The Constitution Bench of the Supreme Court of India comprising of Justices N.V. Ramana, Sanjay Kishan Kaul, R. Subhash Reddy, B.R. Gavai and Surya Kant, resumed hearing the petitions challenging the abrogation of the special of Jammu and Kashmir under Article 370 of the Constitution of India, and the Jammu and Kashmir Reorganisation Act, 2019.
Senior Advocate Sanjay Parikh, appearing on behalf of People's Union for Civil Liberties (PUCL), commenced his submissions with regard to the reference of the matter to a 7-judge bench on the ground that contrasting opinions had been rendered by coordinate Benches of the Supreme Court in the cases of Prem Nath Kaul v. The State of Jammu and Kashmir [1959 AIR 749] and Sampat Prakash v. State of Jammu and Kashmir [1970 AIR 1118].
Mr. Parikh initiated the argument by referring to the Instrument of Accession (IOA), specifically Clauses 3 and 8. While Clause 3 allows for the Parliament to legislate for the State on matters specified in the Schedule of the IOA, Clause 8 provides the State to retain its sovereignty. He also referred to the importance of Clause 7 which states as follows
"Nothing in this Instrument shall be deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangement with the Governments of India under any such future Constitution."
He also submitted that during the Constituent Assembly debates, Sardar Vallabhbhai Patel had issued statements which shed a light on the continuity of the relationship between the Centre and the State. This was done in order to specify the special status of J&K. "As far as other States are concerned, they have already acceded to the Dominion. Which is why J&K poses a peculiar problem."
"As per (Senior Advocate Dinesh Dwivedi, who concluded his arguments for journalist Prem Kumar Jha yesterday), every order of the President since 1950 has to go", observed Justice N. V. Ramana.
"Everything was transient in character...370 was transient in character...it was for the J & K constituent assembly to give the final shape.
"370(3) empowers the President to abrogate or modify the Article. But it is subject to the Proviso. (3) has the power. But the manner is in the Proviso. After the Constituent Assembly ceases to exist, what is your position?", continued the judge.
"(3) is amending 370. The president can annul the entire 370 or make any modification to it. The Proviso says that an order under (3) needs a recommendation of the Constituent Assembly", agreed Mr. Parikh.
"Is it not to be understood that the Constitutent Assembly(CA) has dissolved? Reconstitution of the CA? The Proviso comes in once the CA has been constituted. When it has been dissolved, where is the question of the CA? All this is temporary. The word used is 'temporary provisions'", remarked Justice B. R. Gavai.
"Upto (1) and (2), there is concurrence for the other provisions of the constitution to apply to the state of J & K. For the purpose, they are to be placed before the CA whenever it is convened. (3) speaks of this Article. it speaks of a situation where the CA is already functioning and the recommendation has been taken", replied Mr. Parikh.
"What when the CA is not existing", asked Justice Reddy.
"They never wanted 370 to end like this. The will of the people is represented in the CA. After the CA ceases to exist, it is frozen in time. 370 only speaks of the Instrument of Accession and the framing of the J & K Constitution", pressed the senior advocate.
"You are saying 370 has only historical value? Operatively, it is over?", asked Justice Kaul.
"Yes. Article 1 still remains...", replied Mr. Parikh.
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).— Live Law (@LiveLawIndia) January 22, 2020
"1952 (Presidential Order) has two parts- C. O. 42 (replacing the Rajpramukh of J & K with Sadar-i-riyasat) and C. O. 43 (declaring that the government of the state shall be such person as is recognised by the President as the Sadar-i-Riyasat on the recommendation of the Legislative Assembly of the state)...the 52 presidential order was made for the reason that the CA was not in existence. What follows after its dissolution?", questioned the bench.
"All presidential orders that have ben issued talk of concurrence of the government of the state of J & K. There is no question of the exercise of power under the 370(3) because there is no CA", asserted Mr. Parikh.
"One order says concurrence of the CA. and all others say the concurrence of the State Government of J & K? So on matters beyond the IOA, concurrence of the state government is needed", clarified Justice Reddy.
"Principle of internal sovereignty came in 54 only...even the land reforms in the 9th Schedule were accepted", interjected Justice Surya Kant.
"If you want to amend 370, then necessarily the recommendation of the CA is needed. Where is that? Like Sampath says, it continues but if to operate 370, something is to come from the CA, where will you bring that?... Virtually, the J & K Constitution is part of the Indian Constitution, in the larger sense. How do you work out the concurrence? It was a temporary provision only till the CA came in. You can't do anything once it is gone", submitted Mr. Parikh.
"The acceptance is to be by the J & K state assembly after the CA is dissolved?", asked the bench.
"In 57, it was said that no change can be moved in whatever has been incorporated. That is what the CA has done", advanced Mr. Parikh.
"That was only for the purpose of protecting...there was no mention of the CA in it", observed Justice Ramana.
"Even in 61, there was no mention of the CA for even amending the J & K constitution. It was to be done by the state legislative assembly...something on the lines of 68", added Justice Surya Kant.
"52 order said that 370 continues in force. They could have made any further changes after 52. The CA was there and its recommendation could have been taken. But how does that mean 370 continues? It doesn't show that. 368 is subject to 370. how does it support the view that it continues?", pressed the Senior counsel, in reference to Prem Nath Kaul's case.
"You are saying there is a conflict between Kaul and Damnoo? What is it that requires reference to a larger bench? Paraphrase it", said Justice Reddy.
"You can't ask for a reference to a larger bench because a constitution bench judgment does not refer to another constitution bench judgment. You can say so only if there is difference in propositions of the two", noted Justice Kaul.
"Concurrence by the government is not to be placed before or ratified by the CA", interjected Justice Reddy.
"Sampath said that after 54 order, there could be no more orders after the CA has dissolved", ventured Mr. Parikh.
"But the CA dissolved in 57. Kaul judgment could not have considered the question of the CA. So where is the conflict?", reflected Justice Reddy.
"The context of the factual scenario prevalent must be considered in your argument", added Justice Kaul.
"As far as the J & K Constitution is concerned, Sadar-i-riyasat became the governor. They amended the definition clause. For this, they had to go to 370(3). This was not permissible! If you are making an amendment by concurrence in 367, you have to go to 370(2). But even the consent of the state government in 370(2) requires the CA, which was not done!", argued Mr. Parikh.
Senior Advocate Zaffer Ahmed Shah, for Srinagar Bar Council, made submissions in the afternoon. Report of that may be read here.