Art 370 move is irreversible, govt tells apex court

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 Kash

mir’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.

In Prem Nath Kaul, 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.

Aside from Dwivedi, senior counsel Sanjay Parikh appearing for NGO People’s Union for Civil Liberties also sought reference of the case to a larger bench.

However, senior counsel Rajeev Dhavan appearing for Jammu & Kashmir People’s Conference opposed the reference while maintaining that a state cannot be demoted to a Union territory under Article 3 of the Constitution.

The court is hearing at least 23 petitions challenging the central government’s August 2019 decision to abrogate Article 370 of the Constitution, thereby revoking the special status of the state of Jammu & Kashmir. The state was bifurcated into two Union territories, of Ladakh and Jammu & Kashmir, after Article 370 was scrapped.

The Kashmir valley was simultaneously placed under a shutdown in a bid to stifle protests and dissent, which were widely anticipated. Telephone lines, mobile communication and internet services were stopped and restrictions were imposed on press and transport within the valley.

A slew of petitions were filed in the Supreme Court challenging the restrictions, which the petitioners argued were in violation of their fundamental right to speech and expression and the right to move freely under Article 19 of the Constitution.

A three-judge bench of the Supreme Court passed its judgment in those petitions on January 10, holding that restrictive orders suspending internet, telecommunication and movement should be published by the government indicating the specific reasons for imposing the restrictions and it should be proportional to the concerns necessitating such suspension.

The petitions challenging the abrogation of Article 370 are being heard separately by the Constitution bench of five judges.