- (1.) These cases pertain to the constitutional challenge before this Court as regards to two Constitution Orders issued by the President of India in exercise of his powers under Article 370 of the Constitution of India.
(2.) At the outset, learned senior counsel appearing for one of the Petitioners in W.P. (C) No. 1013/19 and Petitioner in W.P. (C) 1368/19 raised the contention that the present matter needs to be referred to a larger Bench as there were contrary opinions by two different Constitution Benches on the interpretation of Article 370 of the Constitution. This order is confined to the limited preliminary issue of whether the matter should be referred to a larger Bench. We have not considered any issue on the merits of the dispute.
(3.) A brief introduction to the issue to set the context for this order is that after the late Maharaja of Kashmir had entered into a treaty of accession with the Indian State, Article 370 was incorporated into the Indian Constitution, which states as follows: 370. Temporary provisions with respect to the State of Jammu and Kashmir (1) Notwithstanding anything in this Constitution,-- (a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir; (b) the power of Parliament to make laws for the said State shall be limited to-- (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify. Explanation [1950 wording]: For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948; Explanation [1952 wording]: For the purposes of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the SadariRiyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office. (c) The provisions of article 1 and of this article shall apply in relation to that State; (d) Such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of subclause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government. (2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause (1) or in the second provision to subclause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon. (3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification. Since India's independence, this Article has remained in the Constitution and has been invoked as and when required. ;