Art 370 move irreversible: Govt to SC
NEW DELHI: The Supreme Court should not allow arguments related to the accession of Jammu & Kashmir to the Indian Union because it is irreversible, the central government’s second most senior law officer, solicitor general Tushar Mehta, told the apex judicial forum during a hearing of petitions challenging the abrogation of Article 370 on Thursday.
A Constitution bench of justices NV Ramana, Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai and Surya Kant hearing challenges to the scrapping of the contentious article reserved its order on whether the case should be referred to a larger bench of seven judges.
Mehta, appearing for the Kashmir administration on a batch of petitions challenging the abrogation of Article 370, took objection to the arguments of senior counsel Zaffar Ahmad Shah. Shah, representing the Srinagar Bar Council, told the court that the accession of J&K to India was different from that of other princely states because Kashmir’s accession was effectuated only by an instrument of accession (IOA) and there was no merger agreement or standstill agreement in Kashmir’s case.
A merger agreement signifies the end of life of a state by its complete merger with the union and without any separate political existence.
Since Kashmir’s accession to the Indian Union was based only on an IOA, the central government could legislate only on three matters specified in the IOA with respect to J&K – defence, communication and external affairs -- he argued.
Shah submitted that it was Article 370 which enabled the Centre to apply the laws made by Parliament regarding any other subject to Jammu & Kashmir, provided the concurrence of the state government was obtained. Hence, it was Shah’s case, that the continuance of Article 370 was essential for the Union government to apply its laws to Kashmir.
On August 5 and 6, the two houses of Parliament passed laws and resolutions bifurcating the erstwhile state into two Union territories, and scrapping Articles 370 and 35A.
Attorney general KK Venugopal, appearing for the Centre, countered Shah and said the accession of Jammu & Kashmir to the Indian Union was complete and irreversible. Venugopal told the court that the absence of merger and standstill agreements are irrelevant and the Jammu & Kashmir Constitution itself declared that the state was an integral part of India. The attorney general and solicitor general opposed reference of the case to a larger bench stating that there is no conflict between the judgments in Prem Nath Kaul (1959) and Sampat Prakash (1968).
These two judgments have been the bone of contention for the last few days after senior counsel Dinesh Dwivedi, who is appearing for an intervenor, pointed out that the two judgments clash with the scope and intent of Article 370. Since both these judgments were delivered by benches of five judges, Dwivedi asked the court to refer the issue to a bench of seven or more judges.
In the Sampat Prakash case, the Supreme Court held that Article 370 would cease to be operative only if the President issued a direction to that effect on a recommendation made by the Constituent Assembly of Jammu & Kashmir.
THE CONSTITUTION BENCH OF THE SUPREME COURT RESERVED ITS ORDER ON WHETHER THE CASE SHOULD BE REFERRED TO A LARGER SEVEN-JUDGE BENCH