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

Parikh : Art. 370(3) cannot be used to amend (1) and (2). What has happened ultimately is that you require the concurrence. 1965, after that was done, Art. 370 could not be amended so easily. Definition clause can only be amended by Art. 370(3).

Parikh : If you’re making any changes in Art. 367, then you must proceed under Art. 370(2).

Parikh - In Sampat’s case the argument was that after the 1954 Order, whatever Orders came could not have been passed without the Constituent Assembly.

Parikh : After the CA has come to an end, Art. 370 ceases to operate.

Reddy J. - This is also the argument made by you ?

Parikh - Yes. If you look at 370 in Kaul’s case, the reasons given : interpretation of 370.

Reddy J. - That we appreciate. But, where is the conflict ? Kaul judgement could have never appreciated the question of CA because it was no longer in existence.

Parikh - In Sampat’s case the argument was that after the 1954 Order, whatever Orders came could not have been passed without the Constituent Assembly.

Parikh : After the CA has come to an end, Art. 370 ceases to operate.

Reddy J. - This is also the argument made by you ?

Parikh - Yes. If you look at 370 in Kaul’s case, the reasons given : interpretation of 370.

The bench asking Parikh to clarify on the conflict between SC judgments necessitating reference to larger bench.

Reddy J. - What is the precise conflict (between SC decisions) ? Paraphrase it. Why do we refer this ?

Kaul J. - You have to formulate what you feel is the conflict. It can’t be that one line says something different in one case and another line says something different in another.

Parikh - The argument which was advanced was that the concurrence-

Reddy J. - But, where is the conflict ?

Ramana J. - Has it been referred to in any of your written arguments ? If yes, then read it.

Kaul J. - You can’t have a reference on the basis of the fact that some judgement hasn’t been referred to in another judgement. A reference can only be made if there are conflicting judgements given by two cases which have coordinate benches.

Parikh points out that judgement in Kaul states that ultimately the CA has to look into the will of the people.

Third submission is that Art. 368 is a general amendment. But, it has been made subject to Art. 370. Only 370 and Art. 1 are applicable

Now, moving on to the judgments, Parekh states that he will not refer to Puranlal Lakhanpal (1966), but he will discuss Prem Nath Kaul (1959).

Gopalaswami Ayyengar’s statements from the debates have also been pointed out in the judgement and answers the Gavai J.’s question about whether the CA debates were referred to.

Second submission is based on 370(3). Recommendations of CA; the changes were made in the Explanation. And if they wanted to make any further changes while the CA was still existence, they could have done it.

Section 147 of the J&K Consti (came in 1957) states that whatever has been done, the assent needs to be given by the Sadar-i-Riyasat.

Gavai J. - There’s no reference to the CA here ?

Parikh - There was no need for it in Consti of J&K. The other States accepted this and that’s why the amendment was present in Consti of India. But, not for J&K. There was no need.

CA is ultimately the repository of the will of the people. One sovereignty is the IOA and the second is the will of the people. You can’t make a change without the recommendation; it is not permissible.

Virtually the Consti of J&K is part of the Consti of India, in a larger sense. How do you work out the concurrence ? You cannot, because then you’re putting a temporary provision. This was only for the purpose of the CA coming into existence. You cannot do it after that with these POs.

370(1) and (2) and (3), there is a lot of difference. When I come to concurrence, I will show if it’s gone before the CA. But, when you’re making a change in 370 itself, then 370 applies.

Reddy J. asks whether the argument pertains to him saying that Art. 370 can only be amended if recommendation by CA is given.

Reddy J. - So, all Orders required the con

1950 is consultation. They are not supposed to be placed.

Surya Kant J. - Was this placed ? The principle of sovereignty comes up after 1954 Order.

Parikh - I am going on the interpretation as I am on the preliminary point now. PO 1950 is only consultation. 1952 is two parts: Concurrence and recommendation (Clause 3 of 370). The distinction is very necessary.