The Supreme Court is scheduled to deliver on Monday its verdict on whether a batch of pleas, challenging the constitutional validity of the Centre's decision of August 5 last year to abrogate provisions of Article 370, would be referred to a larger seven-judge bench. A five-judge constitution bench headed by Justice N.V. Ramana had, on January 23, reserved its order on this issue.
Opposing the plea, the Centre had said that abrogation of provisions of Article 370, which granted special status to the erstwhile state of Jammu and Kashmir, has become a "fait accompli", leaving the sole option to accept the change. NGO People's Union of Civil Liberties (PUCL), Jammu and Kashmir High Court Bar Association and an intervenor have sought referring the matter to a larger bench.
Legal arguments
The petitioners have sought reference to a larger bench on the ground that two judgements of apex court—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 are in direct conflict each other and therefore the current bench of five judges could not hear the issue. 'Prem Nath Kaul versus Jammu and Kashmir' was a petition against Landed Estates Abolition Act, 1950, which the petitioner claimed was unconstitutionally enacted by the son of Maharaja Hari Singh—Yuvraj Karan Singh. Then the Supreme Court had held that Maharaja Hari Singh's legislative powers were not restricted by the Article. In Sampat Prakash vs Jammu and Kashmir—challenging some presidential orders that were passed under Article 370(1)—the court further held that “Article 370 never ceased to be operative and there could be no challenge on this ground to the validity of the orders passed by the president in exercise of the powers conferred by it.”
While the petitioners had argued that there were some conflicts in the two judgments, Attorney General K.K. Venugopal, appearing for the Centre, had said that they were not related to each other and dealt with different issues. He had said that the verdict in Prem Nath Kaul versus Jammu and Kashmir did not deal with Article 370 rather with the question whether the Maharaja had the legislative power or not. While referring to the verdict in Sampat Prakash versus Jammu and Kashmir, Venugopal had said though it dealt with some aspects of Article 370, it was not in direct conflict with the verdict in the Kaul case and therefore the present issue should not be referred to a larger bench.
Solicitor General Tushar Mehta, appearing for Jammu and Kashmir administration, had said he adopts the arguments of the Attorney General and favours no reference to a larger bench.
Senior advocate Rajeev Dhavan, appearing for Jammu and Kashmir People's Conference, had said that he supports the Centre on the question that no reference is needed to a larger bench. A number of petitions have been filed in the apex court 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.
What is Article 370 and how was it enacted?
The Article 370 of Indian Constitution had "temporary provisions with respect to the State of Jammu and Kashmir" which gave special powers to the state allowing it to have its own Constitution. According to it, the provisions of only Article 1—the idea of India—and Article 370 applied to the state. If the Centre wanted to extend in the state a central law on subjects included in the Instrument of Accession (IoA)—Defence, External Affairs and Communications—it needed "consultation" while for extending laws on remaining subjects, "concurrence" of the state government was mandatory.
The IoA signed on October 26, 1947 by the then ruler Raja Hari Singh had mentioned in Clause 5 that accession terms cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by him by a supplementary instrument. Article 35A of the Indian Constitution, which stemmed out of Article 370, gave powers to the Jammu and Kashmir Assembly to define permanent residents of the state, their special rights and privileges.
The Jammu and Kashmir Constitution, adopted on November 17, 1956, defines permanent resident as a person who was a state subject as of May 14, 1954 or has been a resident in the state for 10 years on that date with a legally acquired property. Non-permanent residents cannot acquire immovable property, get government employment, scholarships or other aid provided by the state government. The unique Article was inserted in the Constitution through a Presidential order in 1954 instead of an Amendment moved through Parliament.
-Inputs from PTI