Tribune News Service

New Delhi, January 22

Drawing a distinction between accession and merger, senior counsel Jaffar Ahmad Shah on Wednesday contended before the Supreme Court that Jammu and Kashmir didn’t merge with India like other states.

“The Constitution of Jammu and Kashmir can never be subordinate to the Constitution of India. We have full authority to make laws. The vestige of sovereignty is not vested with any state in India, except ours,” Shah — who represented Kashmir Bar Association — told a five-judge Constitution Bench headed by Justice NV Ramana.

The Bench — which also included Justices Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai and Surya Kant — is hearing petitions challenging the nullification of Article 370 and the Jammu and Kashmir Reorganisation Act 2019, which divided the state into two union territories — Jammu and Kashmir; and Ladakh.

Terming nullification of Article 370 as “illegal”, Shah said, “All of a sudden, shockingly, the President of India states that all Constitutional orders are superseded and all provisions of the Indian Constitution will apply to Jammu and Kashmir… the whole Constitution of India can never be made applicable to us.” He said the justification given for the August 5 Constitutional Order that Jammu and Kashmir was underdeveloped, lacked amenities, infrastructure and was in a bad shape was not legally sustainable.

As Shah described it as a “constitutional fraud”, Attorney General KK Venugopal objected to it, saying expressions like “constitutional fraud” should not be used.

“Why not?” responded Shah. It has been used in Supreme Court judgments, he added. Pointing out that the Maharaja of Jammu and Kashmir had signed the Instrument of Accession on October 26, 1947, the senior counsel said the court can’t ignore the provisions of this document and the fact that the Kashmir issue was still pending in the UN.

Shah said when Maharaja signed the Instrument of Accession; he never signed the “standstill agreement” or the “merger agreement”, leading to Article 370 that required the state’s concurrence to every act of the Union for extending that to Jammu and Kashmir.

He said there was no conflict between the Constitution of India and the Constitution of Jammu and Kashmir and both the Constitutions had been working in tandem. He referred to Article 370(2) of the Indian Constitution which required concurrence of the state assembly for laws enacted by Union Parliament to be applicable to the state.

Senior counsel Dinesh Dwivedi, representing intervenor in the case Prem Shankar Jha, had on Tuesday said Article 370 was the only “tunnel of light” (link) between India and Jammu and Kashmir and it could not have been used to end to effect irreversible changes in the erstwhile state’s status.

Senior advocate Sanjay Parikh — who represented People’s Union for Civil Liberties (PUCL) — concluded his arguments. Both Parikh and Shah wanted the Bench to refer the matter to a seven-judge Bench, contending that verdicts in Prem Nath Kaul versus Jammu and Kashmir (1959) and Sampat Prakash versus Jammu and Kashmir (1970) on Article 370 were conflicting. However, the Bench said it will refer it to a seven-judge Bench only if was satisfied that there was a direct conflict between two verdicts. The hearing would continue on Thursday.