[Article 370] [Day-5] Hearing On Kashmir Petitions [Live-Updates From Supreme Court]

There are serious issues regarding whether the President can do this. They say that your mindset is bad, you don’t have good teachers, you don’t have private universities, you have cross-border terrorism : Shah

On 5th of August, it was a shock what happened, the President said:

All constitution application orders are superseded and all Articles of COI will apply to J&K. Why can’t Art. 368 apply to us at that time ? : Shah

These two Constitutions have been working hand in hand.

Sampat Prakash" says that the situation under which Consti of J&K was enacted, that very situation has not changed. So, on the basis of the situation, it is continuing. Art. 370 has to stay as long as the situation is the same : Shah.

PO 1952 modified the term from Maharaja to Sadar-I—Riyasat. But, before doing that, the Consti of J&K had to be amended in order to avoid conflict. So, the first change had to be made in our Consti : Shah.

When the State Govt gives its concurrence for a matter already iterated in the Consti of J&K, can it give concurrence for the destruction of itself ? So, on one hand we have CoI which has Art. 370 that allows it be applicable to J&K, on the other hand, we have our own Consti

We have situation where we have two Constitutions functioning parallelly. There has been a conscious effort to continue this. : Shah

Our(J&K) HC exists under our Constitution. The judges are appointed under our Consttiution. To avoid conflicts between the Constitutions of India and J&K, the concept of concurrence came into being : Shah.

How does a Parliament legislate for a State ? For J&K, IOA enumerated the three matters. But, for the rest such as tax et al, State had to be consulted.

First a constitutional entry has to be made applicable to the State and then the Parliament can legislate the law. Art. 370 found a different way which left it to the State Govt.

If 370 goes, then Art. 1 also goes, along with other Articles. There was a deliberate intention of retaining the Article. Doing away with it would entail that you are snapping ties with the State : Shah

If law had to be made in J&K, it could only be done in consultation or concurrence with the State. Art. 370 provided that whatever the legal effect, consultation/concurrence had to be taken.

Shah says that J&K, Junagadh and Hyderabad were the States which were left. But, for J&K, the circumstances were different. In the case of all other States, three documents were executed.

1. IOA - This means that you do not fully secede fully.

2. Standstill agreement - State of affairs are at a standstill.

3. Merger agreement - the State life comes to an end. It has fully merged with the Union.

In J&K, there was only IOA and no standstill agreement or merger agreement. 

Sr. Adv. Z.A. Shah is arguing now.

Shah is submitting the history of the Constitution of J&K as well as the IOA.

Clause 8 of the IOA allows the Ruler to retain the powers, authority and rights except on those matters enumerated in the Schedule : Shah