New Delhi: A 5-judge Constitution Bench of the Supreme Court on Thursday reserved its decision, keeping in abeyance the referral of the petitions challenging the scrapping of Article 370 on Kashmir to a larger 7-judge Bench.
The Bench headed by Justice N B Ramana, No 2 after the CJI, wrapped up the hearing and the arguments on the issue of reference to the larger Bench, which has been opposed by the Centre. If the issue goes to a larger Bench, it will have to consider the case de novo (afresh -- starting from the beginning).
Other judges on the Bench that concluded the hearing on Thursday were Justices SK Kaul, R Subhash Reddy, BR Gavai and Surya Kant.
A score of petitions were filed after the Modi government scrapped Article 370 in August last year and bifurcated Jammu and Kashmir into two Union Territories, namely, Jammu and Kashmir and Ladakh, allegedly in violation of the local and international laws and norms.
On the last day of hearing, the court was told that Jammu and Kashmir never merged into the dominion of India and hence the Government cannot revoke its special status.
Kashmiri advocate Zafar Ahmed Shah, representing the High Court Bar Association of J&K, created a flutter by describing revocation of Article 370 as a "constitutional fraud." Attorney General KK Venugopal and Solicitor General Tushar Mehta pro-tested at his remarks.
Shah, however, insisted that Kashmir had a different status compared to all other states, where the rulers had fully integrated into the Indian dominion on gaining independence and as such it cannot be treated at par with other princely states.
He said the story of Kashmir was different from other Indian states 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."
Shah insisted that a separate Constitution gave Jammu and Kashmir all the powers of governance as there was never complete accession of the territory, and the independent state never ceased to exist. "The whole Constitution of India cannot be made applicable to the region since the state continues to exist," he argued.
Zafar Ahmed Shah told the court that governance should continue to vest in the people of Kashmir. "Council of ministers should agree (on the aspect of governance) and not the Governor.
Article 370 subsumes the sovereignty of the territory. You have your Constitution and we have our Constitution. The merger was never done," he 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 Jammu and Kashmir and the Indian Constitution.