SC refuses to larger Bench
A five-judge Constitution Bench led by Justice N.V. Ramana on 2 March 2020 declined a plea to refer to a larger Bench petitions challenging the abrogation of special status of Jammu and Kashmir under Article 370 of the Constitution. The Bench said it would continue to hear the case on merits. When one of the lawyers for the petitioners sought an early date to resume the hearing, it said a date would be fixed after considering the dates for the nine-judge Sabarimala Bench.
- The Bench had heard arguments and reserved its decision on whether there was a “direct conflict” between the judgments of 1959 and 1970 on the nature and extent of Article 370.
- The President’s notification on August 5 abrogated J&K's special status by blunting Article 370, which sources the privileges accorded to the erstwhile State in accordance with the assurances that were made in the Instrument of Accession signed between the Jammu and Kashmir ruler and the Government of India.
- However, Justice Ramana, who pronounced the judgment for the Bench, concluded that there was no conflict between 1959 and 1970 judgments.
- The 1959 judgment on Prem Nath Kaul versus State of Jammu and Kashmir, had indicated that Article 370 was applicable only till the Jammu and Kashmir Constitution was enacted on January 26, 1957. After that, no further changes could be made to the relationship between India and Jammu and Kashmir.
- But the 1970 judgment in Sampath Prakash versus State of Jammu and Kashmir case ignored the 1959 verdict and concluded that Article 370 was permanent in nature and a “perennial source of power” for the Centre to govern its relationship with Jammu and Kashmir .
- Senior advocate Dinesh Dwivedi, seconded by senior advocate Rajeev Dhavan, had argued that Justice Ramana’s Bench was the third five-judge Bench examining a case concerning the use of Article 370. The petitions should be referred to a larger Bench, they urged.
- The Constitution Bench had asked pertinent questions during the hearing, including who was the “competent authority” to bring the extinct Constituent Assembly of Jammu and Kashmir back to life.
- The Constituent Assembly ceased to exist in January 1957 with the coming of the Jammu and Kashmir Constitution.
- Before it was disbanded in 1957, it did not take a decision in favour of abrogation of Article 370 — the constitutional provision, which is the fountainhead of the special status and privileges granted to J&K in accordance with the Instrument of Accession.