Thread by @barandbench

The Supreme Court is hearing petitions challenging the abrogation of Article 370

Yesterday, Senior Advocate Zafar Ahmed Shah argued for the Petitioners. He will continue his submissions today.

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Justice Kaul puts a question to Shah - “Was the Instrument of Accession signed by Kashmir different from the one signed by other princely states?”

Shah answers - Substantially no.

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Shah says the principle difference is of the trap of 370 and the two succeeding steps - Standstill Agreement and Merger agreement, which were entered into by others except Kashmir. #Kashmir #Article370 #SupremeCourt

Shah argues that Sampat Prakash and Prem Nath Kaul are different and diverging but he would not go into the merits of the cases. #Kashmir #Article370 #SupremeCourt

Shah concludes. Before Attorney General KK Venugopal begins his arguments, Senior Advocate Rajeev Dhavan says that he supports the AG in so far as the question of reference to a larger bench is concerned.

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AG Venugopal begins his submissions. "To say that Separatists are not bad elements is a wrong statement."

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AG, while differing from Shah’s historical account, says that various credible books and records suggest that tribesmen who were trained in combat were sent by Pakistan. Insurgent circumstances erupted. The Maharaja then asked for India’s help.

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While referring to Section 3 of the Constitution of J&K, AG says that the question of referendum does not arise in light of this permanent declaration of J&K being an integral part of India. He then takes the Court through its Preamble.

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AG argues that there is no question of plebiscite in light of the explicit declarations of J&K to be an integral part of India in their own Constitution. He apprises the Court of Section 6 & 12 to reiterate this.

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To say that the Plebiscite did not take place and/or the Standstill and Merger Agreement was not entered into are irrelevant arguments, AG adds.

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AG says that the Maharaja had entered into a Standstill agreement with Pakistan and Pakistan had in fact violated this. Truckloads of tribesmen trained in combat were sent by Pakistan to overtake the state.

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AG reads an excerpt from VP Menon’s book “Integration of the Indian States” to highlight the discord between Pakistan and the Maharaja.

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AG apprises the Court with the circumstances under which the Maharaja had actually decided to accede to India. The Instrument of Accession highlighted the plight of the Kashmiris.

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AG says that he shall now apprise the Court with the question of reference.

He starts with a reading of Article 370 of the Constitution of India.

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AG cites the Prem Nath Kaul Judgment (1959), the relevant excerpt of which states that -
“On October 25, 1947, the Maharaja signed an Instrument of Accession with India which had then become an Independent Dominion”.

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AG says that Prem Nath Kaul is not contrary to the Sampat Prakash Judgment, and so, the question of reference to a larger bench does not arise.

#Kashmir #Article370 #supremecourtofindia #SupremeCourt

AG says Prem Nath Kaul judgment has nothing to do with Article 370. It deals with the powers of the Constituent Assembly and the effect of the transfer of powers from the hands of Yuvraj Karan Singh.

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AG says that the events that transpired prior to the notifications of 5th and 6th August 2019 are of no significance presently before the Court.

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AG cites the Sampat Prakash Judgment (1969) and says that the operation of Article 370 and ancillary questions surrounding the same have been, in fact, answered in this judgment.

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AG now cites Santosh Gupta Judgment(2017)
“It is thus clear that the State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India.”

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AG reads Article 1 of the Constitution of India. He says that J&K became a part of India vis-á-vis the Constitution of India. Article 370 only brings out legislative powers of the state of J&K, he adds.

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AG KK Venugopal concludes his arguments.
SG Tushar Mehta begins his submissions. He says that he shall apprise the Court on behalf of J&K.

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SG - No inconsistency between the two judgments and therefore there exists no question of reference to a larger bench.

Further, SG says that Central Board of Dawoodi Bohra case clarifies the aspect of reference to larger Benches.

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At this juncture, SG Mehta says that he would like to show who the real Separatists are. He says that the KNS had reported on this recently.
Rajeev Dhavan interjects: “Politicial statements are not welcome.”
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SG says, in reply to Dhavan - “The arguments advanced by Shah were political and matters of justifying secessionist movements were put forward in the court. This should not have been done and must not be allowed.”

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Justice Kaul, while putting an end to this heated exchange, says that the Court must move forward on the question of reference.

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Rajeev Dhavan begins his submissions on the question of reference and says he is opposing it. He says that the AG went on a historical trip which was in fact irrelevant.

Justice Kaul - “We heard Mr. Shah on history. We had to hear the AG as well”.

Dhavan - "Practice of the court is that the AG is heard on anything and everything, but thats a different thing."

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Dhavan contends that even though he agrees there is no need for reference to a larger bench, he disagrees with the Union’s interpretation of the judgments.

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Dhavan says that Prem Nath will have to be understood in light of “competence”, while Sampat Prakash is an extension of detention cases.

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"Indeed, the widest amplitude will have to be given to the State for modification in terms of Article 370. However, the question is, at what cost?", Dhavan argues.

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If a matter is referred beyond 143 of the Constitution, the only aspect which is important to keep in mind is the Per Incurium Rule, Dhavan contends.

#Article370 #Kashmir #SupremeCourt

Dhavan refers to a map of J&K.

SG interjects, says what Dhavan is saying is irrelevant.

Dhavan replies. “If AG could bring Nehru in his historical trip, I can surely show milords a map. I do not have to take your permission.”

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Kaul J . - What do you want to show with this map?

Dhavan says that a great state is in occupation of two powers and has been dismembered into Union Territories.

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Dhavan contends that if a state in our country can be dismembered under the garb of Article 3 of the Constitution of India, any State can be.

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Dhavan says that the the current situation is a unique situation and has never arisen.

The question of reference therefore does not arise, he adds.

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Dhavan insists that the redundancy question of Article 370 has indeed never arisen before.

He contends that the amendment must submit to the Basic Structure argument.

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Dhavan argues that effectively, an amendment can only be made in tune with Article 147 of the Constitution of J&K.

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Dhavan contends that non-exercise of power can be subject of Judicial Review. Not the exercise of it thereto.

Further, he contends that Article 370 and its modification was to be in concurrence with the Constituent Assembly.

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Dhavan says,

“Why was the custodianship of Jammu & Kashmir taken away?”

He adds that there was “no hand of God” which may justify this and no book and no legal provision can effectively illustrate this.

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Dhavan concludes. Senior Advocate Dinesh Dwivedi prays that the Court grant him half an hour for making submissions on the proposition of opposing reference.

The Bench grants it and rises for lunch.

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Senior Advocate Chander Uday Singh begins his submissions in the post lunch session.
He states that he appears in the petitions filed for Mohd. Yusuf Tarigami, amongst others.

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Singh says he adopts Dhavan's arguments on the point of reference, but would like to add more perspective.
He reiterates that there is no need for a reference of the current issue to a larger bench.

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Singh says there might be a minuscule discrepancy between Sampat Prakash & Prem Nath Kaul judgments.

However, they are not so wide so as to refer the questions of law to a larger Bench, he adds.

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Singh reads out relevant excerpts of State of J&K v. MS Farooqui to bring out the transient structure of the Constitution vis-á-vis applicability in J&K.

With this, he concludes, emphasising on the Basic stucture model.

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Senior Advocate Gopal Sankaranarayanan appearing for one of the petitioners.

He says that Article 370(3) could only be called upon between 1951 to 1957. This was reiterated in the PN Kaul Judgment. The Constituent Assembly has to be operative for invocation, he argues.

Sankaranarayanan says that what follows from the judicial interpretations is that the application of Article 370 on J&K could only decided by the Constituent Assembly.

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Essentially, the abrogation of Article 370 exhumes the link between India & J&K, Sankaranarayanan submits. He concludes.

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Senior Advocate Dinesh Dwivedi begins his submissions.
He puts forth a question to the Court:

“All the Articles of the Constitution of India are amendable. Does that mean they are all temporary? In my humble submission, they are not", Dwivedi adds.

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Dwivedi: We are being constantly accused in a bad light, even though we are only advancing our arguments.

Justice Kaul: You need to solve this amongst yourselves!

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Dwivedi says that the interpretation of Article 370 cannot be different on the basis of context.
The question which is relevant here is whether the entire Executive order of the Constitution of J&K can be wiped out by Article 370, he adds.

#Article370 #Kashmir #SupremeCourt

Dwivedi contends that the Constitutions of India and J&K are mutually exclusive. The Constituent Assembly debates, very evidently brings out the intention of the draftsmen to keep them separate.

One cannot touch the other, he adds.

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Dwivedi cites Mohd. Maqbool Damnoo v. State of J&K to reiterate the exclusivity of both Constitutions.

With this, he concludes his submissions.

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Senior Advocate Sanjay Parikh says that he shall not repeat what has been said. He insists that his propositions on reference be heard.

Parikh reads excerpts of Constituent Assembly debates.

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Parikh says that there must be tolerance when counsel are making their submissions. We don’t want to take names.

Dwivedi says “The words "sheer madness" have been used to describe us.”

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With this, the hearing concludes.

Justice Ramana says that the Bench needs to decide the preliminary issue.

The Bench reserves orders on the issue of reference and rises.

#Article370 #Kashmir #SupremeCourt

Abrogation of Article 370: Supreme Court reserves orders on whether issue should be referred to larger Bench #SupremeCourt #articleofimpeachment #Kashmir #JammuAndKashmir

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