J&K only acceded to India, August 5 move constitutional ‘fraud’: SC told

Will refer if direct conflict in earlier verdicts, says court

JAMMU: Kashmir had only acceded and it was not merged into the Dominion of India, a counsel representing the Jammu and Kashmir Bar Association challenging the Centre's decision to revoke Article 370 told the Supreme Court on Wednesday, as it sought the decision to be read down, besides referring to a larger bench.
Senior Advocate Zafar Ahmed Shah, appearing for the lawyers body also accused the Centre of committing a "constitutional fraud".
A five-judge bench headed by Justice N.V. Ramana and comprising Justices S.K. Kaul, R. Subhash Reddy, B.R. Gavai and Surya Kant is hearing the pleas challenging the revocation of Article 370 which granted special status to the erstwhile state of Jammu and Kashmir.
Hearing the point of reference on Wednesday, the bench was told by Jammu and Kashmir Bar Association that the Centre's August 5 move last year to abrogate Article 370 was illegal and needed to be read down.
Senior Advocate Zafar Ahmed Shah, appearing for the lawyers body said the Constitution of India and that of Jammu and Kashmir are parallel to each other and Article 370 was continuing.
He contended before the bench that the story of his state is different from others, and urged the court to examine the basis of Article 370 of the Constitution.
"The court must look at why this article was ever enforced," contended Shah.
He emphasised on three key aspects when a state accedes -- Instrument of Accession, Stand Still Agreement and the Merger Agreement. Jammu and Kashmir did not sign the Stand Still or the Merger agreement, and as a consequence it remained independent.
Shah insisted that a separate Constitution gave the state all the powers of governance, as there was never complete accession of the state, and the independent state never ceased to exist.
"The whole Constitution cannot be made applicable to the region," he contended before the top court.
Shah told the court that the governance should continue to vest in the people of the region of J&K.
"If any law had to be made in Jammu and Kashmir, it could only be done in consultation or concurrence with the state. Article 370 provided for concurrence and consultation. Doing away with Article 370, you have snapped ties with the state," Shah said.
"Council of ministers should agree (on the aspect of governance) and not Governor. Article 370 subsumes the sovereignty of the state. You have your Constitution and we have our Constitution. The merger was never done, but only accession was made," Shah submitted before the court.
He emphasised that both the Constitutions have been working hand in hand, and through Sub-clause (2) of Article 370, there would be no conflict between the Constitution of J&K and the Indian Constitution.
"The abrogation of Article 370 was illegal and it has to be read down. All of a sudden, shockingly, the President of India states that all Constitution Orders are superseded and all provisions of the Constitution will apply to the state of Jammu and Kashmir. Then why not Article 368?" Shah was quoted as saying.
Stating that the justification given by the government to abrogate Article 370 was "atrocious", Shah accused the Centre of committing a "constitutional fraud".
He said, "Atrocious that the reasoning given for the CO of 5 August, 2019, was that Jammu and Kashmir was in a bad state, underdeveloped, lacked amenities, infrastructure, etc."
He said that Sampat Prakash judgment of the apex court had specifically stated that in light of the continuance of the circumstances, Article 370 has to stay.
He sought reference of the issue to a larger bench of seven judges.
Attorney General K.K. Venugopal and Solicitor General Tushar Mehta raised objection when Shah contended that the revocation of Article 370 was a constitutional fraud.
He added that all other state rulers had fully integrated into the Indian Dominion except Kashmir. The arguments on the matter will continue on Thursday.
Senior advocate Sanjay Parikh, appearing for the NGO, People's Union for Civil Liberties (PUCL), also sought reference to a larger constitution bench of seven-judges.
The top Court said it will refer the Article 370 issue to a larger 7-judge Constitution bench only if satisfied that there is a direct conflict in two earlier verdicts of the apex court which dealt with the matter.
Unless the petitioners are able to show a direct conflict between the two judgements, both given by 5-judge benches -- Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat Prakash versus Jammu and Kashmir in 1970 -- which dealt with the issue of Article 370, it is not going to refer the matter to a larger bench, the top court said.
The bench, also comprising Justices Sanjay Kishan Kaul, R Subhash Reddy, B R Gavai and Surya Kant, said: "You have to show us that their was direct conflict in two verdicts of apex court. Only then we will refer it to larger bench. You have to show us that their was direct conflict."
The bench asked both Shah and Parikh to furnish by Thursday their submissions with regard to reference of the issue in view of the direct conflict between two verdicts of apex court.
The top court was on Tuesday told by senior advocate Dinesh Dwivedi that Article 370 of the Constitution was the only "tunnel of light" which maintained the relationship between the Centre and the erstwhile state of Jammu and Kashmir.
Petitioners challenging the Centre's decision taken on August 5 last year to abrogate provisions of Article 370 contended that the Constitution of Jammu and Kashmir cannot be repealed in exercise of powers under the Article, which gave special status to erstwhile state.
Dwivedi, appearing for an intervenor, Prem Shankar Jha, had said that the issue needs to be referred to a larger bench as there is a dispute between two judgements of a five-judge bench which dealt with provisions of Article 370.
The top court had said that before going into the matter it would first hear the submissions on reference.
Dealing with the Presidential orders of August 5, last year, Dwivedi had said due to these orders issued under Article 370 (1) and (3), all provisions of the Indian Constitution have been applied to Jammu and Kashmir.
He said the Constitution of Jammu and Kashmir was not created under the Constitution of India or Article 370 and therefore J&K constitution cannot be repealed in exercise of powers under Article 370.
Earlier, senior advocate Raju Ramachandaran, appearing for bureaucrat-turned-politician Shah Faesal, Shehla Rashid and other petitioners, had argued that in the scheme of Article 370 while the democratic power is with the State, the executive power is with the Union government.
The top court had earlier raised a query as to who could be the competent authority to reconstitute the Jammu and Kashmir Constituent Assembly to take a call on altering the special status of the erstwhile state under Article 370 of the Constitution.
The petitioners have referred to the provision and said that only the Constituent Assembly, which represents the will of the people, is empowered to make recommendation to the President on any changes in the special status of J&K.
A number of petitions have been filed in the matter including those of private individuals, lawyers, activists and political parties and they have also challenged the Jammu and Kashmir Reorganisation Act, 2019, which splits J&K into two union territories -- Jammu and Kashmir, and Ladakh.