after lunch.
12:55 pm: Justice Reddy states that there’s nothing being said about how Article 370 has to be frozen. The moment it is decided by the Constituent Assembly, then it becomes permanent. It is temporary to the extent to the existence of the Constituent Assembly.
12:50 pm: Referring to Damnoo Judgment, Parikh states that it doesn’t deal with any of these issues. It doesn’t refer to what is required under Art. 370(2) and 370(3).
12:46 pm: “Where is the conflict?, ” asks Justice Reddy. “Kaul judgement could have never appreciated the question of Constituent Assembly because it was no longer in existence,”says Reddy.
12:44 pm: Parikh says that in Sampat’s case the argument was that after the 1954 Order, whatever Orders came could not have been passed without the Constituent Assembly. After the Constituent Assembly has come to an end, Article 370 ceases to operate.
12:43 pm: “You can’t have a reference on the basis of the fact that some judgement hasn’t been referred to in another judgement. A reference can only be made if there are conflicting judgements given by two cases which have coordinate benches,” says Justice Kaul.
12:40 pm: “You have to formulate what you feel is the conflict. It can’t be that one line says something different in one case and another line says something different in another” Justice Kaul tells Parikh.
12:36 pm: The bench asks Parikh to clarify on the conflict between SC judgments necessitating reference to larger bench. Justice Reddy asks Parikh to paraphrase the judgment of conflict (between SC decisions).
12:35 pm: Parikh points out that judgement in Kaul states that ultimately the Constituent Aseembly has to look into the will of the people.
12:23 pm: Parikh also reads out relevant sections from Sampat Prakash vs. State of J&K. He states that Articles 368 and 370 have to be read in consonance with each other.
12:22 pm: “The Constitution-makers were obviously anxious that the said relationship should be finally determined by the Assembly of the State itself”, Parikh refers to the case of Prem Nath Kaul v. State of J&K, which offers an interpretation of Article 370.
12:00 pm: Parikh states that he will not refer to Puranlal Lakhanpal (1966) judgement, but he will discuss Prem Nath Kaul (1959).
11:58 am: Parikh says that there was no need for it in Constitution of J&K. “The other States accepted this and that’s why the amendment was present in Consti of India. But, not for J&K. There was no need,” adds Parikh.
11:57 am: Justice Gavai asks Parikh if there is a reference of the Constituent Assembly in the Jammu and Kashmir Constitution?
11:55 am: “Section 147 of the J&K Constitution (came in 1957) states that whatever has been done, the assent needs to be given by the Sadar-i-Riyasat,” says Parikh.
11:51 am: Parikh argues that the Constitution of Jammu and Kashmir is part of the Constititon of India, in a larger sense. There is no way to figure the concurrence since this is a temporary provision.
11:50 am: “Constituent Assembly is ultimately the repository of the will of the people. You can’t make a change without the recommendation; it is not permissible,” argues Parikh.
11:50 am: Justice Reddy asks whether the argument pertaining to him says the Article 370 can only be amended if recommendation by Constituent Assembly is given.
11:49 am: While referring to several other CO’s, Parikh reiterates that the concurrence of the Government of J&K in necessary.
11:47 am: Parikh now refers to the Constitutional Order (CO) 43 of 1952. He says that in respect of this, it is pertinent to remember that this shift in power in J&K was effectuated in consultation with the Constituent Assembly.
11:38 am: IOA made it clear that you can’t have any other thing in this Constitution. There were umpteen opportunities to make changes, but they didn’t do that, says Parikh.
11:36 am: Two different Presidential Orders were issued and their context was also different as they were issued in different spheres, says Parikh.
11:35 am: Parikh says change was made in the Explanation (1952) to Article 370 and this change was made in accordance with the recommendation. The democratic process at that time had already set in, so Maharaja was replaced by Sadar-i-Riyasat.
11:28 am: Are you saying that 370 only has historical significance, asks Justice Kaul. Parikh says yes.
11:26 am: We are trying to look into the legislative history, just to arrive at what would happen if it does not assemble, says Parikh.
11:26 am: Justice Reddy asks – what if the Constituent Assembly has not assembled ?
11:25 am: The President can issue notification to annul the entire 370. In proviso, he will ultimately need the recommendation of the Constituent Assembly, says Justice Ramana.
11: 21 am: Parikh says that people never wanted Article 370 to end like this; their will was never taken into consideration.
11:21 am: While referring to Clause 3 of Article 370, Parikh argues that the amendment/modification of Article 370 can be done by the President. However, it must be first approved by the Constituent Assembly.
11:18 am: Parekh – With regard to other matters, concurrence of the Govt. is required. Sovereign power has been given to legislate in a particular sphere.
11:16 am: Parikh says that matters mentioned in the Instrument of Accession was to be approved by the Constituent Assembly. He further insists that concurrence of the State is paramount in matters of governance for state of J&K.
11:12 am: Unless it can be shown from the Constituent Assembly debates that the lawmakers intended “everything” to go through the Constituent Assembly, the argument advanced by Parikh lacks merit, Kaul J.
11:06 am: Judge SK Kaul – Your case is contradictory. If you’re saying that it’s transient in character, then whatever is done before is also obliterated.
11:05 am: Parikh says he will refer to 1950 order and 1952 order, while making changes in the 1952 order.
11:05 am: Justice SK Kaul asks Parikh if whatever was done both before or after the abrogation becomes void.
11:04 am: “Even if it’s a temporary decision taken by the govt , it has to be subjected to the constituent assembly,” says Parikh.
11:00 am: Parikh insists that the draftsmen intended that matters on governance in J&K be enforced only after consultation with the State Government.
10:55 am: “In some of the Articles, concurrence of the State Govt. is provided. But, even for temporary provisions, whatever the CA wants will be binding,” says Parikh.
10:50 am: Parikh cites statements of Sardar Vallabhbhai Patel and N Gopalaswami Ayyangar that led the way to the Special status of Kashmir.
10:44 am: Senior Advocate Sanjay Parikh resumes his arguments regarding question of referring the issues to a larger Bench.