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.

Unless the 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 down.

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.”

Senior Advocate 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 was continuing.

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.

He sought reference of the issue to a larger bench of seven judges.

Senior advocate 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 apex court.

The hearing 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.

Petitioners 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.

Dwivedi, 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 reference.

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.

Earlier, senior 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 Constitution.

The petitioners 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.

New Delhi, Jan 22: Senior Advocate Zaffar Ahmed Shah, appearing for the Srinagar Bar Council, Wednesday commenced his submissions in the after-noon session before the 5-judge bench considering the validity of abrogation of special status of Jammu and Kashmir.

He submitted that the story of the State could not be equated to others and the history of the State had to be borne in mind before any decision could be rendered.

While referring to the Instrument of Accession (IOA), Shah stated the IOA gives power to the Union to legislate on specifically three matters, i.e. defence, communication and external affairs. Clause 8 of the IOA allows the Rules to retain the “powers, authority and rights” except on those matters enumerated in the Schedule.

 

“What impacted the shape of Article 370? Why was Jammu and Kashmir treated as it is and not as a part of the Union like the other States?”

 Shah delved into the history of the country and submitted that J&K, Junagadh and Hyderabad were the only the States left which had not readily acceded to the Union of India. However, the circumstances for J&K were different.

“In the case of all other States, there were primarily three documents which had been executed:

1. IOA – This meant that you have not fully seceded from the Union.

2. Standstill agreement – This meant that the state of affairs were to be at a standstill.

3. Merger agreement – This categorically entails that the life of the State comes to an end as it had fully merged with the Union.

In the case of J&K, there was only an IOA, and no standstill agreement or merger agreement.”, he explained.

On the basis of the aforementioned submission, if any law had to be legislated in J&K, it could only be done in consultation or concurrence with the State. Article 370 provided that whatever the legal effect was, this consultation/concurrence had to be taken. Therefore, apart from the three matters enumerated in the Schedule of the IOA, for the rest, the State had to be consulted.

In general, for other States, if the Parliament intended to legislate for a State, first a constitutional entry had to be made applicable to the State and then only the law could be legislated. However, Article 370 found a different way which left the legislation to the State Government. Therefore, there was a deliberate intention behind retainment of the Article; doing away with it would entail snapping ties with the State.

“This allows the State its own Constitution and allows it to regulate its own affairs. This is why we have a separate Constitution. Otherwise there would not have been any need. The framers of the Constitution understood that a need existed for separate provisions. We have a situation where we have two Constitutions functioning in parallel. There has been a conscious effort to continue this.”

 Shah submitted that in order to avoid conflicts between the two Constitutions, the concept of concurrence came into being. The two Constitutions worked hand-in-hand. For instance, Presidential Order of 1953 modified the term in the Explanation from “Maharaja” to “Sadar-i-Riyasat”. However, before that modification took place, the Constitution of J&K was amended in order to avoid conflict.

With reference to Sampat Prakash decision,  Shah stated that while the judgement envisioned Article 370 as a temporary provision, it also highlighted the fact that situation under which Constitution of J&K had been enacted, it had failed to change.

“So, on the basis of the situation, the provision is still continuing. Article 370 has to stay as long as the situation remains the same.”

 Shah then expressed shock at the events which transpired on 05.08.2019, wherein the Presidential Order C.O. 272 was instituted whereby Constitution (Application to Jammu and Kashmir Order, 1954 (and its subsequent amendments) were superseded and all provisions of the Constitution of India were to be applied to J&K. The question raised by  Shah was that if this was indeed the case, then why did Article 368 (Power of Parliament to amend the Constitution and procedure therefor) not apply.

He also raised the issue regarding the substitution of the Constituent Assembly with the Legislative Assembly.

“The power of the CA is unlimited; its roots are in the will of the people. It is beyond challenge. How can they substitute it? The court will have to go into the depths of this issue. I am merely describing the contours of this controversy.”

He then proceeded to refer to the Santosh Gupta case wherein the Court had observed that the Constitution of J&K was subordinate to the Constitution of India. It also mentioned the issue of constitutional as well as parliament sovereignty. The Court had further observed that the vestige of sovereignty did not remain for any State.

With regard to that, Shah stated: “The Court observed that the vestige of sovereignty does not remain for any State. But, I submit that this does not hold true for the State of J&K. We have our constitutional autonomy. It is a guaranteed right for J&K. It is guaranteed by the Constitution of India as well as the framework and working of both the Constitutions. Similarly, Clause 8 of the IOA, starting with a non-obstante clause, also states that the sovereignty of the State is not affected.”

 Shah then delineated the issue that being integral, in terms of the IOA, to the Union did not deposit in the Union the absolute power of governance; this was denoted by the existence of a separate Constitution. The power of governance continues to vest in the people of the State.

“It needs to be understood in the context of IOA. For governance, we will continue to have our power to legislate and this will be with our concurrence and consultation. Article 370 subsumes the sovereignty of the State. Within the framework of the Constitutions, you have yours and we have ours. This was the method which has been followed in the last 70 years.”

Ganderbal, Jan 22: Seemingly giving in to the public pressure, Union Minister of State for Home Affairs G Kishan Reddy on Wednesday said investors desiring to setup industry in Jammu and Kashmir, will be allotted government land only.

 “People need not to worry as only government land will be allotted to the investors for setting up their units. No private land shall be acquired for setting up industry by any outside investor,” Reddy said while addressing people at Mini-Secretariat, Beehama here.

As a part of Centre’s reach out programme, Reddy landed in Srinagar on Wednesday morning and straightaway headed to Ganderbal. He was flanked by Advisor to Lt. Governor, Rajeev Rai Bhatnagar, Principal Secretary Home Affairs, Shaleen Kabra, DDC, Ganderbal Hashmat Ali Khan and other officers.

 

Multiple delegations including Panches, Sarpanches, Block Development Council members and youth activists called on Reddy.

“Kashmir lagged behind because of the unabated corruption in the last 70 years.  But now PM Modi led government is committed to equitable development, “he said.

The union minister said central government’s schemes will be properly utilized to benefit the people.

Enamored by Kashmir’s scenic beauty, Reddy recalled how famous Bollywood personalities used to visit Kashmir for shooting their movies.

“But for the last few years, very few films have been shot here. We will now create an environment so that more and more actors come to Kashmir for shooting movies,” he said.

Ready hailed the administration for successfully holding “free and fair” Block Development Council (BDC) polls in the state.  Calling BDCs as “voice of people”, Reddy said they will redress the issues raised by them during the meeting.

Reddy also assured the PDD employees that despite Corporation taking over the power sector; it will have no bearing on them. “The Corporation is for the betterment of employees and people in particular,” he said.

Reddy later inaugurated eight new projects worth Rs 20.8 crores in Ganderbal.

He assured people that development, peace and economic prosperity would soon change fortunes of people in Jammu and Kashmir.

While addressing the gathering, Reddy said that the agenda to visit the place is to meet people, listen to their issues and come up with a developmental plan in all spheres.

The Minister distributed pension cards among the widows and downtrodden under Prime Minister’s Pension Yojana.

He said that the Union government has come up with the concept of Golden Card through which deserving segments of the society can afford the treatment of upto Rs 5 lakh. He said so far 3.5 lakh families have received this card in J&K.

In his address, the Minister assured the people of the area that the Union government is committed to develop villages on modern lines and electrification of all inhabited villages through the Saubhagya scheme is one step towards that.

The Minister later e-inaugurated multiple developmental projects in the district, with a total estimated cost of Rs 20.39 crores, which includes construction of multipurpose hall at Government Degree College, construction of mini pavilion block at sports stadium, construction of 100 bedded girls hostel, development of Nininara Island in the Manasbal Lake.

He also laid foundation stone for the construction of two lane byepass road from Ganderbal to Duderhama upto district head office complex, which he said was a long pending demand of people and will serve as a byepass to Kheerbawani temple. He said that road connectivity is imperative for growth and development of an area and the Centre is pushing hard towards it.