Thread by @barandbench

The Supreme Court resumes arguments in the matter of Article 370 abrogation. Senior Advocate Sanjay Parekh resumes his arguments on behalf of the petitioners. #Article370 #Kashmir #JammuAndKashmir #SupremeCourt

Read what happened during yesterday's hearing in the challenge to Article 370 #Article370 #Kashmir #JammuAndKashmir #SupremeCourt bit.ly/30KdeWs

Parekh brings the attention of the Court to the Instrument of Accession and insists that the Bench must look at the word “Sovereignty” that has been reiterated in it.

He submits that the basis of the Instrument was to effectuate sovereignty of J&K. #Article370 #Kashmir

Referring to the Constituent Assembly debates, Parekh cites statements of Sardar Vallabhbhai Patel and N Gopalaswami Ayyangar on 17th October 1949, which brought to light the basis of the Special status of Kashmir. #Article370 #Kashmir

Parekh emphasises on the relevant excerpt from the debates and submits that the draftsmen of the Constitution of India intended the “Will of the People” to be of paramount importance in J&K. #Article370 #Kashmir

While further referring to excerpts of the debates, Parekh insists that the draftsmen intended that matters on governance in J&K be enforced only after consultation with the State Government. #Article370 #Kashmir

Parekh says that the modification of the Article 370 could only be done by the Constituent Assembly.

Justice SK Kaul asks Parekh if whatever was done both before or after the abrogation becomes void. #Article370 #Kashmir #supremecourtofindia #SupremeCourt

Justice Kaul enquires whether the Constituent Assembly was transient in character and that maybe the Central Government had to take action because the State did not. #Article370 #Kashmir #supremecourtofindia #SupremeCourt

Justice Ramanna to Parekh - “According to you, every order passed after the Constitution of J&K came to force is void?”

Justice Kaul - “There is a question mark on that argument”

#Article370 #Kashmir #supremecourtofindia #SupremeCourt

Unless it can be shown from the Constituent Assembly debates that the lawmakers intended “everything” to go through the Constituent Assembly, the argument advanced by Parekh lacks merit, Kaul J.

#Article370 #Kashmir #supremecourtofindia #SupremeCourt

Parekh says that matters mentioned in the Instrument of Accession was to be approved by the Constituent Assembly.

He further insists that concurrence of the State is paramount in matters of governance for state of J&K.

#Article370 #Kashmir #supremecourtofindia #SupremeCourt

While referring to Clause 3 of Article 370, Parekh argues that the amendment/modification of Article 370 can be done by the President. However, it must be first approved by the Constituent Assembly.

#Article370 #Kashmir #supremecourtofindia #SupremeCourt

Justice Ramanna asks Parekh to focus on the issue at hand and not on the merits of Article 370 arguments.

Parekh reiterates that prior recommendation of the Constituent Assembly is a must to modify the Article.

#Article370 #Kashmir #supremecourtofindia #SupremeCourt

Justice Kaul - What if the Constituent Assembly has ceased to exist? This can only be enforced if the Constituent Assembly continues to be in existence.

Parekh - Operatively, Article 370 was over after 1957.

#Article370 #Kashmir #supremecourtofindia #SupremeCourt

Justice Kaul: Are you saying that 370 only has historical significance?

Parekh: Yes Milords.

#Article370 #Kashmir #supremecourtofindia #SupremeCourt

Parekh now refers to the Constitutional Order (CO) 43 of 1952. He says that in respect of this, it is pertinent to remember that this shift in power in J&K was effectuated in consultation with the Constituent Assembly.

#Article370 #Kashmir #supremecourtofindia #SupremeCourt

While referring to several other CO’s, Parekh reiterates that the concurrence of the Government of J&K in necessary

#Article370 #Kashmir #supremecourtofindia #SupremeCourt

For modifying/ abrogating Article 370, article 373 has to be invoked. The “Will of the People” is paramount which can be conveyed by the Constituent Assembly only, Parekh reiterates.

#Article370 #Kashmir #supremecourtofindia #SupremeCourt

The Constitution of J&K is part and parcel of the Constitution of India, but in a different sense.
No exercise of Presidential Orders could have been carried out without the concurrence of the “Will of the People”, Parekh. #Article370 #Kashmir #supremecourtofindia #SupremeCourt

Parekh refers to the case of Prem Nath Kaul v. State of J&K, which offers an interpretation of Article 370.
“The Constitution-makers were obviously anxious that the said relationship should be finally determined by the Assembly of the State itself”.

#Article370 #Kashmir

Further, Parekh reads out relevant excerpts from Sampat Prakash vs. State of J&K. He states that Articles 368 and 370 have to be read in consonance with each other.

#Article370 #Kashmir #SupremeCourt #supremecourtofindia

While referring to Mohd. Maqbool Damnoo v. State of J&K, Parekh submits that CO 44 had been passed on April 10, 1965. This amendment was made in the Constitution of J&K. However, the same could not have been done for abrogation of #Article370 of the Constitution of India #Kashmir

Parekh reads out relevant excerpts from State Bank of India v. Santosh Gupta.
He submits that the crux of all of these judgements is to bring out the relevance of:
1) Instrument of Accession
2) Powers vested in Constituent Assembly #Article370 #Kashmir #supremecourtofindia

With this, Parekh concludes his submissions. The Bench asks the petitioners if anyone else wants to substantiate further. Senior Advocate appearing on behalf of Bar Association of J&K submits he’d like to add more perspective.

#Article370 #Kashmir #supremecourtofindia

Bench rises and will continue hearing the matter post lunch.

#Article370 #Kashmir #supremecourtofindia

The Bench assembles post lunch and resumes the hearing. Senior Advocate Zafar Ahmed Shah appearing for the J&K Bar Association begins his submissions. #Article370 #Kashmir #supremecourtofindia

Shah says the story of his state is different from the others. While taking the Court through history, Shah says that Kashmir had chosen not to accede to either India or Pakistan. #Article370 #Kashmir #supremecourtofindia

Shah says that fortunately or unfortunately so, on 26th October 1947, the Maharaja had to sign the instrument of accession. However, in terms of Clause 8 of the Instrument of Accession, only legislative powers lay with India. #Article370 #Kashmir #supremecourtofindia

Shah says that he wants the Court to introspect into the basis of Article 370 of the Constitution. The court must look at why this Article was ever enforced, Shah. #Article370 #Kashmir #supremecourtofindia

He says that the Court cannot ignore the following:

1) The instrument of Accession;
2) The issue of Kashmir lies with the UN;
3) The discourse about referendum by the Maharaja and his successors.

#Article370 #Kashmir #supremecourtofindia

Shah argues that the pertinent aspect to bring to light is that when a State accedes, the following are paramount:-
1) Instrument of accession
2) Stand still agreement
3) Merger Agreement.

#Article370 #Kashmir #supremecourtofindia

However, the State of J&K never signed the “stand still agreement” or the “merger agreement”. It remained independent. This, however gave birth to a peculiar trap of Article 370, Shah adds.

#Article370 #Kashmir #supremecourtofindia

Shah argues that the peculiar trap of 370 was that the state govt had to necessarily give its consonance to every act of the Union.

Power of the Maharaja emanating from clause 8 of the Instrument of Accession now vested with the State.

#Article370 #Kashmir #supremecourtofindia

Shah says that a separate Constitution denoted that the State shall have all powers of governance. There was never complete accession of J&K and the independent state never ceased to exist.

#Article370 #Kashmir #supremecourtofindia

The state government’s concurrence and consultation is necessary. There is no conflict between the Constitution of India and the Constitution of J&K. Thats how the Articles have been framed, Shah submits.

#Article370 #Kashmir #supremecourtofindia

"The whole Constitution of India can never be made applicable to us”, Shah contends.

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Both Constitutions have been working hand in hand. Sub clause (2) of Article 370 existed so that there would be no conflict between Constitution of J&K and the Indian Constitution, Shah submits.

#Article370 #Kashmir #supremecourtofindia

Shah - The Constitutions of India and J&K are parallel to each other. Article 370 was continuing.
Sampat Prakash judgment specifically stated that in light of the continuance of the circumstances, 370 has to stay.

#Article370 #Kashmir #supremecourtofindia

Shah - Article 370 abrogation was illegal and it had to be read down. All of a sudden, shockingly, the President of India states that all COs are superseded and all provisions of the Constitution will apply to the state of J&K. Then why not Article 368?

#Article370 #Kashmir

Atrocious that the reasoning given for the CO of August 5, 2019 was that J&K was in a bad state, underdeveloped, lacked amenities, infrastructure etc.
This was indeed a “Constitutional Fraud”, Shah adds.

#Article370 #Kashmir #supremecourtofindia

Attorney General KK Venugopal, at this juncture, interjects. Says that Shah must not use the phrase “Constitutional Fraud”.
“Why not?”, Shah argues. “It has been used in all the basic structure judgments!”

#Article370 #Kashmir #supremecourtofindia

Shah says that there is no reason for allowing other people to come and buy property in the state and/or a woman marrying outside the state would not acquire property rights thereon. It was enunciated in 1927 by the Emperor of “an Independent state”.
#Article370 #Kashmir

All these notifications by the Emperor are protected as well and cannot be overturned, Shah adds.

#Article370 #Kashmir #supremecourtofindia

Shah says that J&K Constitution can never be subordinate to the Constitution of India. We have full authority to make laws. The vestige of Sovereignty is not vested with any state in India, except ours.

#Article370 #Kashmir #supremecourtofindia

Shah takes the Court through the Offer of Accession of the Maharaja dated 26th October 1947.
He insists that the Maharaja had specifically put “Referendum” in the Instrument.

#Article370 #Kashmir #supremecourtofindia

Shah says that the “so-called separatists” are the ones who insist on the path of Referendum.
At this juncture, SG Tushar Mehta interjects. He says, "The nation knows who “Separatists” are. These statements are not appreciated."

#Article370 #Kashmir #supremecourtofindia

Justice Kaul tells the SG that some leeway can be given and everyone has their own perspective.
Senior Advocate Rajeev Dhavan states that these are some of the most brilliant arguments advanced.
#Article370 #Kashmir #supremecourtofindia

Shah continues. He points to Article 253 of the Constitution of India and insists on accountability of India’s international obligations.
He then refers to CO 48 of 1954.
Next, he refers to Constituent Assembly debates.

#Article370 #Kashmir #supremecourtofindia

Shah points to Ayyangar’s statements in the Assembly debates. This, he adds, sheds light on the intention of Plebiscite in the State of J&K.

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Shah contends, “Yes, we became your integral part. But only in terms of Accession. But the Legislative Assembly cannot be allowed to govern us.”

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Shah cites Promod Chandra Deb v. State of Orissa to state that the second and third steps for transfer of Sovereignty, i.e. Stand Still agreement & Merger Agreement respectively are paramount for integration.

#Article370 #Kashmir #supremecourtofindia

Shah adds that all other state rulers had fully integrated into the Indian Dominion except Kashmir.

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Advocate from the respondents' side interjects and states that the Merger Agreement was not of much relevance. “We have enough material on record to substantiate this”, he added.

#Article370 #Kashmir #supremecourtofindia

Kaul J. - You have to come to the issue that we’re currently hearing now. What proposition are you putting before us? You have to tell us and pen down your thoughts about the formulation of the conflict.
Shah - Will do so tomorrow.

#Article370 #Kashmir #supremecourtofindia

Bench rises. Arguments will continue tomorrow.

#Article370 #Kashmir #supremecourtofindia