New Delhi, Jan 23
The government on Thursday said the President's order of August 5, abrogating the special rights of Kashmiri people under Article 370, has become fait accompli.
In the day-long hearing, the government side strongly argued that the accession of J&K was irrevocable. J&K was part of history of integration of States. Its sovereignty was only temporary. “We are a Union of States,” Mr. Venugopal submitted.
Solicitor General Tushar Mehta said political arguments should not be made in court by petitioners.
Mr. Dhavan, however, contended that August 5 saw a State dismembered. A State was devoured by the power of the Union. If the procedure for abrogation was not followed, the action of the Union government was susceptible to judicial review. The State government's concurrence was not taken for the modification made in the fundamental nature and governance of J&K.
The “demotion” of Jammu and Kashmir to a Union Territory indicates that this can be done to any state, a petitioner argued today as the Supreme Court heard a bunch of petitions challenging the Centre's move to end the special status of the state under Article 370 and bifurcate it. The Court has deferred the decision on whether to send the case — currently being heard by a five-judge constitution bench — to a seven-judge bench.
“A state was demoted to the status of a Union Territory using Article 3 of the Constitution for the first time. If they (the Centre) do this for one state, they can do it for any state,” said senior advocate Rajiv Dhavan, representing one of the petitioners.
The centre, he said, “deliberately imposed President's Rule for this” so they do not have to take anyone's concurrence.
The government urged the court to not entertain any “separatist” arguments during the hearing of petitions challenging the order and the subsequent bifurcation of the State of Jammu and Kashmir into Union Territories.
Attorney General K.K. Venugopal submitted that the August 5 notification and the reorganisation of the State of J&K need to be accepted.
The government also opposed the plea for reference of the case to a larger Bench. Certain petitioners had sought a reference, claiming that two judgments of the apex court – Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat Prakash versus Jammu and Kashmir in 1970 — which considered Article 370 were in conflict with each other.
Senior advocate Rajeev Dhavan countered that the court should indeed enquire into the ‘Hand of God' that took away the “custodianship” of J&K on August 5. He also objected to referring the case to a larger Bench.
Attorney General KK Venugopal, who was representing the Centre, argued that consolidation of the country was the key in this.
“Sovereignty of Jammu and Kashmir was temporary and the important thing is consolidation of the country,” he said and read excerpts from VP Menon's book ‘Integration of the Indian States' (1956) to highlight the discord between Pakistan and the Maharaja.
Maharaja Hari Singh, the centre said, had asked for the aid of India due to the insurgents present in the state. “There were criminal activities taking place and records even suggest that these separatists trained by Pakistan had been specially sent to create havoc,” Mr Venugopal added.
There were heated exchanges between Mr Dhavan and Solicitor General Tushar Mehta, who was representing Jammu and Kashmir. Mr Dhavan objected when Tushar Mehta contended that “no argument favouring secession or giving wrong picture about Kashmir should be permitted. I would show who the real separatists are”.
“Political statements should not be made,” Mr Dhavan said. “The issue before this court is not whether Jammu and Kashmir is a part of India. The issue is on what terms is Jammu and Kashmir a part of India”.
Though some petitioners have asked that the case be sent to a larger bench, most petitioners and the Centre are opposed to it.
There is no conflict of earlier judgments of the top court regarding this, which would warrant sending this case to a larger bench, said the Attorney General.
The court stopped the argument and asked them to discuss the question of a larger bench.
The five-judge Bench led by Justice N.V. Ramana reserved orders on the preliminary plea that the issue should be referred to a larger Bench.
