Article 370 : Why Petitioners Seek Reference To Larger Bench On Challenge Against Repeal Of J&K Special Status?

On Monday, a 5-judge Constitution Bench of the Supreme Court comprising of Justices NV Ramana, SK Kaul, Subhash Reddy, BR Gavai and Surya Kant will pronounce the judgment on the preliminary issue of whether the petitions challenging the Presidential Orders issued under Article 370 to repeal the special status of Jammu and Kashmir should be referred to a larger Bench.The reference to a larger Bench is being sought on the argument that there exists a direct conflict between two judgments delivered by 5-judge Benches in the cases of Prem Nath Kaul v. State of Jammu and Kashmir [1959 AIR 749] and Sampat Prakash v. State of Jammu and Kashmir [1970 AIR 1118]. In this articles, both these judgments will be first discussed, followed by a discussion on the conflict pointed out by the petitioners between these two judgments.PREM NATH KAUL v. STATE OF JAMMU AND KASHMIRThe case is rooted in the challenge to the promulgation of Jammu and Kashmir Big Landed Estate Abolition Act by Yuvaraj Karan Singh. The issue arose when it was contended that, inter alia, the Yuvaraj did not have any authority to promulgate the Act as he had issued a proclamation on November 25, 1949 by which he sought to make applicable to his State the Constitution of India. As a result of this application, Article 370 came into use and the Yuvraj became a constitutional monarch without any legislative powers. The Act was subsequently held valid.Some of the arguments which were advanced to challenge the authority of the Yuvaraj are as follows:1. When Maharaja Hari Singh conveyed his powers to Yuvaraj Karan Singh by his proclamation of June 20, 1949, he himself was no more than a constitutional monarch and therefore, could not convey higher powers.This argument was rejected by the Bench as "prior to the passing of the Independence Act, 1947, the sovereignty of Maharaja Hari Singh over the State of Jammu and Kashmir was subject to such limitations as were constitutionally imposed on it by the paramountcy of the British Crown and by the treaties and agreements entered into between the Rulers of the State and the British Government. It cannot be disputed that so far as the internal administration and governance of the State were concerned, Maharaja Hari Singh, like his predecessors, was an absolute monarch; and that all the powers legislative, executive and judicial in relation to his State and its governance inherently invested in him."The Bench therefore stated that as per Section 3 of Regulation 1 of 1991 (1934) [this was promulgated to increase association of Maharaja's subjects in the matter of legislation and administration of the State], the Maharaja retained all of his pre-existing legislative, executive and judicial powers. The rest of the provisions of the Regulation were subject to the overriding powers preserved by the Maharaja.2. Passing of the Independence Act, 1947 delimited the powers and the sovereignty of the MaharajaThis argument was yet again rejected as "Whilst this was the true constitutional position the Independence Act, 1947, was passed by the British Parliament; and with the lapse of the British paramountcy, the Rulers of Indian States were released from the limitation imposed on their sovereignty by the said paramountcy of the British Crown and by the treaties in force between the British Government and States; this was, however, subject to the proviso prescribed by Section 7 of the Independence Act under which effect had to be given to the provisions of the agreements specified in the proviso, until they were denounced by the Rulers of the States or were superseded by subsequent agreements."This invariably meant that, despite the existence of the Independence Act, 1947, the Maharaja continued to be an absolute monarch of the State, and in the eyes of international law, he claimed the status of a sovereign and independent State. 3. Sovereignty of the Maharaja was affected by the provisions of the Instrument of Accession which was signed by him on October 25, 1947.This argument was found to be untenable. The Bench asserted that despite the existence of Clause 1 of the IOA, which conceded certain functions to authorities as may be vested in them by or under the Government of India Act, 1935, this was made subject to other terms of the IOA. On that note, Clause 6 of the IOA clearly and expressly recognized the continuance of the sovereignty of the Maharaja over his State.4. Proclamation of March 5, 1948 of the Maharaja which instituted a popular interim government headed by Sheikh Mohammad Abdullah translated into the Maharaja surrendering his sovereign rights and becoming a constitutional monarch. This argument was also rejected on the grounds that the constitution of a popular interim government was done to deal with the issue of tribal raids and was not done in the true constitutional sense of expression. "The Cabinet had still to function under the Constitution Act of 1996 (1939) and whatever policies it pursued, it had to act...

Article 370 : Why Petitioners Seek Reference To Larger Bench On Challenge Against Repeal Of J&K Special Status?

Radhika Roy

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