SC refuses to refer pleas to larger bench

COURT ACCEPTED THE CENTRE’S ARGUMENTS IN THE LIMITED ASPECT OF REFERENCE AND HELD THAT THERE IS NO CONFLICT IN THE EARLIER SUPREME COURT JUDGMENTS

NEWDELHI: THE Supreme Court on Monday refused to refer the petitions challenging the abrogation of Article 370 to a larger bench. NGO People’s Union of Civil Liberties (PUCL), Jammu and Kashmir High Court Bar Association and an intervenor challenged the constitutional validity of the Centre’s decision of August 5 last year and sought that the matter be referred to a larger bench, of either seven or nine judges.

The top court accepted the Centre’s arguments in the limited aspect of reference and held that there is no conflict in the earlier Supreme Court judgments of Sampat Prakash and Prem Nath Kaul. A five-judge constitution bench headed by Justice N V Ramana, on January 23, reserved its order on this issue.

Opposing the plea, the Centre said that abrogation of provisions of Article 370, which granted special status to the erstwhile state of Jammu and Kashmir, was “fait accompli” which meant there was no going back on it.

On August 5 and 6 last year, Parliament passed laws and resolutions bifurcating the erstwhile state of Jammu and Kashmir into two Union Territories, Jammu and Kashmir, and Ladakh; and scrapping constitutional provisions that gave the state special status and its residents special privileges.

The petitioners sought a reference to a larger bench on the ground that two judgements of the apex court — Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat Prakash versus Jammu and Kashmir in 1970 — which dealt with the issue of Article 370 are in direct conflict each other. They claimed that, consequently, the current bench of five judges could not hear the issue.

In Sampat Prakash judgement, the Supreme Court had held that Article 370 will cease to be operative only if the President issues a direction to that effect on a recommendation made by the Constituent Assembly of Jammu & Kashmir.

In the Prem Nath Kaul verdict, the Supreme Court ruled that plenary powers of the ruler of Kashmir were not limited by Article 370. The temporary provisions of Article 370, the court ruled, were based on the assumption that the ultimate relationship between India and Jammu & Kashmir would be finally determined by the Constituent Assembly of Jammu & Kashmir.

Attorney General K K Venugopal, appearing for the Centre, told the five-judge bench that the two earlier judgments were not related to each other and dealt with different issues. The Centre argued that the sovereignty of J&K enabled by Article 370 was temporary.

At least 23 petitions have been filed in the apex court against stripping J&K of its special status and splitting it into two union territories. Some other petitions challenged the restrictions imposed in the Kashmir valley after the changes, which the petitioners argue are in violation of the fundamental right to speech and expression and the right to move freely under Article 19 of the Constitution.