The Centre told the Supreme Court on Thursday that the erstwhile state of Jammu and Kashmir had no vestige of sovereignty outside the Constitution of India and its own Constitution was subordinate to that of India’s.
As a five-judge bench headed Justice N V Ramana resumed hearing on pleas challenging the repeal of special status to J&K under Article 370 of the Constitution. Attorney General K K Venugopal read out Article 1 which states that India shall be a Union of States.
“Jammu and Kashmir has been part of India and Article 1 applies on them too,” he said.
Venugopal referred to the history of J&K and under what circumstances Maharaja Hari Singh signed the Instrument of Accession on October 25, 1947, and agreed to accede to Dominion of India.
The bench, which also comprises Justices SK Kaul, R Subhash Reddy, BR Gavai and Surya Kant, will continue hearing multiple pleas challenging the Presidential Orders of August 5 and 6 last year abrogating the special status of J&K.
It will also hear pleas challenging the constitutional validity of the J&K Reorganization Act, which bifurcated the state into Union Territories of J&K and Ladakh.
During yesterday’s hearing, the counsel from the petitioners’ side affirmed that the changes in the status were beyond the Centre’s powers and the court should strike down the new provisions.
Elaborating his contention today, Venugopal said when Kashmir was being forced to merge into Pakistan, the Maharaja went to the United Nations.
“The UN declined by saying that it could not send an army to an independent nation. Thereafter, Hari Singh approached then Prime Minister Jawaharlal Nehru, who agreed to send the Indian Army” to J&K to oust the Pakistani invaders, he recalled.
He read out an excerpt from VP Menon’s book “Integration of the Indian States” to highlight the discord between the Maharaja and Pakistan.
“The purpose for the story of the integration of the states is to show the consolidation of the country and that the sovereignty of J&K was temporary,” Venugopal said.
The Attorney General submitted that it was agreed that there will be plebiscite after the war, although the Instrument of Accession did not talk about it explicitly.
Venugopal contended that the separatists supported a plebiscite as they wanted J&K to be sovereign.
“The plebiscite did not take place and/or the Standstill and Merger Agreement was not entered into are irrelevant arguments,” he added.
On being asked by Justice Kaul during arguments if the Instrument of Accession of Kashmir was different from that of other princely states, Senior Advocate Zafar Ahmed Shah, who appeared for the petitioners, said though substantially it was not, the merger terms were different.
Both Venugopal and Solicitor General Tushar Mehta, who represented the Union Territory of J&K, opposed the plea for referring the matter to a larger bench.
Mehta said inconsistency between Prem Nath Kaul (1959) and Sampat Prakash (1969) verdicts of the apex court on J&K was never there and that the petitioners might have read two different perceptions of it.
“If there is any inconsistency and that is of such nature and substance that it renders one of the judgements incorrect, then only reference to a larger bench can be done,” the Solicitor General contended.
Venugopal said Prem Nath Kaul case talked about the powers of the Constituent Assembly and that of Yuvraj Karan Singh at the time when the state was transferred to him. There was no mention of Article 370 in the judgement since it upheld the legality of the Instrument of Accession, he noted.
The Attorney General insisted that the Sampat Prakash case was irrelevant in the present matter as it held that Article 368, which requires approval by a two-thirds majority in Parliament to amend the Constitution, did not directly apply to J&K.
Senior lawyer Gopal Sankaranarayanan, who appeared for one of the petitioners, aid what followed from the judicial interpretations was that the application of Article 370 to J&K could only be decided by the Constituent Assembly.
Senior lawyer Rajeev Dhawan also argued for the petitioners.