The Centre could not have on August 5, 2019 unilaterally notified a Presidential Order under Article 370 of the Constitution to fundamentally alter the governance and identity of Jammu and Kashmir, senior advocate Sanjay Parekh submitted before the Supreme Court on Wednesday.
Appearing before a Constitution Bench led by Justice N.V. Ramana, Mr. Parekh, appearing for the PUCL, explained that the Constitution of Jammu and Kashmir was adopted on November 17, 1956. The J&K Constituent Assembly dissolved after that on January 26, 1957. The very purpose of a temporary provision of Article 370 ended there. The future governance of J&K was entrusted to the erstwhile State’s Constitution. Hence, a Presidential Order under Article 370 has no relevance.
Mr. Parekh referred to the Supreme Court’s Prem Nath Kaul judgment of 1959, the first verdict after the J&K Constitution was framed.
The court held that it was the Constituent Assembly of the State which decided the constitutional relationship between J&K and the Union of India. The purpose of Article 370 came to an end with the framing of Constitution and dissolution of Constituent Assembly of Jammu & Kashmir.
“The idea clearly was that thereafter the civil, political, cultural and socio-economic rights should be governed by the Constitution of J&K and the aspirations of the people of Jammu & Kashmir,” Mr. Parekh argued.
He submitted that this interpretation was in consonance with the intention of the people even before the Instrument of Accession, the Debates in Constituent Assembly while framing the Indian Constitution, the Delhi Agreement, as well as the Kaul judgment.