Article 370 issue:Larger bench only if conflict in earlier verdicts: SC
New Delhi, Jan
22: The Supreme Court Wednesday said it will refer the Article 370 issue to a
larger 7-judge Constitution bench only if satisfied that there is a direct
conflict in two earlier verdicts of the apex court which dealt with the matter.
petitioners are able to show a direct conflict between the two judgments —
Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat Prakash versus Jammu
and Kashmir in 1970 — which dealt with the issue of Article 370, it is not
going to refer the matter to a larger bench, the top court said.
Both the verdicts
were given by 5-judge benches.
Hearing the point
of reference on Wednesday, a 5-judge Constitution bench, headed by Justices N V
Ramana, was told by Jammu and Kashmir Bar Association that the Centre’s August
5 move last year to abrogate Article 370 was illegal and needed to be read
The bench, also
comprising Justices Sanjay Kishan Kaul, R Subhash Reddy, B R Gavai and Surya
Kant, said: “You have to show us that there was direct conflict in two
verdicts of apex court. Only then we will refer it to larger bench. You have to
show us that there was direct conflict.”
Zafar Ahmed Shah, appearing for the lawyers’ body said the Constitution of
India and that of Jammu and Kashmir are parallel to each other and Article 370
He said that
Sampat Prakash judgment of the apex court had specifically stated that in light
of the continuance of the circumstances, Article 370 has to stay.
Shah said both
the constitutions have been working hand in hand and sub clause (2) of Article
370 was there so that there is no conflict between them.
He said that in
Jammu and Kashmir there was only Instrument of Accession and no standstill
agreement or merger arguments.
“If any law
had to be made in Jammu and Kashmir, it could only be done in consultation or
concurrence with the state. Article 370 provided for concurrence and
consultation. Doing away with Article 370, you have snapped ties with the
state,” Shah said.
reference of the issue to a larger bench of seven judges.
Sanjay Parikh, appearing for the NGO, People’s Union for Civil Liberties
(PUCL), also sought reference to a larger constitution bench of seven-judges.
The bench asked
both Shah and Parikh to furnish by Thursday their submissions with regard to
reference of the issue in view of the direct conflict between two verdicts of
remained inconclusive and would continue on Thursday.
The top court was
on Tuesday told by senior advocate Dinesh Dwivedi that Article 370 of the
Constitution was the only “tunnel of light” which maintained the
relationship between the Centre and the erstwhile state of Jammu and Kashmir.
challenging the Centre’s decision taken on August 5 last year to abrogate
provisions of Article 370 contended that the Constitution of Jammu and Kashmir
cannot be repealed in exercise of powers under the Article, which gave special
status to erstwhile state.
appearing for an intervenor, Prem Shankar Jha, had said that the issue needs to
be referred to a larger bench as there is a dispute between two judgments of a
five-judge bench which dealt with provisions of Article 370.
The top court had
said that before going into the matter it would first hear the submissions on
Dealing with the
Presidential orders of August 5, last year, Dwivedi had said due to these orders
issued under Article 370 (1) and (3), all provisions of the Indian Constitution
have been applied to Jammu and Kashmir.
He said the
Constitution of Jammu and Kashmir was not created under the Constitution of
India or Article 370 and therefore J&K constitution cannot be repealed in
exercise of powers under Article 370.
advocate Raju Ramachandaran, appearing for bureaucrat-turned-politician Shah
Faesal, Shehla Rashid and other petitioners, had argued that in the scheme of
Article 370 while the democratic power is with the State, the executive power
is with the Union government.
The top court had
earlier raised a query as to who could be the competent authority to
reconstitute the Jammu and Kashmir Constituent Assembly to take a call on altering
the special status of the erstwhile state under Article 370 of the
have referred to the provision and said that only the Constituent Assembly,
which represents the will of the people, is empowered to make recommendation to
the President on any changes in the special status of J&K.
A number of
petitions have been filed in the matter including those of private individuals,
lawyers, activists and political parties and they have also challenged the
Jammu and Kashmir Reorganisation Act, 2019, which splits J&K into two union
territories — Jammu and Kashmir, and Ladakh.