New Delhi: The Supreme Court Wednesday 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 — 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.
Both the verdicts were given by 5-judge benches.
Hearing the point of reference on Wednesday, a 5-judge Constitution bench, headed by Justices N V Ramana, 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.
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.”
Senior Advocate Zafar Ahmed Shah, appearing for the J&K High Court Bar Association said the Constitution of India and that of Jammu and Kashmir are parallel to each other and Article 370 was continuing.
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.
Shah said both the constitutions have been working hand in hand and sub clause (2) of Article 370 was there so that there is no conflict between them.
He said that in Jammu and Kashmir there was only Instrument of Accession and no standstill agreement or merger arguments.
“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.
He sought reference of the issue to a larger bench of seven judges.
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 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 hearing remained inconclusive and would continue on Thursday.
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.
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. PTI

Press Trust of India