The Centre on Thursday told the Supreme Court that “accession of Jammu and Kashmir to India was irreversible” and its integration into the Indian Union was “independent of Article 370”.
Appearing for the Centre, Attorney General K K Venugopal told a five-judge Constitution Bench headed by Justice N V Ramana that the J&K Constitution specifically says it is an integral part of India and asked what then was the point in arguing that no plebiscite was held in the erstwhile state and hence it remains autonomous.
The bench, also comprising Justices S K Kaul, R Subhash Reddy, B R Gavai and Surya Kant, was hearing arguments on whether or not to refer petitions challenging the August 5, 2019 proclamations amending Article 370 to a larger bench in view of the decisions in two other five-judge decisions — in Prem Nath Kaul vs The State of Jammu and Kashmir in 1959 and Sampat Prakash vs The State of Jammu and Kashmir in 1970.
The bench reserved its order on Thursday.
The A-G was apparently referring to submissions of Senior Advocate Zafar Shah who said on Wednesday that there was never complete accession of J&K and that the independent state never ceased to exist.
Later, during the arguments, Solicitor General Tushar Mehta said “most of Zafar Shah’s arguments were political” and that “no argument justifying secessionism in J&K should be permitted”.
Venugopal took the court through a book, The History of the Integration of The Indian States, by former civil servant V P Menon, who played a key role in the accession process. The book, he said, explains how the tribesmen in approximately 200-300 lorries led by Pakistani Army officers invaded Kashmir in 1947. They came till Baramulla and “raped and killed right through” forcing the then Maharaja to seek the help of the Indian Army, he said.
The A-G said Lord Mountbatten’s letters from the archives “show that he was trying to coax the Kashmiris to join Pakistan”, perhaps to protect British interests, adding that the King was against this.
Speaking of the accession, the A-G said that by the 1954 Constititonal Order, large parts of the Indian Constitution were made applicable to J&K.
On Zafar Shah’s contention that J&K had not signed a standstill agreement with India, the A-G said it was not an argument at all. The Maharaja had signed a standstill agreement with Pakistan but the latter violated it, cut off supplies to Srinagar and sent 300 trucks with the objective of taking over J&K, said the A-G.
The A-G said the integration of the erstwhile state into the India Union was independent of Article 370 and referred to Article 1 which speaks about the territory of India. On the day the Constitution of India was framed, J&K became part of India, subject to Article 370 being operative with regard to application of laws, he added.
Venugopal said the Prem Nath Kaul case judgment was not about Article 370 powers and hence it was not right to say it conflicted with the Sampat Prakash case judgment.
Opposing the demand for reference, Senior Counsel Rajeev Dhavan, representing one of the petitioners, said in the August 5 proclamation, “We have seen the disappearance of a Constitution, disappearance of a treaty and demotion of a state into a Union Territory.” He wondered if security was the only reason for the changes.
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