SC reserves verdict on referring Art 370 pleas to 7-judge Bench

New Delhi, January 23

Should petitions challenging the nullification of Article 370 of the Constitution be referred to a seven-judge Constitution Bench of the Supreme Court?

A five-judge Bench headed by Justice NV Ramana on Thursday reserved its verdict after hearing arguments from senior advocates Zaffar Ahmad Shah, CU Singh, Dinesh Dwivedi, Rajeev Dhavan, Sanjay Parikh and Gopal Sankaranarayanan for petitioners and Attorney General KK Venugopal and Solicitor General Tushar Mehta on behalf of the government.

The Bench — which also included Justice Sanjay Kishan Kaul, Justice R Subhash Reddy, Justice BR Gavai and Justice Surya Kant — is seized of petitions challenging the nullification of Article 370 and the Jammu and Kashmir Reorganisation Act 2019, which divided the state into two union territories — Jammu and Kashmir, and Ladakh. On Wednesday, Shah – representing Kashmir Bar Association — and Parikh – representing People’s Union for Civil Liberties — had requested the Bench to refer the matter to a seven-judge Bench, contending that the Supreme Court delivered conflicting verdicts on Article 370 in Prem Nath Kaul versus Jammu and Kashmir (1959) and Sampat Prakash versus Jammu and Kashmir (1970). The Bench had said it would refer the matter to a seven-judge Constitution Bench only if it was satisfied that there was a direct conflict between the two verdicts.

On Thursday, the Attorney General and the Solicitor General Tushar opposed the idea of sending the matter to a larger Bench of seven judges.

Senior advocates Dhavan and Singh – representing some of the petitioners – supported the government’s view on this limited point even as they said they didn’t agree with the government’s interpretation of the case law. There might be a miniscule discrepancy between the verdicts in the two cases but they were not so wide so as to require referring the matter to a seven-judge Bench, they said.

Almost all advocates representing various petitioners emphasised that powers under Article 370(3) could be invoked only if the Constituent Assembly of Jammu and Kashmir was in existence.

Shah had on Wednesday sought to draw a distinction between accession and merger and contended before the Supreme Court that Jammu and Kashmir didn’t merge with India like other states. “The Constitution of Jammu and Kashmir 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,” Shah had said.

Dwivedi, representing Prem Shankar Jha, had on Tuesday said Article 370 was the only “tunnel of light” between India and J&K. The Constitution (Application to Jammu & Kashmir) Order, 2019, was introduced to supersede the Constitution (Application to J&K) Order, 1954. The 2019 Order provided that all provisions of the Constitution of India would apply to the state of Jammu & Kashmir, with a few exceptions and modifications. — TNS