Article 370 factor:Better bench provided that warfare in previous verdicts: SC

New Delhi, Jan
22: Senior Advocate Zaffar Ahmed Shah, appearing for the Srinagar Bar Council,
Wednesday commenced his submissions in the after-noon session before the
5-judge bench considering the validity of abrogation of special status of Jammu
and Kashmir.

He submitted that
the story of the State could not be equated to others and the history of the
State had to be borne in mind before any decision could be rendered.

While referring
to the Instrument of Accession (IOA), Shah stated the IOA gives power to the
Union to legislate on specifically three matters, i.e. defence, communication
and external affairs. Clause 8 of the IOA allows the Rules to retain the
“powers, authority and rights” except on those matters enumerated in
the Schedule.


impacted the shape of Article 370? Why was Jammu and Kashmir treated as it is
and not as a part of the Union like the other States?”

 Shah delved into the history of the country
and submitted that J&K, Junagadh and Hyderabad were the only the States
left which had not readily acceded to the Union of India. However, the
circumstances for J&K were different.

“In the case
of all other States, there were primarily three documents which had been

1. IOA – This
meant that you have not fully seceded from the Union.

2. Standstill
agreement – This meant that the state of affairs were to be at a standstill.

3. Merger
agreement – This categorically entails that the life of the State comes to an
end as it had fully merged with the Union.

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In the case of
J&K, there was only an IOA, and no standstill agreement or merger
agreement.”, he explained.

On the basis of
the aforementioned submission, if any law had to be legislated in J&K, it
could only be done in consultation or concurrence with the State. Article 370
provided that whatever the legal effect was, this consultation/concurrence had
to be taken. Therefore, apart from the three matters enumerated in the Schedule
of the IOA, for the rest, the State had to be consulted.

In general, for
other States, if the Parliament intended to legislate for a State, first a
constitutional entry had to be made applicable to the State and then only the
law could be legislated. However, Article 370 found a different way which left
the legislation to the State Government. Therefore, there was a deliberate
intention behind retainment of the Article; doing away with it would entail
snapping ties with the State.

“This allows
the State its own Constitution and allows it to regulate its own affairs. This
is why we have a separate Constitution. Otherwise there would not have been any
need. The framers of the Constitution understood that a need existed for
separate provisions. We have a situation where we have two Constitutions
functioning in parallel. There has been a conscious effort to continue

 Shah submitted that in order to avoid
conflicts between the two Constitutions, the concept of concurrence came into
being. The two Constitutions worked hand-in-hand. For instance, Presidential
Order of 1953 modified the term in the Explanation from “Maharaja” to
“Sadar-i-Riyasat”. However, before that modification took place, the
Constitution of J&K was amended in order to avoid conflict.

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With reference to
Sampat Prakash decision,  Shah stated
that while the judgement envisioned Article 370 as a temporary provision, it
also highlighted the fact that situation under which Constitution of J&K
had been enacted, it had failed to change.

“So, on the
basis of the situation, the provision is still continuing. Article 370 has to
stay as long as the situation remains the same.”

 Shah then expressed shock at the events which
transpired on 05.08.2019, wherein the Presidential Order C.O. 272 was
instituted whereby Constitution (Application to Jammu and Kashmir Order, 1954
(and its subsequent amendments) were superseded and all provisions of the
Constitution of India were to be applied to J&K. The question raised
by  Shah was that if this was indeed the
case, then why did Article 368 (Power of Parliament to amend the Constitution
and procedure therefor) not apply.

He also raised
the issue regarding the substitution of the Constituent Assembly with the
Legislative Assembly.

“The power
of the CA is unlimited; its roots are in the will of the people. It is beyond
challenge. How can they substitute it? The court will have to go into the depths
of this issue. I am merely describing the contours of this controversy.”

He then proceeded
to refer to the Santosh Gupta case wherein the Court had observed that the
Constitution of J&K was subordinate to the Constitution of India. It also
mentioned the issue of constitutional as well as parliament sovereignty. The
Court had further observed that the vestige of sovereignty did not remain for
any State.

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With regard to
that, Shah stated: “The Court observed that the vestige of sovereignty
does not remain for any State. But, I submit that this does not hold true for
the State of J&K. We have our constitutional autonomy. It is a guaranteed
right for J&K. It is guaranteed by the Constitution of India as well as the
framework and working of both the Constitutions. Similarly, Clause 8 of the
IOA, starting with a non-obstante clause, also states that the sovereignty of
the State is not affected.”

 Shah then delineated the issue that being
integral, in terms of the IOA, to the Union did not deposit in the Union the
absolute power of governance; this was denoted by the existence of a separate
Constitution. The power of governance continues to vest in the people of the

“It needs to
be understood in the context of IOA. For governance, we will continue to have
our power to legislate and this will be with our concurrence and consultation.
Article 370 subsumes the sovereignty of the State. Within the framework of the
Constitutions, you have yours and we have ours. This was the method which has
been followed in the last 70 years.”

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