New Delhi, January 23: The Centre on Thursday told the Supreme Court that the sovereignty of Jammu and Kashmir was temporary and the most important thing is consolidation of the country.
The court is hearing a clutch of petitions challenging various aspects of Article 370, which was abrogated by the Centre in August last year. The five-judge Constitution bench comprises of Justices NV Ramana, SK Kaul, R Subhash Reddy, BR Gavai and Surya Kant.
Appearing for the Centre, Attorney General KK Venugopal said, “In the Prem Nath Kaul judgement of 1959, these were the specific words used: ‘On 25.10.1947, the Maharaja signed an Instrument of Accession with India which had then become an independent Dominion’.”
He also read an excerpt from VP Menon’s book ‘Integration of the Indian States’ (1956) to highlight the discord between Pakistan and the Maharaja. “The purpose for this story of integration of the Indian states is to show the consolidation of the country. I want to show that the sovereignty of J&K was indeed temporary. We are a Union of States,” Venugopal said. Menon was an Indian civil servant who was the constitutional adviser to at least three British Viceroys.
The Attorney General also said that separatists were trained and sent by Pakistan to create havoc in Kashmir.
“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. Maharaja 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,” said the Attorney General.
He then referred to the two past judgements of the Supreme Court – Prem Nath Kaul (1959) and Sampat Prakash (1968) – on Article 370 which had been cited by the lawyers of the petitioners to transfer the case to a larger, seven-judge bench. The Attorney General said that there is no conflict in both the judgement (on Article 370) and the case shouldn’t be referred to a larger bench.
On Wednesday, senior advocate Dinesh Dwivedi, appearing for one of the petitioners, had told the bench that the issue needs to be referred to a larger bench as there is a dispute between two judgements which dealt with provisions of Article 370.
Dealing with the Presidential orders of August 5 last year, Dwivedi had said that due to these orders issued under Article 370 (1) and (3), all provisions of the Indian Constitution have been applied to Jammu and Kashmir.
“This virtually abolishes the Constitution of Jammu and Kashmir. It’s a case of implied repeal where a Constitution has been repealed by an executive exercise of powers,” he argued. Dwivedi said the Centre has limited powers to legislate when it comes to Jammu and Kashmir by virtue of the Instrument of Accession.
“Article 370 was the only tunnel of light connecting the Centre to erstwhile state of Jammu and Kashmir. The Article 370 required that action of government of India should have concurrence of Jammu and Kashmir constituent assembly, which was dissolved in 1957 after framing the Constitution of Jammu and Kashmir,” Dwivedi had said.
He had 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.