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

Regarding provisions pertaining to J&K : Art. 35A is with regard to permanent residence and other rights. 3,7, 54,55,246,367,368.

Art. 368 was mentioned before Sampat’s case. This emphasises that ultimately any changes made to Consti of J&K can be made vide Art. 370(1).

Two different Presidential Orders were issued and their context was also different as they were issued in different spheres. IOA made it clear that you can’t have any other thing in this Consti, that we won’t accept any future Consti. There were umpteen opportunities to make changes, but they didn’t do that.

Change was made in the Explanation (1952) to Art. 370 and this change was made in accordance with the recommendation. The democratic process at that time had already set in, so Maharaja was replaced by Sadar-i-Riyasat.

Article 1 will remain as such in Art. 370, the provision remains there.

Now, referring to Constitutional Order no. 10:

“Consultation with Govt. of J&K” in Art. 370(1).

Sr. Adv. Rajeev Dhawan was talking to someone and Sr. Adv. Parikh asked him if he minded not doing so.

Dhawan - I didn’t mean to interrupt you.

Parikh - No, no. Your interruption is always welcome.

Reddy J. - What if the CA has not assembled ?

Parikh - We are trying to look into the legislative history, just to arrive at what would happen if it does not assemble.

The President can issue notification to annul the entire 370. In proviso, he will ultimately need the recommendation of the CA.

1. If you’re making any modifications, concurrence is required. That’s what Clause 2 says -

Ramana J. - Please focus on the issue regarding the reference and not the merits of Art. 370.

Parekh: With regard to other matters, concurrence of the Govt. is required.Sovereign power has been given to legislate in a particular sphere.

There are two different views taken in Kaul and Sampat case. I will read Art. 370 again. Art. 1 refers to territory. The power to legislate is confined to Art. 370. Nothing more. The matters which are in IOA requires consultation, this is what Kaul judgement talks about.

Justice Kaul - Whatever is done under Art. 370, before or after, is obliterated. Is that what you’re saying ? You’re only survived by Consti of India minus 370 and Consti of J&K.

Parikh - I will refer to the 1950 Order and

1952 OrderMaking changes in 1950 Order and second is changing in Explanation.

Kaul J. - Your case is contradictory. If you’re saying that it’s transient in character, then whatever is done before is also obliterated. You’re trying to canvass the object and the debates. That’s fine. Maybe the Central Govt. thought of a transient provision, but CA had other ideas.

Parikh - Not everything, no, no. Before 370, it shows how ultimately the IOA subjects have to be incorporated in the Indian Consti. We are not averse to other provisions of Consti, but it should be put before CA. By virtue of PO, it should be put ultimately before the CA when it was going on. The debates also say this.

Ramana J - Before 1957, whatever PO passed, is out before CA. Can you show from somewhere if it is ratified by CA also ? We don’t want date of acceptance, we want the debate. Some expression.

Parikh - It was subsequently in 1951 when CA of J&K was constituted.

Ramana J. - According to me, Mr. Dwivedi submitted that every PO has to go. Even 1950, 1952.

Parikh - I don’t agree with that.

Parekh: The intention is very clear because the Constitution was coming into force and therefore, it becomes an important part of the history.