Day 7: 22 January 2020
Today, Sr.Adv.Sanjay Parikh and Sr.Adv.Zafar Shah concluded their submissions on the need to refer the present set of challenges to a larger bench. At the end of the day though, the Bench requested both counsels to frame specific propositions of law that will have to be placed before such a larger bench, if it were set up.
Article 370 carves out a special status for J&K in India’s federal arrangement
Continuing his submissions from yesterday, Sr.Adv.Parikh placed emphasis on the unique arrangement that was carved out by virtue of Article 370. He started off by submitting that while all the other states which joined the Indian Union accepted its dominion fully, a special status was accorded to J&K. In line with this, Article 370 was formulated as a temporary arrangement till such time the will of the people of J&K was expressed through the J&K Constituent Assembly (J&K CA). This, he said, enabled the application of Union laws to J&K till the dissolution of the J&K CA. Nevertheless, once the J&K CA was dissolved, Article 370 ceased to have effect. Moreover, J&K CA had the final say on the applicability of those Union laws which required its concurrence.
At this point, the Bench requested the Counsel to produce any material to show that Presidential Orders prior to 1957 were duly ratified by the J&K CA. However, the Counsel could not produce such material and sought the leave of the Bench to produce same at a later point of time.
Thereafter, he submitted that after the dissolution of the J&K CA, only Article 1 of the Constitution of India and other provisions, which were duly ratified by the J&K CA, were applicable to the State.
Interestingly, Justice Subhash Reddy observed that proviso to Art. 370 (3) [which mentions that the consent of the J&K CA is required for the abrogation of Article 370] would not apply once the Assembly was dissolved. Thus, such proviso applied only till the time the Constituent Assembly of J & K had not been dissolved.
Sr.Adv. Parikh once again relied on the decision in Prem Nath Kaul to show that J&K CA and its concurrence was supreme in matters relating to Art 370.
Nevertheless, on the primary issue which was argued – the conflict between Prem Nath Kaul and the subsequent decisions in Mohd.Damnoo and Sampat Prakash, the Bench was not satisfied with the counsel’s explanation on what the conflict was. Given this, he requested some time to articulate this conflict more clearly.
Finally, he submitted that any changes to Article 370 through Article 367 (as was done in the Abrogation Orders) could only be done with the concurrence of the J&K CA. Mere concurrence of the State Government was insufficient, added Sr.Adv. Parikh.
Will of the people of J&K paramount in determining the relationship between J&K and Union
Sr.Adv.Zafar Shah started off his submissions by tracing the history of J&K’s accession to the Indian Union and how the State achieved – and continues to retain – a special status within the Union. He stated that between the date of independence and October 26, 1947 Kashmir was a sovereign nation, capable of being a member of the United Nations. Thereafter, upon the signing of the Instrument of Accession (IoA), Maharaja Hari Singh retained his sovereign power and J&K retained its statehood. Nevertheless, the power to legislate on 4 subjects specified in the schedule to the IoA was acceded to the Union.
He tried to give further evidence of J&K’s quasi-sovereign status by referencing the Governor General’s letter at the time of signing the IoA. As per it, there was a promise to ultimately refer the accession to the will of the people of J&K. This, he said, should be read together with Clause 17 of the IoA, which mentioned that the Maharaja and his heirs are not bound by the Indian Constitution. Moreover, unlike other territories which joined the Union, J&K never signed an Instrument of Merger.
After the commencement of the Constitution of India, Constitution (Application to J&K) Order 10, 1950 was passed applying the provisions of the Constitution in relation to the subjects mentioned in the Schedule of the IoA. This, he mentioned, was done with the consultation of the Government of J&K, which was at that time the Maharaja, acting on the aid and advice of his council of ministers. The 1952 Presidential Order as well as the 1954 Presidential Order were then issued, in ‘concurrence’ with the Constituent Assembly. Thus, he argued that J&K retained all its sovereign power and statehood up until the Constituent Assembly was dissolved, except for matters specified in the IoA. The legal question, he said, was where would this power go to after the dissolution?
He then went on to argue that CO 272 was passed fraudulently since the constituent power cannot be exercised by the Legislative Assembly, as the nature of the power is plenary, and the Assembly is a creation/creature of the Constituent Assembly.
Finally, he placed reliance on the decisions in PN Kaul and Mohd.Damnoo to emphasize that the consent of Constituent Assembly was required under Article 370(3) to abrogate the provision.
With this, the oral arguments for the day came to a close. The Bench then directed both Sr.Adv Zafar and Sr.Adv Parikh to come back tomorrow with a cogent proposition of law that could be placed before the larger bench, if such a reference was allowed.
(Court reporting by Abhishek Sankritik)