[Article 370] [Day-6] Conflict Between Two Judgments: SC Reserves Order On Reference To Seven Judge Bench

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 Z.A. Shah, appearing on behalf of the Srinagar Bar Council, resumed his submissions with reference to constitutional autonomy guaranteed to the State of Jammu and Kashmir vide Article 370 of the Constitution of India.

Yesterday, he had emphasised on the importance of the documents which had been signed by all States except for J&K – Instrument of Accession, Standstill Agreement, and Merger Agreement.

Justice Kaul put a question to Mr. Shah as well as Attorney-General on whether the Instrument of Accession which had been signed by Maharaja Hari Singh differed from the Instrument of Accession signed by other princely states. Mr. Shah responded affirmatively.



Mr. Shah also shed a light on the difference between the two judgements 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]. He reiterated that he did not perceive a major difference in the fundamentals of the two judgements, but he agreed that there were some factors which Sampat Prakash had failed to consider while arriving at its conclusion.

Attorney-General K.K. Venugopal countered the submissions of Mr. Shah by stating that lack of holding of a plebiscite and the absence of a Standstill Agreement or a Merger Agreement were irrelevant as Jammu and Kashmir had explicitly admitted that it was an integral part of India. To support this, he referred to Section 3 of the Constitution of J&K which states that "The State of Jammu and Kashmir is and shall be an integral part of the Union of India."

The AG also commented on the how separatists supported the holding of a Referendum as they wished for the sovereignty of the State; they were "bad elements". Initially, Maharaja Hari Singh had entered into a Standstill agreement with Pakistan. However, there were reports that insurgents were being trained by Pakistan and sent specifically to create communal violence in the State. In order to put an arrest to the deteriorating law and order situation, the Maharaja approached the then Governor-General, Lord Mountbatten, for assistance from India. Excerpts from V.P. Menon's book, "The Integration of Indian States" were read by the AG to delineate the circumstances surrounding the Maharaja's decision to accede to India, and the relationship between the Maharaja and Pakistan. 

On the issue of conflict between the two judgements [Prem Nath Kaul and Sampat Prakash], the AG replied in negative, saying that no conflict existed as they were fundamentally the same. Additionally, in the case of State Bank of India v. Santosh Gupta, it had been categorically stated that the State of Jammu and Kashmir had no vestige of sovereignty outside Constitution of India. 

Solicitor-General Tushar Mehta then began his submissions by citing Central Board of Dawoodi Bohra v. State of Maharashtra [2005 (2) SCC 673] to clarify the aspect of Reference to a larger Bench. He also reiterated the submissions put forward by the AG, saying that due to absence of inconsistency between the two judgements, the question of reference to a larger Bench failed to arise.

Senior Advocate Rajeev Dhawan, appearing on behalf of Sajjad Lone of Jammu and Kashmir People's Conference, then began his submissions by stating that he opposed the question of reference. However, he wished to address the interpretation of the judgements which had been advanced by the representatives of the Union. He expressed shock at how a State had been demoted to the status of a Union Territory by exercising the powers granted under Article 3 of the Constitution of India. He also observed that if such an act could be done for one State, it could also be done for the other states.

On the issue of reference, Mr. Dhawan's submission was that a matter could only be referred to a larger Bench as per Article 143 of the Constitution of India. Therefore, the only legal principle which was applicable in cases of reference was the "Per Incuriam Rule". He also submitted that any amendment made to the Constitution had to be subjected to the "Basic Structure doctrine"; any amendment to the Constitution of J&K was to be done in accordance with Section 147 of their Constitution, and any amendment to the Constitution of India should be as per Article 368. Failure to follow these procedures rendered the actions susceptible to judicial review.

The views of Mr. Dhawan were adopted by Senior Advocate Chander Uday Singh (appearing for four time CPI(M) MLA M Y Tarigami) who stated that he agreed with Mr. Dhawan on the issue of reference. He submitted that miniscule differences between the two judgements did not warrant the reference of the matter to a larger Bench. However, there was a need for judicial review as the amendments made to both the Constitutions were violative of the Basic Structure doctrine. 



Senior Advocate Gopal Sankaranarayan then placed his submissions before the Court with regard to the importance of Article 370. He stated that Article 370(3) categorically mentioned that the recommendation of the Constituent Assembly was required in order to proceed with any changes. Therefore, existence of the Constituent Assembly (a body which came into being in the year 1951 and was dissolved in the year 1957) was pertinent for any amendment/modification. Doing away of Article 370 ostensibly meant that any link between the State and the Union would be snapped. 



Post the submissions, Senior Advocates Dinesh Dwivedi and Sanjay Parikh submitted hteir rebuttals on the issue of reference. Mr. Dwivedi argued that the provision was not temporary and, as could be derived from the will of the framers, there was a need to keep the Constitutions separate. The case of Mohd. Maqbool Damnoo v. State of Jammu and Kashmir was cited to buttress the argument. Mr. Parikh proceeded to submit his propositions on the issue of reference and cited examples from the Constituent Assembly debates. The hearing now stands concluded.

The Bench has reserved its Order on the issue regarding the reference of the matter to a 7-judge Bench.