INDEX

Sl. Particulars of Document Page No. of part of Rema

No. which it belongs rks

Para 1 Para II

(Contents (Content
of Paper s of file
Books) alone)

(i) (ii) (iii) (iv) (v)

1 Court fee

2. O/R on Limitation A A

3 Listing Proforma A1-A2 A1-A2

4. Cover page of paper Book A-3

5. Index of Record of Proceedings A-4

6 Limitation Report prepared by the A-5

Registry

7. Defect List A-6

8. Note Sheet NSI to..

9. Synopsis & List of Dates B-

10. Writ Petition(Civil) (PIL) with 1-233

affidavit
11 IMPUGNED/ORDER/
PROVISIONS/ACTS 234-236
i) Constitution (Application to
Jammu and Kashmir) Order, 2019
(C.O. 272) passed by president of
India.
ii) GSR 562 (E) dated August 6, 237-238
2019 (C.O. No: 273) passed by
president of India.
 IMPUGNED 239- 293
iii) The Jammu and Kashmir (Re-
Organization), Act, 2019.
12 ANNEXURE-P/1 294-295
A true copy of the security council
resolution dated 17.01.1948
13 ANNEXURE-P/2 296-299
A true copy of the security council
resolution dated 20.01.1948
14 ANNEXURE-P/3 300-313
A true copy of the security council
resolution dated 21.04.1948
15 ANNEXURE-P/4 -314-
A true copy of the security council
resolution dated 03.06.1948
16 ANNEXURE-P/5 315-321
A true copy of the UNCIP
Resolution dated 13.08.1948
17 ANNEXURE-P/6 322-326
A true copy of the resolution
(s)/1196) adopted by United
Nation Commission for India and
Pakistan dated 05.01.1949
18 Copy of the PAN 327-328

19 Filing Index 329

20 Vakalatnama 330
 IN THE SUPREME COURT OF INDIA
(EXTRA ORDINARY CIVIL WRIT JURISDICTION)
(Under Article 32 of the Constitution of India)
WRIT PETITION (CIVIL) NO: ______ OF 2019
[PUBLIC INTEREST LITIGATION]

In the matter of:

Jammu & Kashmir High
Court Bar Association, Srinagar …
Petitioner
Versus
Union of India & Ors …
Respondents

Vol-I

(Pages 1 to 238 )

PAPER BOOK
(FOR INDEX PLEASE SEE INSIDE)

ADVOCATE FOR THE PETITIONER: D.K SINHA

 IN THE SUPREME COURT OF INDIA
(EXTRA ORDINARY CIVIL WRIT JURISDICTION)
(Under Article 32 of the Constitution of India)
WRIT PETITION (CIVIL) NO: ______ OF 2019
[PUBLIC INTEREST LITIGATION]

In the matter of:

Jammu & Kashmir High
Court Bar Association, Srinagar …
Petitioner
Versus
Union of India & Ors …
Respondents

Vol-II

(Pages 239 to 326 )

PAPER BOOK
(FOR INDEX PLEASE SEE INSIDE)

ADVOCATE FOR THE PETITIONER: D.K SINHA

 SYNOPSIS

That Maharaja of Jammu and Kashmir executed

“Instrument of Accession” on 26th October, 1947. In

terms of this “Instrument of Accession” the dominion

of India was given power to legislate in respect of

“defence”, “foreign affairs” and “communications”.

At no stage any Supplementary Agreement was

executed and or Merger Agreement with Union of

India.

That on December, 31, 1947 India lodged a

complaint before United Nations Organization. Till

October, 1949 several Resolutions were passed by

the United Nations. In October, 1949 Article 370 was

adopted by the Constituent Assembly of India,

keeping in view peculiar situation and conditions of

the State of Jammu and Kashmir and the limited

nature of accession. The Constitution of India was

adopted in November, 1949. Having regard to Article

370 the first Constitution Application Order was

issued on 26.01.1950 when the Constitution of India

became fully applicable.

i. From time to time the President of India issued

Constitution Application orders.

ii. That on May 1, 1951 the Constituent Assembly

for the State of Jammu and Kashmir was

constituted. It framed a separate Constitution

for the State which was adopted on 17.11.1956.

iii. That in view of the limited nature of “Instrument

of Accession”, non-application of the provisions

of the Constitution of India to the State of

Jammu and Kashmir except in accordance with

procedure prescribed by Article 370, the State

enjoyed Constitutional Autonomy in terms of

which various rights were available to the

permanent residents of the State.

iv. That on 20.06.2018 the State was brought

under Governor’s Rule under Section 92 of the

Constitution of the State. On 21.11.2018

Legislative Assembly of the State of Jammu and

 Kashmir was dissolved by the Governor. On

19.12.2018 President’s Rule was imposed in the

State under Article 356 of the Constitution. As

on date the State continues to be under

extended President’s Rule.

v. On 05.08.2019 President notified C.O. 272,

Constitution (Application to Jammu and Kashmir)

Order, 2019. It was followed by C.O. 273. Almost

simultaneously the Parliament of India enacted

Jammu and Kashmir (Re-Organization) Act,

2019. As a result of these measures, the

Constitutional Autonomy of the State has been

removed and the State has been brought at par

with other states of the Union. Under the Re-

Organization Act the State has been bifurcated

into two Union Territories called (i) Union

Territory of Ladakh and (ii) Union Territory of

Jammu and Kashmir.

vi. In the present petition the petitioners have

called in question the action taken by the

 Governor of Jammu and Kashmir, Parliament of

India and the President of India.

LIST OF DATES

1935 The British Government enacted

Government of India Act, 1935. This

Act provided for accession of the

Princely States to the Federation.

Sept. 7, 1939 The Maharaja of Jammu and Kashmir

promulgated Jammu and Kashmir

Constitution Act.

15.08.1947 Pursuant to Indian Independence Act,

apart from giving freedom, British

India came to be divided into two

dominions of India and Pakistan.

In accordance with the Act of 1935

and the Indian Independence Act of

1947 option was given to the native

princes to accede either of the two

dominions. The Maharaja of Jammu

and Kashmir did not accede to either

of the two dominions.

26.10.1947 The Maharaja of Kashmir executed

“Instrument of Accession.

October, 1949 Article 370 was adopted by the

Constituent Assembly of the State.

31.12.1947 to During this period India lodged

complaint before United

Nations,

which passed several Resolutions.

Article 370 was adopted keeping in

view the Resolutions passed by the

United Nations and also keeping in

view non-execution of Merger

Agreement by the Maharaja with the

Union.

17.01.1948 Resolution adopted by Security

Council on 17.01.1948.

20.01.1948 Resolution adopted on 20.01.1948.

21.04. 1948 Resolution adopted on 21.04.1948.

 03.06.1948 Resolution adopted on 03.06.1948.

13.08.1948 Resolution adopted on August 13,

1948of

the UNCIP

05.01.1949 Resolution adopted on January 5, 1949.

02.05.1949 Truce Terms of UNCIP dated 02.05.1949.

26.01.1950 The Constitution of India became fully

applicable with Article 370.

01.05.1951 The proclamation for the convening of

the Constituent Assembly for the

State of Jammu and Kashmir was

issued.

01.05.1954 to Various Constitutional Application

Orders were passed by the president

of

17.11.1956. India under Article 370.

17.11.1956 The Constituent Assembly of the State

of Jammu and Kashmir adopted

Constitution of Jammu and Kashmir.

 10.04.1965 In the State Constitution amendment

was carried substituting the word

“Sadar-i-Riyasat” as “Governor” and

“Prime Minister” as “Chief Minister”.

20.06.2018 Governor’s Rule was imposed in the

State.

21.11.2018 Legislative Assembly of the State was

dissolved by the Governor.

19.12.2018 President’s Rule under Article 356 was

imposed in the State of Jammu and

Kashmir.

05.08.2019 The Constitution (Application to

Jammu and Kashmir) Order, 2019 was

notified by the President of India

under C.O. 272.

06.08.2019 A declaration was made by President

of India vide C.O. 273.

09.08.2019 The President of India gave assent to

Jammu and Kashmir (Re-Organization)

Act, 2019.
 30.09.2019 Hence, this Writ Petition.

IN THE SUPREME COURT OF INDIA

(EXTRA ORDINARY CIVIL WRIT JURISDICTION)
(Under Article 32 of the Constitution of India)

WRIT PETITION (CIVIL) NO: ______ OF 2019

[PUBLIC INTEREST LITIGATION]

IN THE MATTER OF:

Jammu & Kashmir High

Court Bar Association, Srinagar
Through
Joint Secretary,
High Court of J & K at Srinagar,
City and District-Srinagar
Jammu & Kashmir …
Petitioner

Versus
1. Union of India,
Through Secretary,
 Ministry of Home Affairs,
Government of India, North Block,
New Delhi – 110001 ... Respondent
No1
2. Union of India,
Through Secretary (Legislative),
Ministry of Law and Justice,
Government of India,
ShastriBawan,
New Delhi – 110001. ..
Respondent No.2
3. State of Jammu and Kashmir
(Now Union Territory of Jammu &
Kashmir)
Through Chief Secretary to the
Government,
Civil Secretariat,
Srinagar
Jammu & Kashmir ..
Respondent No.3

WRIT PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA CHALLENGING THE
CONSTITUTIONAL VALIDITY OF THE
PRESIDENTIAL ORDER BEARING GSR. 551
(E) (C.O. 272), PRESIDENTIAL ORDER
BEARING GSR 562(E) (C.O.273), AND THE
JAMMU AND KASHMIR (REORGANIZATION)
ACT OF 2019

To

Hon’ble the Chief Justice of India,

and His Companion Justices of
the Supreme Court of India.

The Humble Petition of the

Petitioners above named

MOST RESPECTFULLY SHOWETH:

1. That the petitioner is Jammu &

Kashmir High court Bar association

through its joint secretary have

preferred this petition under article 32

of the constitution of India in the nature

of Public Interest Litigation challenging

the constitutional validity of the

 Presidential Order bearing GSR. 551 (E)

(C.O. 272), Presidential Order bearing

GSR 562(E) (C.O.273), and the Jammu

and Kashmir (Reorganization) Act of

2019 (Together impugned

order/provisions/Act).The

secretary and the president are inside the

jail, therefore the writ petition is filed

through the joint secretary.

1 A) . Adil Asmi and Adil Omar Zulqarnain As

imi

are the same person i.e. Joint

Secretary

2. That personal details of the Petitioner

Association before this Hon’ble court is
as under:-
S. Name of the Annual Mob. Number
No. Petitioner/s Income and PAN
1. Jammu and 6 Lacs AAFAJ3142C
Kashmir High
 Court, Bar
Association,
Srinagar
2. Adil Omar Joint Mob.
Zulqarnain Secretary,
Asimi J & K High 7006938918
(Advocate ) Court Bar
APHPA4404J
Association
, Srinagar Adhaar No.
Annual
Income 4.5 2909 6202
Lac
9772

3. That the petitioner has no personal

gain, private motive or oblique

reason in filing the present petition.

The petition is filed for common

cause and the benefits of the

society at large. If the instant PIL is

not filed and the impugned

Presidential orders and the Act of

2019 are implemented then it will

 lead to gross violation of

Fundamental rights being in

violation of the basic structure of

the constitution.

i. That the petitioners state that

no civil, criminal or revenue

litigation involving the

petitioner, which has or could

have a legal nexus with the

issues herein raised.

4. DISCRIPTION OF THE PARTIES

i. That the Jammu and Kashmir high

court bar association, Srinagar

petitioner herein, comprises of

eminent citizens, jurists learned

counsels, senior advocates,

scholars and multitalented,

diversified personalities and have

 been espousing the cause of the

welfare of the public at large,

especially the people of Jammu and

Kashmir. Besides social,

environmental causes, the said Bar

Association also provides free

advice and legal aid to the poorest

of the poor and has helped in

improvement of the plight of

detainees, etc. The Bar Association

in the preamble of its constitution

has declared its commitments to

make all efforts for peaceful and

amicable settlement of Kashmir

dispute.

ii. That the joint secretary of the

Jammu and Kashmir high court Bar

Association is a citizen of India and

permanent resident of the State of

Jammu and Kashmir (hereinafter

called State). The president and the

secretary of the petitioner

association are inside jail,

therefore, the matter is being filed

through the joint secretary. The

Notifications and the Legislation

impugned in this writ petition effect

and injure the rights of common

people who are permanent

residents of the State. The State

has been robbed of its special

constitutional position. Rights

which were available to the

permanent residents of the state,

and which were not available to

other citizens of India, have been

 taken away. The constitutional

status of the State, under the

impugned Notifications, has been

brought at par with other

Federations of India in

contravention of, among others,

Instrument of Accession,

Constitution of India, Constitution

of Jammu and Kashmir and

Constitutional Application orders.

iii. The Respondents are union of India

through secretaries, of home, law

and justice and the chief secretary

of state of Jammu and Kashmir.

Who have notified the impugned

provisions/orders/acts.

5. ORDERS/PROVISIONS/ACT UNDER

CHALLENGE
 That in the present proceedings, the

petitioners challenge following;

i) Constitution (Application to Jammu

and Kashmir) Order, 2019 (C.O.

272).

ii) GSR 562 (E) dated August 6, 2019

(C.O. No: 273).

(These are hereinafter called

“impugned Notifications”).

iii) The Jammu and Kashmir (Re-

Organization), Act, 2019.

(Hereinafter called “impugned

Legislation”).

6. BRIEF FACTS OF THE CASE:-

I) That Article 370 of the Constitution was

adopted by the Constituent Assembly of

India on November 26, 1949. At the

time of its adoption it read as follows:

“370- (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

matter 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:- For the purpose of this Article

the Government of the State means the

person for the time being recognized 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 Maharaja’s Proclamation dated the

Fifth Day of March, 1948;

(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

Sub Clause (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

State.

II) 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

proviso to Sub Section (d) of that

clause be given power 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.

(2) Notwithstanding anything in the

foregoing provision 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 recommendations of

the Constituent Assembly of the State

referred to in clause (2) shall be

necessary before the President issues

such a Notification.”

It was amended in 1952 on the

recommendations of the Constituent

Assembly of the State. The amendment

notified by the President of India vide

“The Constitution (Application to

Jammu and Kashmir) Order 1952, C.O.

No: 44 dated November 15, 1952

substituting earlier explanation of

Article 370 as follows:

“In exercise of the powers

conferred by this Article the

President on the recommendations

of the Constituent Assembly of the

State of Jammu and Kashmir,

declare that, as from the 17th Day

of November, 1952 the said Article

370 shall be operative with the

modification that for the

explanation in clause (1) thereof,

the following explanation is

substituted, namely:-

Explanation:-

For the purpose 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 Sadar-

i-Riyasat of Jammu and Kashmir,

acting on the advice of the Council

of Ministers of the State for the

time being in office.”

II It is the only amendment made in

Article 370 on the recommendations of

the Constituent Assembly in

accordance with the procedure

prescribed by Article 370.

III) That in terms of impugned notifications

i.e. C.O. 272 and C.O. 273 following

amendments have been notified:

C.O. 272 dated 5th August, 2019.

In terms of this Presidential Notification

following amendments have been made

in Article 370 of Constitution of India:

(a) References to the person for the

time being recognized by the

President on the recommendations

of Legislative Assembly of the State

as the Sadar-i-Riyasat of Jammu

and Kashmir, acting on the advice

of the Council of Ministers of the

State for the time being in office,

shall be construed as references to

the Governor of Jammu and

Kashmir.

(b) References to the Government of

the said State shall be construed as

including references to the

Governor of Jammu and Kashmir

 acting on the advice of his Council

of Ministers.

(c) In proviso to clause (3) of Article

370 of this Constitution the

expression “Constituent Assembly”

of the State referred to in clause

(2) shall read “Legislative

Assembly” of the State.

In addition to the amendments the notification

superseded the Constitution (Application to

Jammu and Kashmir) Order 1954 as amended

from time to time.

The Notification further provided that all the

provisions of the Constitution as amended from

time to time shall apply in relation to the State of

Jammu and Kashmir.

 In Article 367 of Constitution of India following

clause has been added:

IV) For the purposes of this Constitution as

it applies in relation to the State of

Jammu and Kashmir:-

(a) References to this Constitution or

to the provisions thereof shall be

construed as references to the

Constitution or the provisions thereof as

apply in relation to the said State.

C.O. 273 dated 6th August, 2019.

In terms of C.O. 273 the President, on

the recommendations of the

Parliament, has declared that as from

6th August, 2019 all clauses of Article

370 shall cease to be operative except

following:-
That all provisions of the Constitution of

India, without modification or

exception, shall apply to the State of

Jammu and Kashmir, notwithstanding

anything contrary contained in;

(i) Article 152;

(ii) Article 308

(iii) Or any other article of Constitution

of India,

(iv) Or any other provision of the

Constitution of Jammu and

Kashmir;

(v) Any law, document, judgment,

Ordinance, Order, Bye-law, rule,

regulation, notification, custom or

usage having the force of law in the

territory of India.
(vi) Any other Instrument, Treaty or

Agreement as envisaged under

Article 363 or otherwise.”

Jammu and Kashmir (Reorganization) Act, 2019:

This Legislative Enactment was passed by

the Parliament of India, almost

simultaneously, with the issuance of C.O.

No: 272 dated 5th August, 2019 and C.O.

No: 273 dated 6th August, 2019, on 9th

August, 2019, the President of India gave

his assent to the Jammu and Kashmir

(Reorganization) Act, 2019. In terms of

this Act the State of Jammu and Kashmir

has been bifurcated into two Union

Territories. One Territory known as “Union

Territory of Ladakh” and the second

territory known as “Union Territory of

Jammu and Kashmir”. These union

 territories are to be headed by Lieutenant

Governor. The Union Territory of Jammu

and Kashmir will have a legislature. The

Act has to be applied, reportedly, from

October 31, 2019.

V) That the State of Jammu and Kashmir

was brought under Governor’s Rule

under Section 92 of the Constitution of

Jammu and Kashmir on June 20, 2018.

Legislative Assembly of the State was

dissolved on November 21, 2018. On

December 19, 2018 the President of

India issued proclamation under Article

356 of the Constitution of India

imposing President’s Rule in the State

of Jammu and Kashmir. The President’s

rule has been extended with effect from

July 3, 2019. The impugned

 notifications and legislation have been

notified during the time State is under

extended period of President’s Rule.

VI) That Article 370 is placed in Part XXI of

Constitution of India. This part of

Constitution is captioned “Temporary,

Transitional and Special Provisions”. IN

this part Articles from 369 to 392 have

been placed. Article 370 specially is in

respect of State of Jammu and Kashmir.

This Article was adopted by

Constitution makers in November, 1949

when the Constitution of India was

adopted. It is a part of adopted original

Constitution. It has not been

incorporated by any amendment in the

Constitution. Its subject is altogether

different from the subject matter of

other Articles placed in part XXI. It is

the only Article which makes express

mention of Instrument of Accession and

recognition by the President of

Government of Jammu and Kashmir.

Not only that it acknowledges

Constituent Assembly of the State of

Jammu and Kashmir for the purpose of

framing the Constitution of the State. It

is the only article which provides

special procedure for its abrogation. It

excludes application of all provisions of

the Constitution of India, to the State

except Article 1 and this Article. The

President of India, and not the

Parliament, can apply constitutional

provisions of the Constitution of India to

the State. The President of India cannot

 act on his own in this behalf but

requires “consultation” or

“concurrence” of the “Government of

the State”. And only thereafter can

apply the provision or provisions of the

Constitution, with or without

“modifications” or “exceptions”, in

accordance with such “consultation” or

“concurrence”. Such is not the

Constitutional position of any other

State in the Union.

7. GENESIS/BACKGROUND OF ARTICLE

370:

a)That this Hon’ble court had the

occasion to trace historical

background in the case titled

PremNathKoul V/s State of

Jammu and Kashmir (1959 (Sup

 2) SCR 270). The position was made

further clear in another decision by

this Hon’ble court titled State Bank

of India V/s Santosh Gupta and

Anr (2017 (2) SCC 538).

b)That besides the aforesaid two

decisions, there are some more

relevant facts providing for special

position of the State of Jammu and

Kashmir.

c) That it is a historical fact that “British

India” did not comprise of all the

territories now included in “Bharat”

as mentioned in the Constitution of

India. Except the territories of British

India, which were directly ruled by

British Crown, all other territories

forming part of India, were ruled by

 Maharaja’s/Princess. Their size,

geographical position, laws, customs

etc. were, by and large, different.

d)That State of Jammu and Kashmir

was one of the States which was not

part of British India. It was ruled by

Maharaja Hari Singh from 1925. The

total area of the State, as it was

constituted onAugust 14, 1947, was

8225 8 mi2. However, in the 1961

census, total area was shown to be

8602 4 mi2. That part of the State

territory is with Pakistan and some

portion is with China.

e)That Maharaja Hari Singh had notified

Constitution for the entire State on

September 7, 1939. Under the said

 Constitution Maharaja had retained

all his authority and power.

Section 4:Government of the State by His Highness:-

The territories for the time being

vested in His Highness are

governed by and in the name of His

Highness, and all his rights,

authority and jurisdiction which

appertain or are incidental to the

government of such territories are

exercisable by His Highness,

except in so far as may be

otherwise provided by or under this

act, or as may be otherwise

directed by His Highness.

Section 5: His Highness inherent powers:-

 Notwithstanding anything contained in this

or any other act, all powers, legislative,

executive and judicial, in relation to the

state and its government are hereby

declared to be and to have always been

inherent in and possessed and retained by

His Highness and nothing contained in this

or any other Act shall affect or be deemed to

have affected the right and prerogative of

His Highness to make laws, and issue

proclamations, and ordinances by virtue of

his inherent authority.

f) That between 1939 to 1947 many

political developments took place.

The British government got directly

involved in Second World War. By this

time the forces of freedom in British

India had taken deep roots and

efforts were intensified by Indian

leadership to gain freedom from

British colonial rule. World scenario

had also changed. Many British

colonies had already gained their

freedom. The British Government

could no longer manage its affairs

and for many other reasons it

realized that it could no longer stay in

power in “British India”. Government

of India Act, 1935 had paved way for

formation of representative

government but it failed to achieve

its objective. This Act had also made

provisions dealing with princely

States which for facility of reference

are reproduced hereinbelow:

Section 5 – Proclamation of
Federation of India:

(1) It shall be lawful for His Majesty,

if an address in that behalf has

been presented to him by each

House of Parliament and if the

condition hereinafter mentioned

is satisfied, to declare by

proclamation that as from the

date therein appointed there

shall be united a federation

under the Crown, by the name of

the Federation of India;

(a) The provinces hereafter

called Governor’s provinces,

and
 (b) The Indian States which have

acceded or may thereafter

accede to the Federation;

and

In the federation so

established there shall be

included the provinces

hereinafter called Chief

Commissioner’s provinces.

(2) The condition referred to is that

states;

(a) The Rulers whereof will, in

accordance with the

provisions contained in Part-II

of the Ist. Schedule to this

Act, be entitled to choose not

less than (sic) members of

the Council of State;

(b) The aggregate population

whereof as ascertained in

accordance with the said

provision, amounts to at

least one half of the total

population of the States as

so ascertained, have

acceded to the Federation.

Section 6 – Accession of Indian States;

(1) The state shall be deemed to

have acceded to the

Federation if His Majesty has

signified his acceptance of

an instrument of accession

executed by the ruler

thereof, whereby the ruler

for himself, his heirs and

successors;

(a) Declares that he accedes

to the Federation as

established under this

Act with the intent that

his Majesty The King,

The Governor General of

India, the Federal

Legislature, the Federal

Court and any other

Federal authority

established for the

purpose of the

Federation shall, by

virtue of his Instrument

of Accession, but subject

otherwise to the terms

 thereof and for the

purposes only of the

Federation, exercise, in

relation to his state such

functions as may be

vested in them by order

under this Act; and

(b) Assumes the obligation

of ensuring that due

effect is given within his

state to the provisions of

this Act so that they are

applicable therein by

virtue of his instrument

of accession;

Provided that an

instrument of accession

may be executed
 conditionally (sic)

establishment of the

Federation on or before a

specified date and in

that case the state shall

not be deemed to have

acceded to the

Federation, the

Federation is not

established until after

that date.

(2) An instrument of Accession

shall specify the matters

which the ruler accepts as

matters with respect to

which the Federal Legislature

may make laws for his state,

and the limitations, if any, to

 which the power of the

Federal Legislature to make

laws for his state, and the

exercise of the executive

authority of the Federation of

his state are respectively to

be subject.

(3) A Ruler by supplementary

instrument executed by him

and accepted by His Majesty

vary the instrument of

accession of his state by

extending the functions

which by virtue of that

instrument are exercisable

by His Majesty or any other

Federal in relation to his

state.
(4) Nothing in this section shall

be construed as requiring His

Majesty to accept any

instrument of accession or

supplementary instrument

unless he considers it proper

so to do, or as empowering

His Majesty to accept any

such instrument if it appears

to him that the terms thereof

are inconsistent with the

scheme of federation

embodied in this Act.

Provided that after the

establishment of the

Federation, if any instrument

in fact being accepted by His

Majesty, validity of that

 instrument or any of its

provisions shall not be called

in question and the

provisions of this Act shall, in

relation to the state, have

effect subject to the

provisions of the instrument.

(5) It shall be a term of every

instrument of accession that

the provisions of this Act

mentioned in the II-Schedule

thereto made, without

effecting the accession of the

State, be amended by or by

authority of parliament, but

no such amendment shall,

unless it is accepted by the

ruler, in a supplementary
 instrument be construed as

extending the functions

which by virtue of the

instrument are exercisable

by His Majesty or any Federal

authority in relation to the

State.

(6) An instrument of accession

or supplementary instrument

shall not be valid unless it is

executed by the ruler

himself, but subject as

aforesaid, references in this

Act to the ruler of a state

including references to any

person for the time being

exercising the powers of the

ruler of the State, whether by

 reason of the ruler’s minority

or for any other reason.

(7) After establishment of the

federation the request of a

ruler that his state may be

admitted to the federation

shall be transmitted to His

Majesty through the

Governor General and after

the expiration of 20 years

from the establishment of

the federation the Governor

General shall not transmit to

His Majesty any such request

unless there has been

presented to him by each

chamber of the Federal

legislature, for submission to

 His Majesty, an address

praying that His Majesty may

be pleased to admit the state

into the Federation.

(8) In this Act a state which has

acceded to the Federation is

referred to an federated

state and the instrument by

virtue of which a state so

acceded, construe together

with any supplementary

instrument executed under

this Section is referred to as

the instrument of accession

of that state.

(9) As soon as may be after any

instrument of accession or

supplementary instrument
 has been accepted by His

Majesty under this section,

copies of the instrument and

of His Majesty’s acceptance

thereof shall be laid before

the Parliament and all courts

shall take judicial notice of

every such notice and

acceptance.”

g) That the Maharaja of Jammu and

Kashmir did not execute any

“Instrument of Accession” till

October 26, 1947. By this time two

independent “Dominions of India”

and “Pakistan” had come into

existence under Indian

Independence Act, 1947. Under

 Section 2(4) of the said Act following

provision was made:

“Without prejudice to the

generality of the provision of

sub section (3) of this Section,

nothing in this section shall be

construed as preventing the

accession of India States to

either of the new dominions.”

Section 7 of the said Act in so far it

is relevant provided as under:

“7-(1) as from the appointed

date;

(a) His Majesty’s government in the United

Kingdom have no responsibility as respects the

government of any of the territories,

immediately before that date were including

any British India;

(b) The suzerainty of His Majesty over the

Indian States lapses, and with it, all treaties and

agreements in force at the date of the passing

of this Act between His Majesty and the rulers of

Indian States all functions exercisable by His

Majesty at that date with respect to Indian

States, all obligations of His Majesty existing at

that date towards Indian States of the Rulers

thereof and all powers, rights, authority or

jurisdiction exercisable by His Majesty at that

date in or in relation to Indian States by treaty,

grant, usage, sufferance or otherwise.”

That under Section 8 of the Act the

Constituent Assembly of the dominion was

also conferred powers of the Legislature. Till

any new legislation was passed by the

Constituent Assembly of the respective

dominion, each of the new dominions and all

 provinces would continue to be governed in

accordance with the Government of India

Act, 1935 subject to such omissions,

conditions, adoptions and modifications as

may be specified in the orders of Governor

General.

h)That the Indian Independence Act

was enacted on July 18, 1947. It was

followed by the Extra Provincial

Jurisdiction Act, 1947 which was

enacted on December 24, 1947. The

provisions of Government of India

Act, 1935 were also amended and

Section 290-A inserted. On December

26, 1949 the Merged States (Laws)

Act, 1949 was enacted.

 That as submitted hereinabove the

Maharaja of State of Jammu and

Kashmir did not execute any

Instrument of Accession till October

26, 1947.

VII. That apart from the facts noticed in the

decisions of this Hon’ble court, as

regards the constitutional status of the

State, the petitioners submit that their

case needs to be appreciated in the

historical and constitutional

perspective.

VIII. That after many discussions, meetings

and conferences it was decided by

Indian leadership and the British

government that the British

government would completely withdraw

from British India and grant freedom to

its people on August 15, 1947. During

various meetings and discussions three

decisions, which are relevant to the

subject matter of present proceedings,

standout.

i) That the subcontinent of India

would be divided into two

Independent Sovereign Countries,

called India and Pakistan.

ii) Option of joining either of the two

dominions will be given to princely states.

iii) Wherever in any princely state the

Ruler professed different religion

from its majority of the subjects but

decides to accede to a dominion

which is against the wishes of

 majority of its subjects, in that

situation, wish of the people will be

ascertained by referendum.

IX. The Government of India, immediately

after 15 August, 1947 started process

of integration of princely states.

Document called “Instrument of

Accession” was presented to Rulers of

these States for execution. In the case

of State the “Instrument of Accession”

as was presented, was as follows:

Instrument of Accession executed

by Maharajah Hari Singh on
October 26, 1947:

Whereasthe Indian Independence

Act, 1947, provides that as from

the fifteenth day of August, 1947,

there shall be set up an

independent Dominion known as

INDIA, and that the Government of

India Act 1935, shall with such

omissions, additions, adaptations

and modifications as the Governor

General may by order specify, be

applicable to the Dominion of India.

And whereas the Government of

India Act, 1935, as so adapted by

the Governor General, provides

that an Indian State may accede to

the dominion of India by an

Instrument of Accession executed

by the Ruler thereof.

Now, therefore, I

ShrimanInderMahinderRajrajeswar

MaharajadhirajShriHariSinghji,

Jammu and Kashmir

NareshTathaTibbetadiDeshadhipati,

Ruler of Jammu and Kashmir State,

in the exercise of my Sovereignty

in and over my said State do

hereby execute this my Instrument

of Accession and

1. I hereby declare that I accede

to the Dominion of India with the

intent that the Governor General of

India, the Dominion Legislature, the

Federal Court and any other

Dominion authority established for

the purposes of the dominion shall

by virtue of this my Instrument of

Accession but subject always to the

terms thereof, and for the purposes

only of the Dominion, exercise in

relation to the State of Jammu and

Kashmir (hereinafter referred to as

“this State”) such functions as may

be vested in them by or under the

Government of India Act, 1935, as

in force in the Dominion of India, on

the 15th day of August 1947, (which

Act as so in force is hereafter

referred to as “the Act”).

2. I hereby assume the obligation

of ensuring that due effect is given

to provisions of the Act within this

State so far as they are applicable

therein by virtue of this my

Instrument of Accession.

3. I accept the matters specified

in the schedule hereto as the

matters with respect to which the

dominion Legislature may make

law for this State.

4. I hereby declare that I accede

to the Dominion of India on the

assurance that if any agreement is

made between the Governor

General and the Ruler of this State

whereby any functions in relation

to the administration in this State

of any law of the Dominion

Legislature shall be exercised by

the Ruler of the State, then any

such agreement shall be construed

and have effect accordingly.

5. The terms of this my

Instrument of Accession shall not

be varied by any amendment of the

Act or the Indian Independence Act,

1947, unless such amendment is

accepted by me by Instrument

supplementary to this Instrument.

6. Nothing in this Instrument shall

empower the Dominion Legislature

to make any law for this State

authorizing the compulsory

acquisition of land for any purpose,

but I hereby undertake that should

the Dominion for the purpose of a

Dominion law which applies in this

State deem it necessary to acquire

any land, I will at their request

acquire the land at their expense,

or, if the land belongs to me

transfer it to them on such terms

as may be agreed or, in default of

agreement, determined by an
arbitrator to be appointed by the

Chief Justice of India.

7. Nothing in this Instrument shall

be deemed to commit in any way

to acceptance of any future

constitution of India or to fetter my

discretion to enter into agreement

with the Government of India under

any such future constitution.

8. Nothing in this Instrument

affects the continuance of my

Sovereignty in and over this State,

or, save as provided by or under

this Instrument, the exercise of any

powers, authority and rights now

enjoyed by me as Ruler of this

State or the validity of any law at

present in force in this State.

 9. I hereby declare that I execute

this Instrument on behalf of this

State and that any reference in this

Instrument to me or to the Ruler of

the State is to be construed as

including a reference to my heirs

and successors.

10. Given under my hand this 26th

day of October, nineteen hundred

and forty seven.”

It is evident from the said document

that accession was limited to only three

subjects, that is, “Defence”, “Foreign

Affairs” and “Communications”. The

document authorized Dominion of India

to exercise its authority in the Acceding

States only in respect of these subjects

 without the acceding state integrating

its territory with the dominion.

In this behalf Section 101 of the

Government of India Act in terms

provided as under:

“101. Extent of power to legislate

for states:- Nothing in this Act shall

be construed as empowering the

Federal Legislature to make laws

for a federated state otherwise

than in accordance with the

Instrument of Accession of that

state and any limitations contained

therein.”

X. Several Rulers of princely States also

decided to put an end to “state life”

and executed further Agreements

 called “Merger Agreements” with

dominion of their choice. Such of the

States who did not execute “merger

agreements” continued to retain their

separate and independent status.

Jammu and Kashmir was one of such

States which did not execute “merger

agreement” and thus retained its

independent status except to the

extent of three subjects mentioned in

“Instrument of Accession”.

XI. That during the process of integration

different position had emerged in

respect of three States, that is,

Hyderabad, Junagadh and Jammu and

Kashmir. In the princely State of

Hyderabad the Ruler professed the

same religion as the majority of his

 subjects. He had decided to accede to

Dominion of Pakistan. But the territory

of said State was such that on all sides

it was surrounded by dominion of India

and the princely States which had

acceded to the said dominion. The

Ruler of Junagadh professed different

religion from majority of his subjects.

He had decided to accede to dominion

of Pakistan. The ruler of Jammu and

Kashmir had decided that he will not

accede to either of dominions and will

continue to retain status of his State as

Independent, separate State.

XII. The princely State of Junagadh after

two days of independence acceded to

Pakistan. This was objected to by

Government of India. After much

 correspondence between the two

governments it was finally agreed that

in view of the policy adopted at the

time of partition a referendum was to

be held in the said princely State. In

February, 1948 the government of India

held referendum in which people

showed their preference for India. This

is how the issue was settled.

XIII. So far as princely State of Hyderabad

is concerned no referendum was held in

the said State nor it was allowed to

accede to dominion of Pakistan. After

much correspondence and negotiations

it was included in Union.

XIV. Before making statements with regard

to State of Jammu and Kashmir it is

 necessary to state constitutional

development in British India.

XV. In accordance with the decision of the

Cabinet Mission plan “Constituent

Assembly” was constituted by the

provincial legislatures electing

members to it. The Constituent

Assembly met for the first time on

December 9, 1946. There was no

representative in the assembly from

Jammu and Kashmir. The assembly

undertook the task of making

Constitution of India. It took almost

three years for the assembly to

complete its work. It is during this

period that India gained its freedom on

August 15, 1947.

XVI. That by November, 1949 all the

Princely States had executed “merger

agreements” with dominion of India

thus ending their “State Life” forming

union of states called “Union of India”,

except the State of Jammu and

Kashmir.

XVII. That the princely State of Jammu and

Kashmir, as submitted above, did not

choose to accede to India or Pakistan. It

remained independent. Between

August 15 and October 26, 1947

situation developed in the State which

needed to be tackled by Maharaja. The

military of the Maharaja failed to

defend territories of the State. On

October 26, 1947 Maharaja of the State

executed “Instrument of Accession”

with the Government of India.

Simultaneously he addressed a

communication to the Governor

General of India, which was responded

to by the Governor General.

Hereinbelow Letter of Maharaja and

response there to are reproduced:

Letter of Maharaja:

“My dear Lord Mountbatten,

I have to inform your Excellency

that a grave emergency has arisen

in my State and request immediate

assistance of your Government.

As your Excellency is aware the

State of Jammu and Kashmir has

not acceded to the Dominion of

India or to Pakistan. Geographically

my State is contiguous to both the

Dominions. It has vital economical

and cultural links with both of

them. Besides my State has a

common boundary with the Soviet

Republic and China. In their

external relations and Dominion of

India and Pakistan cannot ignore

this fact.

I wanted to take time to decide to

which Dominion I should accede, or

whether it is not in the best

interests of both the Dominions and

my State to stand independent, of

course with friendly and cordial

relations with both.

I accordingly approached the

Dominions of India and Pakistan to

enter into Standstill Agreement

with my State. The Pakistan

Government accepted this

Agreement. The Dominion of India

desired further discussions with

representatives of my Government.

I could not arrange this in view of

the developments indicated below.

In fact the Pakistan Government

are operating Post and Telegraph

system inside the State.

Though we have got a Standstill

Agreement with the Pakistan

Government that Government

permitted steady and increasing

strangulation of supplies like food,

salt and petrol to my State.

Afridis, solders in plain clothes, and

desperadoes with modern weapons

have been allowed to infliter into

the State at first in Poonch and

then in Sialkot and finally in mass

area adjoining Hazara District on

the Ramkot side. The result has

been that the limited number of

troops at the disposal of the State

had to be dispersed and thus had

to face the enemy at the several

points simultaneously, that it has

become difficult to stop the wanton

destruction of life and property and

looting. The Mohara power-house

which suppliesthe electric current

to the whole of Srinagar has been

burnt. The number of women who

have been kidnapped and raped

makes my heart bleed. The wild

forces thus let loose on the State

are marching on with the aim of

capturing Srinagar, the summer

Capital of my Government, as first

step to over running the whole

State.

The mass infiltration tribesman

drawn from the distant area of the

North-West Frontier coming

regularly in motor trucks using

Mansehra-Muzaffarabad Road and

fully armed with up-to-date

weapons cannot possibly be done

without the knowing of the

Provincial Government of the

North-West Frontier Province and

the Government of Pakistan. In

spite of repeated requests made by

my Government no attempt has

been made to check these raiders

or stop them from coming to my

State. The Pakistan Radio even put

out a story that a Provisional

Government has been set up in

Kashmir. The people of my State

both the Muslims and Non-Muslims

generally have taken no part at all.

With the conditions obtaining at

present in my State and to great

emergency of the situation as it

exists, I have no option but to ask

for help from the Indian Dominion.

Naturally they cannot send the help

asked for by me without my State

acceding to the Domination of

India. I have accordingly decided to

do so and I attach the Instrument

of Accession for acceptance by

your Government. The other

alternative is to leave my State and

my people to free-booters. On this

basis no civilized Government can

exist or be maintained. The

alternative I will never allow to

happen as long as I am Ruler of the

State and I have life to defend my

country.

I may also inform your Excellency’s

Government that it is my intention

at once to set up an interim

Government and ask Sheikh

Abdullah to carry the

responsibilities in this emergency

with my Prime Minister.

 If my State has to be saved

immediate assistance must be

available at Srinagar. Mr. Menon is

fully aware of the situation and he

will explain to you, if further

explanation is needed.

In haste and with kindest regards,

Yours Sincerely
Hari Singh
The Palace, Jammu
26thOctober, 1947”

Response of Lord Mountbatten to

Maharaja:

“My dear Maharaja Sahib,

Your Highness’ letter dated 26

October has been delivered to me

by Mr. V. P. Menon. In the special

circumstances mentioned by your

Highness my Government have

decided to accept the accession of

Kashmir State to the Dominion of

India. In consistence with their

policy that in the case of any State

were the issue of accession has

been the subject of dispute, the

question of accession should be

decided in accordance with the

wishes of the people of the State, it

is my Government’s wish that as

soon as law and order have been

restored in Kashmir and her soil

cleared of the invader, the question

of the State’s accession should be

settled by a reference to the

people.
Meanwhile in response to your

Highness’ appeal for military aid,

action has been taken today to

send troops of the Indian Army to

Kashmir to help your own forces to

defend your territory and to protect

the lives, property and honour of

your people.

My Government and I note with

satisfaction that your Highness has

decided to invite Sheikh Abdullah

to form an interim Government to

work with your Prime Minister.

With kind regards,

I remain
Yours Sincerely,
(Sd-Mountbatten of Burma)
New Delhi
Oct 27, 1947”
 The “Instrument of Accession” was

never followed by any “Merger

Agreement” between Maharaja of the

State and Government of India nor by

any “Supplementary Agreement”.

XVIII. Legal position of Instrument of

Accession:

Several decisions have been delivered

by this Hon’ble Court laying down the

law in relation to Instrument of

Accession as were executed by

“princely States” with Union of India.

Hereinbelow principles, as ruled by this

Hon’ble Court, are stated:

i. That no suzerain rights were given

to the Dominion of India by the

Indian Independence Act.

ii. That the accession of Indian States

to the Dominion of India did not

extinguish those States as entities.

They only became part of Dominion

of India as Constituent States.

iii. That the accession and acceptance

of the Indian States by the

Dominion of India are “acts of

State”.

iv. That the native Indian Rulers were

sovereign in the territories under

their jurisdiction and they parted

with their sovereignty in stages,

firstly on “accession”, then on

“integration” and finally by

“merger”i.e. by State territory

becoming part and parcel of the

territory of Union of India. It means

 complete extinction of their

separate existence and individual

sovereignty and of their States as

separate political units.

v. That the Federating States which

did not end their State life under

Merger Agreement, the laws as

were in force in such States stood

protected and continued to apply

under Article 372 of the

Constitution.

vi. That under “Instrument of

Accession” the Dominion of India

acquired power to legislate for the

territories of the existing State in

respect of defence, external affairs

and communications. Under

Section 5 of the Indian

 Independence Act the dominion

was as from August 15, 1947. The

Union comprising the existing

State. But the existing State

continued to retain its separate

existence and independent

sovereignty until its complete

merger in the dominion.

XIX . Position under International

law.

International law also makes provisions

dealing with “Instruments of Accession”

and their legal implications.

Hereinbelow principles of international

law are stated:

i) One of the essential elements of

State-hood is the occupation of a

territorial area within which State

 law operates. Over this area

superior authority is vested in the

State. This is concept of territorial

sovereignty which signifies that

within this territorial domain

jurisdiction is exercised by the

State over persons and property to

the exclusion of other States. There

must exist right to exercise therein,

to the exclusion of any other State,

the functions of a State.

ii) It is some times said that territorial

sovereignty is indivisible, but there

have been numerous instances in

international practice both of

division of sovereignty and of

distribution of the component of

sovereignty. International law does

 not restrict the manner in which

the sovereignty has the particular

territory can be bestowed on, or

withdrawn from it.

iii) Cession is an important method of

acquiring territorial sovereignty. It

rests on the principle that the right

of transferring its territory is a

fundamental attribute of the

sovereignty of a State.

From the aforesaid principles, both

under the Constitution of India and

International law, following legal

implications of instrument of Accession

are clearly discernible.

a) From the aforesaid legal position it

is clear that Indian Native States

became sovereign entities on

 August 15, 1947 having regard to

the provisions of Government of

India Act, 1935 and Indian

Independence Act, 1947.

b) That the Indian Native States, in

exercise of their sovereign

authority entered into “Instrument

of Accession” which was presented

to them by Government of India,

Ministry of States. The Maharaja of

State of Jammu and Kashmir also

entered into “Instrument of

Accession” on October 26, 1947.

c) That in terms of “Instrument of

Accession” Dominion of India was

given the authority, subject to the

terms of the “Instrument of

Accession”, to exercise in relation

to the State of Jammu and Kashmir

such functions as are vested in the

Dominion under the Government of

India Act, 1935. Further authority

was given to the Dominion

Legislature to make laws for the

State as were specified in the

Schedule. Under clause 7 it was

provided that execution of

“Instrument of Accession” will not

commit the State to accept any

future Constitution of India or to

fetter discretion of the Maharaja in

making arrangements. Under

clause 8 the continuance of

sovereignty over the State by the

Maharaja was protected.

d) That in terms of the “Instrument of

Accession” the Dominion of India

was only given the power to

legislate in respect of the matters

specified in “Instrument of

Accession”. There was no territorial

integration of the State with

Dominion of India. The Maharaja

continued to retain independent

and separate status of the State.

e) That the position as on 26.10.1947

was that the Maharaja of the State

had executed “Instrument of

Accession”; the Constituent

Assembly of India was busy with

the making of Constitution for

which the process had been started

from November, 1946; the State

 had not executed any “Merger

Agreement” nor taken any further

steps towards integration.

f) That on December 31, 1947

Government of India lodged a

complaint with United National

Organization against Government

of Pakistan, on account of the

developments which had taken

place in the State before and after

execution of “Instrument of

Accession”.

g) That after the complaint was

lodged, the Security Council of

United Nations, till October, 1949

had passed several Resolutions.

These Resolutions were;

i) Resolution adopted on

17.01.1948. A true copy of the

security council resolution dated

17.01.1948 is annexed herewith

and Marked as

ANNEXURE-P/1(Page___to____)

ii) ii) Resolution adopted on

20.01.1948. A true copy of the

security council resolution dated

20.01.1948 is annexed herewith

and Marked as

ANNEXURE-P/2(Page___to____)

iii) Resolution adopted on

21.04.1948. A true copy of the

security council resolution dated

21.04.1948 is annexed herewith

and Marked as

ANNEXURE-P/3(Page___to____)
iv) iv) Resolution adopted on

03.06.1948. A true copy of the

security council resolution dated

03.06.1948 is annexed herewith

and Marked as

ANNEXURE-P/4(Page___to____)

v) Resolution adopted on August

13, 1948. A true copy of the

UNCIP Resolution dated

13.08.1948 is annexed herewith

and Marked ANNEXURE-P/5

(Page____to____)

vi) Resolution adopted on January 5,

1949. A true copy of the

resolution (s)/1196) adopted by

United Nation Commission for

India and Pakistan dated

05.01.1949 is annexed herewith

 and Marked ANNEXURE-P/6

(Page____to____)

vii) Truce Terms of UNCIP dated

02.05.1949.

The Resolutions pertained to the

State of Jammu and Kashmir and

had their impact on the

constitutional relationship between

State and Union of India.

h) That till June, 1949 there were no

representatives of the Government

of Jammu and Kashmir in the

Constituent Assembly of India. For

purposes of seeking admission of

the representatives of the State of

Kashmir, Constituent Assembly

Rules were amended providing for

filling up of four seats by

nomination. The nomination was to

be made by the Ruler of Kashmir

on the advice of his Prime Minister.

After such amendment was made

in the Rules it was only on 16 th

June, 1949 that four nominated

members joined the Constituent

Assembly of India. After much

negotiations between the

representatives of the State and

the Members of the Constituent

Assembly/Government of India,

Article 306-A was introduced in the

Constituent Assembly for adoption

(it is this Article which later on was

numbered as Article 370). During

the debate Mr.

GopalaswamyAyyanger in his
statement while replying to various

questions of the members of the

Assembly clarified the position that

the State of Jammu and Kashmir is

being dealt with separately due to

“special conditions of Kashmir. That

apart State is not yet ripe for this

kind of integration. It is the hope of

every body here that in due course

even Jammu and Kashmir will

become ripe for the same sort of

integration as has taken place in

case of other States. At present it is

not possible to achieve that

integration. There are various

reasons why this is not possible

now.”
So far as State of Jammu and

Kashmir is concerned it was further

stated;

“The Honourable Shri N.

GopalaswamiAyyangar: The
discrimination is due to the special
conditions of Kashmir. That particular
State is not yet ripe for this kind of
integration. It is the hope of everybody
here that in due course even Jammu and
Kashmir will become ripe for the same
sort of integration as has taken place in
the case of other States. (Cheers) At
present it is no possible to achieve that
integration. There are various reasons
why this is not possible now, I shall refer
again to this a little later.
In the case of the other Indian States or
Unions of States there are two or three
points which have got to be remembered.
They have all accepted the Constitution
framed for States in Part I of the new
Constitution and those provisions have
been adapted so as to suit conditions of
Indian States and Unions of States.
Secondly, the Centre, that is the
Republican Federal Centre will have
power to make laws applying in every
such State or Union to all Union
Concurrent Subjects. Thirdly, a
uniformity of relationship has been
established between those States and
Unions and the Centre. Kashmir’s
conditions are, as I have said, special and
require special treatment.
I do not want to take much of the time of
the House, but I shall briefly indicate
what the special conditions are. In the
first place, there has been a war going on
within the limits of Jammu and Kashmir
State.
There was a cease-fire agreed to at the
beginning of this year and that cease-fire
is still on. But the conditions in the State
are still unusual and abnormal. They
have not settled down. It is therefore
necessary that the administration of the
State should be geared to these unusual
conditions until normal life is restored as
in the case of the other States.
Part of the State is still in the hands of
rebels and enemies.

We are entangled with the United Nations

in regard to Jammu and Kashmir and it is
not possible to say now when we shall be
free from this entanglement. That can
take place only when the Kashmir
problem is satisfactorily settled.
Again, the Government of India have
committed themselves to the people of
Kashmir in certain respects. They have
committed themselves to the position that
an opportunity would be given to the
people of the state to decide for
themselves whether they will remain with
the republic or wish to go out of it. We
are also committed to ascertaining this
will of the people by means of a plebiscite
provided that peaceful and normal
conditions are restored and the
impartiality of the plebiscite could be
guaranteed. We have also agreed that the
will of the people, through the instrument
of a constituent assembly, will determine
the constitution of the State as well as the
sphere of Union jurisdiction over the
State.
At present, the legislature which was
known as the PrajaSabha in the State is
dead. Neither that legislature nor a
constituent assembly can be convoked or
can function until complete peace comes
to prevail in that State. We have therefore
to deal with the Government of the State
which, as represented in its Council of
Ministers, reflects the opinion of the
largest political party in the State. Till a
constituent assembly comes into being,
only an interim arrangement is possible
and not an arrangement which could at
once be brought into line with the
arrangement that exists in the case of the
other States.
Now, if you remember the viewpoints that
I have mentioned, it is an inevitable
conclusion that, at the present moment,
we could establish only an interim system.
Article 306A is an attempt to establish
such a system.
I shall now proceed to take the House
through the provisions of this article. As
honorable Members will remember, the
constitution of Indian States is mainly
governed by article 211A of this
Constitution which applies the
Constitution to Indian States, subject to
the modifications contained in Part VI-A
read with the Schedule. So far as that
provision in concerned, I have already
indicated to you that the provisions
regarding the Constitution of other States
could not at present be applied to Jammu
and Kashmir. Therefore, clause 91) (a) of
this article says that the provisions of
article 211A of this Constitution shall not
apply to the State of Jammu and Kashmir.
The Second portion of this article relates
to the legislative authority of Parliament
over the Jammu and Kashmir State. This
governed primarily by the Instrument of
Accession. Broadly speaking, that
legislative power is confined to the three
subjects of defence, foreign affairs and
communications but as a matter of fact
these broad categories include a number
of items which are listed in the Instrument
of Accession. I believe they number some
twenty to twenty-five. Now, these items
have undergone a change in description,
in numbering, in arrangement, as
amongst themselves, in List I and List III
of the new Constitution. It is therefore
necessary that the items mentioned in the
Instrument of Accession should be
brought into line with the changed
designations of entries in Lists I and III of
the new Constitutions.
So, clause (1) (b) of article 306A says that
this listing of the items as per the terms of
the new Constitution should be done by
the President in consultation with the
government of the State.
Clause (b) (ii) refers to possible additions
to the List in the Instrument of Accession,
and these additions could be made
according to the provisions of this article
with the concurrence of the government of
the State. The idea is that even before the
Constituent Assembly meets, it may be
necessary in the interests of both the
Centre and the State that certain items
which are not included in the Instrument
of Accession would be appropriately
added to the list in the Instrument so that
administration, legislation and executive
action might be furthered, and as this may
happen before the Constituent Assembly
meets, the only authority from whom we
can get consent for the addition is the
Government of the State. That is provided
for.
Then, there is the Explanation, which
defines what the Government of the State
means. The Government of the State is
defined both in the Constitution which is
now supposed to be in force in the Jammu
and Kashmir State as well as in the
Proclamation which the Maharaja issued
on the 5th March, 1948. The terms of the
Proclamation, to the extent that they are
inconsistent with the provisions of the
Constitution Act of the State, will prevail
over that Constitution Act, and therefore
it is that is this Explanation it is the
Proclamation which is referred to. Under
the terms of that Proclamation the
Maharaja constituted an interim popular
Government, and he said:-
“I hereby ordain as follows:-

(1) My Council of ministers shall consist

of the Prime Minister and such other
Ministers as may be appointed on the
advice of the Prime Minister. I have by
Royal Warrant appointed, Sheikh Mohd.
Abdullah as the Prime Minister with
effect from the Ist day of March 1948.
He proceeds-

“The Prime Minister and other Ministers

would functioning, and so he instituted a
kind of responsible Government with a
Prime Minister and colleagues who
would own collective responsibility for
their acts and regard themselves as
jointly responsible for all the acts of the
Government. Now, that is brought out in
this Explanation.
The Honourable Shri K. Santhanam : The
Explanation says that the Maharaja will
be recognized by the Union instead of by
the President.
The Honourable Shri N.
GopalaswamiAyyangar : Perhaps we may
leave it to the Third Reading. As you
know the scheme of the Constitution Act
is that the Rajpramukh must be
recognized by the President. So, this also
says that the Maharaja of Jammu and
Kashmir should be a persons recognized
for the time being by the Union.
As regards the Council of Ministers, this
Proclamation set up a system under
which this Council was to be established,
and viz., that the Maharaja first finds the
Prime minister and then on his advice
appoints his colleagues, and the
Explanation as now amended by me says
that whatever Council of Ministers is in
being at the time will, along with the
Maharaja to whom they are responsible
give their concurrence or give their
advice on such matters as are referred to
them under this article.
Clauses (c) and (d) refer to the provision
of the Constitution other than the matters
listed in Lists I and III. These various
provisions have been divided into certain
categories. The first according to this
draft is that article 1 of the Constitution
will automatically apply. As you know, it
describes the territory of India, and
includes amongst these territories all the
States mentioned in part III, and Jammu
and Kashmir is one of the States
mentioned in Part III. With regard to the
other provisions in the Constitution, these
will apply to the Jammu and Kashmir
State with such exceptions and
modifications as may be decided on when
the President issues an order to that
effect. That Order can be issued in regard
to subjects mentioned in the Instrument of
Accession only after consultation with the
Government of the State. In regard to
other matters, the concurrence of that
Government has to be taken.
Now, it not the case, nor is it the intention
of the members of the Kashmir
Government whom I took the opportunity
of consulting before this draft was
finalized – it is not their intention that the
other provisions of the Constitution are
not to apply. Their particular point of
view is that these provisions should apply
only in case where they can apply the
only subject to such modifications or
exceptions as the particular conditions of
the Jammu and Kashmir State may
require. I wish to say no more about that
particular point at the present moment.
Then we come to clause (2). You will
remember that several of these clauses
provide for the concurrence of the
Government of Jammu and Kashmir
State. Now, these relate particularly to
matters which are not mentioned in the
Instrument of Accession, and it is one of
our commitments to the people and
Government of Kashmir that no such
additions should be made except with the
consent of the Constituent Assembly
which may be called in the State for the
purpose of framing its Constitution. In
other words, what we are committed to is
that these additions are matters for the
determination of the Constituent
Assembly of the State.
Now, you will recall that in some of the
clauses of this article we have provided
for the concurrence of the Government of
the State. The government of the State feel
that in view of the commitments already
entered into between the State and the
Centre, they cannot be regarded as final
authorities for the giving of this
concurrence, though they are prepared to
give it in the interim periods but if they do
give this concurrence, this clause
provides that concurrence should be
placed before the Constituent Assembly
when it meets and the Constituent
Assembly may take whatever decisions it
likes on those matters.
The last clause refers to what may happen
later on. We have said article 211A will
not apply to the Jammu and Kashmir
State. But that cannot be a permanent
feature of the Constitution of the State,
and hope it will not be. So the provision is
made that when the Constituent Assembly
of the state has met and taken its decision
both on the Constitution for the State and
on the range of federal jurisdiction over
the State, the President may on the
recommendation of that Constituent
Assembly issue an order that this article
306A shall either cease to be operative,
or shall be operative only subject to such
exceptions and modifications as may be
specified by him. But before he issues any
order of that kind the recommendation of
the Constituent Assembly will be a
condition precedent. That explains the
whole of this article.
The effect of this article is that the Jammu
and Kashmir State which is now a part of
India will continue to be a part of India,
will be a unit of the future Federal
Republic of India and the Union
Legislature will get jurisdiction to enact
laws on matters specified either in the
 Instrument of Accession or by later
addition with the concurrence of the
Government of the State. And steps have
to be taken for the purpose of convening a
Constituent Assembly in due course which
will go into the matters I have already
referred to. When it has come to a
decision on the different matters it will
make a recommendation to the President
who will either abrogate article 306A or
direct that it shall apply with such
modifications and exceptions as the
Constituent Assembly may recommend.
That, Sir, is briefly a description of the
effect of this article, and I hope the House
will carry it.”

Thereafter somewherein October,

1949 the Constituent Assembly

adopted Article 370, the whole of

the Constitution was finally

adopted on November 26, 1949.

XX. That the petitioners say that when the

Constitution of India was being made

and provision for Jammu and Kashmir

was sought to be included in it, the

matter was taken up by the United

Nations Security Council for

consideration as to whether during

pendency of the settlement of dispute,

India can be allowed to make

Constitution for the State of Jammu and

Kashmir. The Government of India

responded and in this behalf the

Government of India addressed a

communication to the United Nations,

reproduced hereinbelow:

“While the Constitution of India,

which inter alia provides for the

relations of existing State to the

Government of India was under

consideration, it would have been

unfair to the Government and the

people of the State of Jammu and

Kashmir to deny them opportunity

of participating in the discussions

of that Constitution. Such

participation was not intended and

does not, in fact, alter the

Government of India’s

determination to abide, in the

matter of accession, by freely

declared will of the people of the

Jammu and Kashmir. Should that

will be against the State continuing

to be part of India, if and when it

comes to express in a

constitutional way under conditions

 of peace and impartiality, the

representation of the State in the

Indian Parliament would

automatically cease and provisions

of the Constitution of India that

govern the relations of the State of

Jammu and Kashmir with the Union

of India will also cease to operate.”

XXI. That the petitioners submit that in view

of the limited nature of accession, non

execution of Merger Agreement

between the Union and the State, the

commitments made before the United

Nations followed by its Resolutions, the

position explained in the Constituent

Assembly debates and in the White

Paper published by Government of

 India clearly demonstrate and establish

the reasons and the cause of this

special position.

XXII. That this position has been accepted

by Government of India in the White

Paper published by Ministry of States in

Para 221. It has been stated as follows:

“The State of Jammu and Kashmir

acceded to India on October 26,

1947. The Form of Instrument of

Accession executed by the Ruler of

the State is the same as that of the

Instrument executed by the Ruler

of other acceding States. Legally

and Constitutionally, therefore, the

position of this State is the same as

that of the other acceding States.

The Government of India, no doubt,

stand committed to the position

that the accession of this State is

subject to confirmation by the

people of the State. This, however,

does not detract from the legal fact

of accession. The State has,

therefore, been included in Part-B

States. In view of the special

problems arising in respect of this

State and the fact that the

Government of India have assured

its people that they would

themselves finally determine their

political future the following special

provision has been made in the

Constitution:

“370- (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 matter 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:- For the purpose of this

Article the Government of the State

means the person for the time being

recognized 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 Maharaja’s Proclamation dated

the Fifth Day of March, 1948;

(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 Sub

Clause (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 State.

(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

proviso to Sub Section (d) of that

clause be given power 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 provision 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 recommendations

of the Constituent Assembly of the

State referred to in clause (2) shall

be necessary before the President

issues such a Notification.”

The effect of this provision is that

the State of Jammu and Kashmir

continues to be part of India. It is a

unit of Indian Union and the Union

Parliament will have jurisdiction to

make laws for this State on matters

specified either in the Instrument of

Accession or by later additions with

the concurrence of the Government

of the State. An order has been

issued under Article 370 specifying;

(1) the matters in respect of which

the Parliament may make laws for

the Jammu and Kashmir State and

(2) the provisions other than Article

1 and Article 370 which shall apply

to that State subjects shall be

taken for the purpose of convening

a Constituent Assembly which will

go into these matters in detail and

when it comes to a decision on

 them, it will make a

recommendation to the President

who will either abrogate Article 370

or direct that it shall apply with

such modifications and exceptions

as he may specify”.

These then are the circumstances

under which State of Jammu and

Kashmir enjoys special constitutional

position unlike other States in India.

The special Constitutional position was

not the outcome of any political

concession. It is the right which had

vested in the State for the reasons and

on the grounds stated hereinabove. The

rights of the State and eventually of the

subjects (permanent residents) of the

State stood protected and immune

from challenge.

That Mr. V.P. Menon in his book

“Integration of the Indian States” has

observed that before 15th August, 1947

Lord Mountbatten spent four days with

Maharaja Hari Singh and that he told

the Maharaja that “if he accedes to

Pakistan, India would not take it amiss

and that that he had a firm assurance

on this from Sardar Patel himself. Lord

Mountbatten went further to say that in

view of the composition of the

population, it was particularly important

to ascertain the wishes of the people.

He further writes in the book;

“With the Instrument of Accession

and the Maharaja’s letter I flew

 back at once to Delhi. Sardar was

waiting at the Aerodrome and we

both went straight to a meeting of

the Defence Committee which was

arranged for that evening. There

was a long discussion at the end of

which it was decided that the

accession of Jammu and Kashmir

should be accepted, subject to the

proviso that a plebiscite would be

held in the State when law and

order situation allow.”

XXIII. The cause for placing Article 370 in

Part XXI of the Constitution of India was

only because Government of India

believed that the Constituent Assembly

of the State of Jammu and Kashmir

 would recommend for abrogation of

Article 370 in terms of the said Article.

Since the Constituent Assembly of the

Jammu and Kashmir at no stage

recommended to the President of India

for the abrogation of Article 370,

instead only approved Constitution

(Application to Jammu and Kashmir)

Order, 1954, the said provision became

permanent provision in the Constitution

of India. The Constituent Assembly of

the Jammu and Kashmir State was

dissolved in January, 1958.

XXIV. Impact of impugned Notifications

and the
Legislation.

i) That in terms of the impugned

Presidential Notifications, by an

invidious process and outcome of

 constitutional fraud merger of the

State has been brought with Union

of India without any “Merger

Agreement” and without

constitutional basis.

v) That to begin with the Presidential

Notifications and the Legislation

have been passed when the State

of Jammu and Kashmir is under

President’s Rule. C.O. 272 dated 5 th

August, 2019 is shown to be based

on the “concurrence” of the

Government of Jammu and

Kashmir. In real terms it means

that the concurrence has been

given by Governor of Jammu and

Kashmir. How, when, where

concurrence was given by the

“Governor” of Jammu and Kashmir

has not been mentioned in the

Notification.

The first question which arises for

consideration is;

Whether the Governor of Jammu

and Kashmir had any constitutional

or legal jurisdiction to give

concurrence on behalf of

Government of Jammu and Kashmir

to the Presidential Notification C.O.

272 dated 5th August, 2019?

It is submitted by the petitioners

that the Governor of the State of

Jammu and Kashmir had no

constitutional or legal jurisdiction to

give any “concurrence”. This is so

for the following reasons:

a) That during the President’s

Rule under Article 356 of the

Constitution, the Governor acts

as an Agent of the President.

He can exercise only such

powers as are delegated to

him. The petitioners submit

that the President of India, as

the power donor, himself had

no power to delegate the

authority to give concurrence

under Article 370. That being

so the President of India had no

constitutional or legal

jurisdiction to delegate

authority to the Governor to

accord any concurrence

contemplated by Article 370.

b) That the Governor of the State

of Jammu and Kashmir has no

authority of his own to give

concurrence under Article 370.

c) That the concurrence under

Article 370 can be given only

by the specified authority if

such concurrence is preceded

by advice of the Council of

Ministers. In other words no

concurrence can be given in

the absence of Council of

Ministers.

d) That giving of “concurrence”

by the Governor amounts to

usurpation of constitutional

jurisdiction and the exercise is

colourable.
e) That the President of India

under Article 370 upon

“concurrence”is entitled to

issue appropriate notification.

But when the State is under

President’s Rule, the President,

muchless the Governor, have

no jurisdiction to issue any

notification muchless alter the

constitutional relationship

between the State and the

Union.

f) That execution of “Instrument

of Accession” by Maharaja Hari

Singh was an act of State. He

retained complete sovereign

power in respect of subjects.

The sovereign power which the

Maharaja retained under

“Instrument of Accession”

came to be regulated, their

exercise, by Article 370. In

essence the surrender of

powers to the Union,

[whichotherwise could be done

only under a Merger

Agreement or a Supplementary

Agreement as provided under

“Instrument of Accession”,

Government of India Act, 1935

and Indian Independence Act,

1947]could be made only and

only in accordance with the

procedure and by the

authorities expressly

mentioned in Article 370. It is

 the Sader-i-Riyasat, recognized

by the President, who can act

on behalf of Government of

Jammu and Kashmir, provided

he is advised in this behalf by

duly elected Council of

Ministers.

g) That That Article 370 as it was

originally adopted and

subsequently amended on the

recommendations of the

“Constituent Assembly”

instead of “Maharaja” of the

State, “Sadar-i-Riyasat” of the

State came to be mentioned in

Article 370.

Having regard to the

proce3dure adopted for the

amendment, it is submitted by

the petitioners that it is only by

following the said procedure

that amendments can be made

in Article 370.

Instead in the application of

Article 367 of the Constitution

of India, which relates to

interpretation of the

Constitution and applies

General Clauses Act to the

interpretation of the

Constitution, in its application

the President of India vide C.O.

48 notified in Clause 4, in so far

as it is relevant as under:

“367 (4) :
(aa) references to the person

for the time being

recognized by the

President on the

recommendation of the

Legislative Assembly of the

State as the Sadar-i-

Riyasat of Jammu and

Kashmir, acting on the

advice3 of the Council of

Ministers of the State for

the time being in office,

shall be construed as

references to the Governor

of Jammu and Kashmir.

(b) references to the

Government of the said

State shall be construed as

 including references to the

Governor of Jammu and

Kashmir acting on the

advice of his Council of

Ministers.”

Having regard to the above it is

self evident that the President

of India, by incorporation of the

aforesaid provision in Article

367 to the State has by-passed

the procedure of amendment

as was adopted by the

President when amendment

was carried out in Article 370

vide C.O. 44 on the

recommendations of

“Constituent Assembly”. The

petitioners submit that under

impugned C.O. 272 the

President of India has

superseded Constitution

Application Order, 1954 under

which Article 367 with the

aforesaid modification had

been made applicable as once

again, after supersession,

reapplied the same

modification as it existed prior

to the passing of the impugned

order.

The contention of the

petitioners is that it is a

constitutional fraud to make

amendment in Article 370 by

modifying Article 367 when for

any change in Article 370

 mechanism for amendment

provided by it alone has to be

adopted, what cannot be done

indirectly.

h) That the Presidential

Notification destroys the

constitutional basis and the

original intent of Article 370

and that the changes by way of

amendment made in Article

370 are clearly outcome of

constitutional fraud and

conspiracy primarily intended

to carry forward agenda of the

political party in powers.

i) That the Notifications

completely destroy the special

status and position of the State

 of Jammu and Kashmir.

Parliament has acquired to

itself full authority to deal with

the State. By enacting

impugned Legislation, the

Parliament has manifested its

intention of dividing the State

and reducing its parts to Union

Territories.

j) That the impugned

Notifications and the

Legislation has robbed the

rights of permanent residents

of the State which rights stood

protected under the

Constitution of India,

Constitution Application

Orders, Constitution of Jammu

 and Kashmir and under several

other enactments.

XXV. Essence of Article 370.

That in the background of the historical

process, reason and cause for making

special provision for the State of Jammu

and Kashmir, Article 370 was clearly

intended to achieve certain

constitutional position, constitutional

values, democratic principles, principles

of federation and the respect and the

rights of the peoples of a federating

unit in the Union. It may be stated that

it is not necessary under any principle

of law, neither the Constitution of India

recognizes such principle, that all the

federating units of the Union should

have identical rights and privileges. It is

submitted that it is open for a

federating unit, which prior to its joining

was an independent, separate

sovereign political entity, to join Union

on certain terms and conditions as may

be agreed to between the parties.

Article 14 has no application to

constitutional relationship of the

federating units with the Union. In fact

the Constitution itself makes several

provisions granting safeguards and

protections, privileges and immunities

to the federating units within the Union.

That the State of Jammu and Kashmir

being one of the Federating Units

agreed to be a part of Union on its own

terms and conditions. These terms and

conditions are clearly spelt out by the

 Instrument of Accession and Article

370.

XXVI. Analysis of Article 370.

a) That Sub section (1) of this Article

begins with a clause which

excludes all the provisions of

Constitution of India.

It is submitted that this has been

done keeping in view the position

that the Constitution of India

primarily deals with all such

federating States which have

completely merged with the Union.

None of the federating units has

retained “State life”. This clause

was, therefore, necessary so as to

 provide different constitutional

basis for the State.

b) That Article 370(1)(a) states that

the provisions of Article 238 shall

not apply in relation to the State of

Jammu and Kashmir.

That Article 238, was originally

adopted by the Constituent

Assembly. This Article appeared in

Part-VII and deal with the States in

Part-B of the Ist. Schedule.

Part-A of the Ist. Schedule

mentioned the States and the

territories of India. In Part-B names

of the States were mentioned.

Jammu and Kashmir was also

mentioned in Part-B. Article 238

reads as under:

“The provisions of Para-VI shall

apply in relation to the States

specified in Part-B of the Ist.

Schedule as they apply in relation

to the States specified in Part-A of

that Schedule subject to the

following modifications and

omissions, namely;

(i) For the word “Governor”

wherever it occurs in the said

Part-VI, except where it occurs

for the second time in clause

(B) of Article 232, the word

“Raj-Pramukh” shall be

substituted.
(ii) In Article 152, for the word and

letter “Part-A” the word and

letter “Part-B” shall be

substituted.

(iii) Article 155, 156 and 157 shall

be omitted.

(iv) In Article 158;

(i) In Clause 1 for the words

“be appointed” the word

“becomes” shall be

substituted.

(ii) For the Clause (3) the

following clause shall be

substituted, namely,

(3) The “Raj-Pramukh”

shall unless he has his

own residence in the

principle seat of
 Government of the State,

be entitled without

payment of rent to use

of an official residence

and shall also be entitled

to such allowance and

privileges as the

President may by

general or special order

determine;

(iii) In clause (4) the words

“emoluments and” shall

be omitted.

(v) In Article 159, after the words

“senior most judge of that

court available” the words “or

any such other manner as may

be prescribed in that behalf by

 the President” shall be

inserted.

(vi) In Article 164, for the proviso to

clause (1) the following proviso

shall be substituted, namely;

“provided that in the State of

Madya Bharat there shall be a

Minister Incharge of Tribal

Welfare who may in addition be

incharge of the welfare of the

Scheduled Castes and

Backward Classes or any other

work.”

(vii) In Article 168, for clause (1) the

following clause shall be

substituted, namely;
 “For every State there shall be

a legislature which shall consist

of the Raj-Pramukh and –

(a) In the State of Mysore two

houses;

(b) In other states one house.

(viii) In Article 186 for the

words “as are specified in the

IInd Schedule” the words “as

the Raj-Pramukh may

determine” shall be

substituted.

(ix) In Article 195, for the words “as

were immediately before the

commencement of this

Constitution applicable in the

case of members of legislative

assembly of the corresponding

 province” the words “as the

Raj-Pramukh may determine”

shall be substituted.

(x) In Clause 3 of Article 202;

(i) For sub clause (a), the

following sub clause shall

be substituted, namely;

“(a). The allowances of the

“Raj-Pramukh” and other

expenditure relating to his

office as determined by

the President by general or

special order”;

(ii) For the sub clause (f) the

following sub clause shall

be substituted, namely;

“(f) In the case of the State

of Travancore-Kochin, a
sum of 51 lacs of rupees

required to be paid

annually to the Devaswom

Fund under the covenant

entered into before the

commencement of this

Constitution by the Rulers

of Indian States of

Travancore and Kochin for

the formation of Union

State of Travancore and

Kochin.

(g) Any other expenditure

declared by this

Constitution, or by the

Legislature of the State by

law to be so charged.”
(xi) In Article 208 for clause (2) the

following clause shall be

substituted, namely,

“(2) Until Rules are made

under clause (1) the Rules of

Procedure and Standing Orders

in force immediately before

commencement of this

Constitute with respect to the

legislature of the State or

where no house of the

Legislature for the State exist,

the Rules of Procedure and

Standing Orders in force

immediately before such

commencement with respect to

the Legislative Assembly of

such Province as may be

 specified in that behalf by the

“Raj-Pramukh” of the State

shall have effect in relation to

the legislature of the State

subject to such modifications

and adaptations as may be

made therein by the Speak of

the Legislative Assembly or the

Chairman of the Legislative

Council, as the case may be.

(xii) In clause (2) of Article 214 for

the word “Province” the words

“Indian State” shall be

substituted.

(xiii) For Article 221, the

following Article shall be

substituted, namely;
“221.(1) There shall be paid to

the Judges of each High Court

such salaries as may be

determined by the President

after consultation with the

“Raj-Pramukh”.

(2) Every Judge shall be

entitled to such allowances and

such rights in respect of leave

of absence and pension as may

from time to time be

determined by or under law

made by Parliament and until

so determined such allowances

and rights as may be

determined by the President

after consultation with the“Raj-

Pramukh”.
 Provided that neither the

allowances of a Judge nor his

rights in respect of leave of

absence or pension shall be

varies to its disadvantage after

his appointment.”

Having regard to the provisions of Article

238, it is submitted that the matters which

were dealt with by Article 238 were the

matters which stood reserved for the States.

That apart from the fact the said Article did

not apply to the State of Jammu and

Kashmir, the said Article was repealed by

the Constitution (7th Amendment) Act, 1956.

Jammu and Kashmir came to be mentioned

 in the First Schedule. The amendment will

have no impact on Article 370.

c) That Article 370(1) (b) delineates

the power of the Parliament to

make laws for the State. It is

submitted that the expression

“laws” means “legislative

enactments”. According to Article

370(1)(b)(i) the Parliament had the

power to make laws on the matters

mentioned 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.

It is submitted by the petitioners

that it means that since the

“Instrument of Accession”

authorized the dominion legislature

to make laws for the State in

respect of three matters i.e.

defence, foreign affairs and

communications, the said provision

empowers the Parliament to make

laws on these three subjects

wherever they were so mentioned

either in the “Union List” or in the

“Concurrent List” and for making

those laws “consultation” with the

 Government of the State was made

essential.

d) That under Article 370(1)(b)(ii) the

power of the Parliament to make

legislative enactments in respect of

matters mentioned in the Union

List and the Concurrent List, which

matters did not correspond to

matters specified in the Instrument

of Accession, “concurrence of the

Government of State” was

necessary.

Thus under Article 370(1)(b)(i)(ii)

the power of the Parliament to

make laws for the State is

restricted and the Parliament can

make such laws only with the

“consultation” (if they correspond

 to matters mentioned in Instrument

of Accession) and or with

“concurrence” if such laws deal

with matters other than those

mentioned in the “Instrument of

Accession”. In other words the

Parliament did not possess

absolute power under the

Constitution of India, unlike other

States, to make laws for the State

of Jammu and Kashmir either under

List-I of the 7th Schedule or List-III of

the 7th Schedule unless the

conditions prescribed by Article 370

were satisfied.

e) That the explanation appearing

immediately after clause (1)(b)(ii)

clearly identified that for purposes

of Article 370 the “Government of

the State” means the person for

the time being recognized by the

President as the “Sadar-i-Riyasat”

of Jammu and Kashmir acting on

the advice of the Council of

Ministers.

According to the Explanation, the

Constitution clearly identifies as to

which authority constitutes

“Government of the State” and as

to how such authority is to act on

the advice of the Council of

Ministers for the time being in

office”. It is submitted that

“Government of the State” is

mentioned in both clauses 370(1)

(b))i) and (ii). It also means that for

purposes of

“consultation”or“concurrence” in

respect of making of legislative

enactments such concurrence and

“consultation” must come from the

authority mentioned in the

Explanation and when such

authority has acted on the advice

of the Council of Ministers. This

unmistakable legal position clearly

demonstrates that no authority can

act without the advice of the

Council of Ministers should any

“consultation” or “concurrence”be

required to be given for enabling

the Parliament to make law under

Union List or Concurrent List.

The petitioners submit that advice

of the Council of Minister is

necessary.

The petitioners submit that during

the period the State is under

President’s Rule under Article 356,

the Council of Ministers is not

available. The Constitution of India,

in so far as other States are

concerned, provides that the

Parliament will act as the

Legislature of the State where

President’s Rule has been imposed

and Legislature dissolved. This

mechanism will have no application

in the State because there would

be no authority available either for

“consultation” or for “concurrence”

which is a pre-condition for

enabling the Parliament to make

law for the State. In such a

situation where Governor’s Rule is

imposed under Section 92 of the

Constitution of State it is necessary

that the elections are held so as to

have government in place which

can aid and advice the competent

authority for giving “concurrence”

or “consultation”. This is not

envisaged by Article 370 that in the

absence of Government of the

State, as defined in the

Explanation, some other authority

like Parliament of India can act.

f) That under Article 370(1)(c) Article

(1) of the Constitution of India has

been made applicable to the State.

It is submitted that Article 1 defines

the name and territory of the

Union. By virtue of this Article the

territories of the State of Jammu

and Kashmir have been mentioned

in the Ist. Schedule after 7 th

Amendment of the Constitution of

India.

The petitioners submit that it is a

matter in interpretation to be

examined as to whether under the

“Instrument of Accession” the

Maharaja of the Jammu and

Kashmir only transferred the power

to make laws in respect of

“defence”, “communications” and

“foreign affairs” to the dominion of

India or he transferred the territory

to the Union of India. According to

the terms and conditions of the

“Instrument of Accession” in

particular clause 8 of the

Instrument, the Maharaja retained

his sovereignty over the State.

Possession of the territory is one of

the essential elements of

sovereignty. The Maharaja did not

transfer the possession of the

territories of the State of Jammu

and Kashmir to the Union. It is the

submission of the petitioners that

transfer of the power to make law

and the transfer of the territories

 are entirely two independent and

different concepts. It appears that

because of the transfer of

legislative power relating to

“defence” and “communications” it

is presumed by the respondents,

contrary to the Instrument of

Accession, that possession of the

territory of the Jammu and Kashmir

was also transferred. This aspect of

the matter will require examination

by this Hon’ble court in the context

of Article 370.

g) That under Article 370(1)(d) except

Article 1 all other provisions of the

Constitution of India can be applied

in relation to the State subject to

“exceptions” and “modifications”

as the President may by order

specify.

It is submitted that this part of

Article 370 relates to the extension

of the provisions of the Constitution

of India to the State. It is submitted

that the limitations which exist for

applying legislative entries to the

State and for enabling the

Parliament to make laws under

Article 370(1)(b)(i) and (ii) also

apply when the provisions of the

Constitution of India are to be

extended and applied to the State

subject to “exceptions” and

“modifications” as the President

may by order specify.

It is thus clear that under Article

370 clause (1) and its sub clauses

the mandatory requirements of the

Articleare three;

(i) The “Government of the

State” is to be “consulted” or

its “concurrence” to be

obtained as and when power

is to be conferred on the

Parliament to enact a

legislative enactment and

similarly “consultation” and

“concurrence” is required of

the “Government of the

State” when any provision of

the Constitution of India is to

be made applicable by the

President to the State subject

 to “exceptions” and

“modifications” as the

President may specify.

(ii) That the “Government of the

State” means and only

means for Article 370 the

specified authority under the

Explanation which authority

has to act on the advice of

the Council of Ministers for

the time being in office.

(iii) That neither the Parliament

can enact any law for the

State of Jammu and Kashmir

nor the President can extend

any provision of the

Constitution of India of their

own.
h) That under Article 370(2)

procedural requirement of placing

“concurrence” of the “Government

of the State” before the Constituent

Assembly of the State for such

decision as the Assembly may take.

It is under this clause that

Constitution (Application to Jammu

and Kashmir) Order, 1954 was

debated and discussed in the

Constituent Assembly and after

“concurrence” was given by it, the

said Application Order came to be

notified by the President.

i) That under Article 370(3) President

has been given power to publicly

declare that the Article shall cease

to be operative or be operative only

with such “exceptions” and

“modifications” as may be

specified. But before the President

of India can do sorecommendations

of the Constituent Assembly of the

State as referred to in sub clause

(2) of Article 370 is necessary.

Having regard to above, the

petitioners submit that the essence

of Article 370 is;

(i) That it excludes application of

all provisions of the

Constitution of India to the

State of Jammu and Kashmir

except Article 1.

(ii) That for making ordinary

legislative enactments by the

Parliament and or for applying

 any provision of the

Constitution of India to the

State of Jammu and Kashmir

“consultation” and or

“concurrence” of the authority

specified in the Explanation is

necessary.

(iii) That the authority specified in

the Explanation is Sadar-i-

Riyasat and he is the only

authority mentioned, for

purposes of giving

“concurrence” or

“consultation”.It is mandatory

that such “concurrence” or

“consultation” is preceded by

the advice of the Council of

Ministers.
 (iv) That Article 370 can be

declared as inoperative by the

President only and only when

recommendation of the

“Constituent Assembly” is

made in this behalf.

The Article in terms excludes

Parliament and the Legislature

of the State of Jammu and

Kashmir. These institutions

have no role to play when it

comes to the working of Article

370.

XXVII. That having regard to the above it

is submitted by the petitioners that

Article 370 of the Constitution of

India is a bridge between

federating State of Jammu and

Kashmir and Union of India. This

Article subsumes high

constitutional values. It defines

relationship between Union and the

federating state. It identifies

Federal Constitutional balance

between one of the federating

states and the Union. It protects

and safeguards Constitutional

Autonomy of a Federating State.It

recognizes State as a different and

distinct State from rest of the

Federating States. It gives it

identity. By restricting Application

of Laws, it allows the State

Legislature to make its own laws

which the legislature considers to

 be appropriate and suitable for its

own people.

The impugned Presidential Notification

and the Legislation is intended to

establish that there canbe no unity in

diversity. The impugned Notifications

and the Legislation impose ideology of

the party in power on the people of the

State. The action of the respondents

destroys the very fabric of Indian

Constitution and once again betrays

solemn trust.

XXVIII. Constitution making of the State:

That after “Instrument of Accession”

was executed by Maharaja on October

26, 1947 followed by adoption of Article

370 in November, 1949 by the

Constituent Assembly of India and after

the United Nations passed several

Resolutions before and post adoption of

the Constitution of India, the President

issued first Constitutional Application

Order on January 26, 1950 called

“Constitution (Application to Jammu

and Kashmir) Order, 1950”. Since the

Constitution of India had come into

existence and under “Instrument of

Accession” certain matters were

transferred to the Parliament for

purposes of legislation, the Constitution

Application Order extended such of the

provisions of the Constitution of India to

the State which provisions in List-I, II

and III related to defence, foreign

affairs and communications.

After the first Constitution Application

Order was notified the successor of

Maharaja Hari Singh to whom all the

powers had been transferred by

Maharaja Hari Singh directed convening

of Constituent Assembly for the State of

Jammu and Kashmir on May 1, 1951 in

terms of Proclamation of same date.

The Proclamation convening the

Constituent Assembly is reproduced

hereinbelow:

“Whereas it is the general desire of

the people of the State of Jammu

and Kashmir that a Constituent

Assembly should be brought into

being for the purpose of framing a

Constitution for the State;

Whereas it is commonly felt that

the convening of the Assembly can

no longer be delayed without

detriment to the future well-being

of the State;

And whereas terms of the

proclamation of the Maharaja dated

5 March, 1948 in regard to the

convening of a national assembly

as contained in clauses 4 to 6 of

the operative part thereof do not

meet the requirements of the

present situation;

I, Yuvraj Karan Singh, do hereby

direct as follows:

1. A Constituent Assembly

consisting of representatives of the

people, elected on the basis of

adult franchise, shall be constituted

forthwith for the purpose of framing

a constitution for the State of

Jammu and Kashmir;

2. For the purpose of the said

elections the State shall be divided

into a number of territorial

constituencies, each containing a

population of 40,000 or as near

thereto as possible, and each

electing one member. A

delimitation Committee shall be set

up by the Government to make

recommendations as to the number

of constituencies and the limits of

each constituency.

3. Elections to the Constituent

Assembly shall be on the basis of

adult franchise, that is to say,

every person who is a State subject

of any class, is not less than

twenty-one years of age on the first

day of March, has been a resident

in the constituency for such period

as may be prescribed by the rules,

shall be entitled to register in the

electoral rolls of that constituency,

provided that any person who is of

unsound mind or has been so

declared by a competent court,

shall be disqualified for

registration;

4. The vote at the election shall

be direct and by secret ballot;

5. The Constituent Assembly shall

have power to act notwithstanding

 any vacancy of the Membership

thereof.

6. The Constituent Assembly shall

frame its own agenda and make

rules for the governing of its

procedure and the conduct of its

business;

The Government shall make

such rules and issue such

instructions and orders as may be

necessary to give effect to the

terms of this proclamation.”

That the Constituent Assembly of the

State of Jammu and Kashmir finally

adopted the Constitution on 17th day of

November, 1956.
XXIX. That while the Constituent Assembly

was making Constitution for the Jammu

and Kashmir, the Constitution of India

had already been made applicable from

January 26, 1950. Between 1st May,

1951 to 17th November, 1956 the

President of India passed several

Constitutional Application Orders.

These are;

i) C.O. 10 dated 26.01.1950 – The

Constitution (Application to Jammu

and Kashmir) Order, 1950.

ii) C.O. 39 dated 28.03.1952 - The

Constitution (Application to Jammu

and Kashmir) Order, 1952.

vi) C.O. 43 dated 15.11.1952 – The

Constitution (Application to Jammu

 and Kashmir) Second Amendment

Order, 1952.

vii) C.O. 44 dated 15.11.1952 – The

Constitution (Application to Jammu

and Kashmir) Order, 1952.

viii) C.O. 48 dated 14.05.1954 – The

Constitution (Application to Jammu

and Kashmir) Order, 1954.

That this order, amongst others,

recognized the position as it

emerged consequent to the

Resolutions passed by United

Nations. In its application to the

State Article 253 of the Constitution

of India provided as under:

“Provided that after the

commencement of the

Constitution (Application to
 Jammu and Kashmir) Order,

1954 no decision effecting

disposition of the State of

Jammu and Kashmir shall be

made by the Government of

India without the consent of

the Government of that State.”

This proviso confirms that the final

disposition of the State has yet to

take place and implicitly recognizes

the Resolutions of the United

Nations which were in place on

14.05.1954.

ix) C.O. 51 dated 11.02.1956 – The

Constitution (Application to Jammu

and Kashmir) Amendment Order,

1956.
 These were the Application Orders which were

passed during the period Constituent Assembly of

the State of Jammu and Kashmir was in session

making Constitution for the State.

XXX. That after the State adopted its own

Constitution further Application Orders

came to be issued. These are;

i) C.O. 56 dated 26.02.1958 – The

Constitution (Application to Jammu

and Kashmir) Second Amendment

Order, 1958.

ii) C.O. 57 dated 09.02.1959 – The

Constitution (Application to Jammu

and Kashmir) Amendment Order,

1959.

iii) C.O. 59 dated 23.04.1959 – The

Constitution (Application to Jammu

 and Kashmir) Second Amendment

Order, 1959.

iv) C.O. 60 dated 20.01.1960 – The

Constitution (Application to Jammu

and Kashmir) Amendment Order,

1960.

v) C.O. 61 dated 02.06.1960 – The

Constitution (Application to Jammu

and Kashmir) Second Amendment

Order, 1960.

vi) C.O. 62 dated 02.05.1961 – The

Constitution (Application to Jammu

and Kashmir) Amendment Order,

1961.

vii) C.O. 66 dated 25.09.1963 – The

Constitution (Application to Jammu

and Kashmir) Amendment Order,

1963.
viii) C.O. 69 dated 06.03.1964 – The

Constitution (Application to Jammu

and Kashmir) Amendment Order,

1964.

ix) C.O. 70 dated 28.09.1964 – The

Constitution (Application to Jammu

and Kashmir) Second Amendment

Order, 1964.

x) C.O. 71 dated 21.12.1964 – The

Constitution (Application to Jammu

and Kashmir) Third Amendment

Order, 1964.

That an amendment was carried out in

the Jammu and Kashmir Constitution

vide 6th Amendment Act, 1965 dated

10.04.1965. In terms of this

Amendment the expression “Sadar-i-

Riyasat” and “Prime Minister” were

substituted by the expression

“Governor” and “Chief Minister”. In

terms of this Amendment the

methodology,which had been adopted

by the “Constituent Assembly” of the

State of Jammu and Kashmir for

appointment of the “Sadar-i-Riyasat”,

was done away with and instead a new

mechanism for appointment of the

Governor was made. In terms of the

Amendment under the Constitution of

the State the Governor was to be

appointed directly by the President of

India. Other provision like oath etc. also

came to be provided under the 6th

Amendment.
It is submitted by the petitioners that

upto 10th April, 1965 the “Office of

Sadar-i-Riyasat” was in place and under

the Explanation appended to Article

370, the “Government of the State”

meant Sadar-i-Riyasat to be advised by

the Council of Ministers. After the

amendment in the State Constitution,

no corresponding amendment was

made in the Explanation to Article 370.

Thus the situation which arose as a

result of amendment is that in so far as

Article 370 is concerned it required

“consultation” or “concurrence” of the

Sadar-i-Riyasat to be advised by

Council of Ministers before Parliament

would acquire power to legislate and or

before any provision of the Constitution

of India, with or without “exceptions”

and “modifications” was extended to

the State. In these circumstances the

question for consideration is;

Whether in the absence of any

amendment in the Explanation to

Article 370, the expression “Sadar-i-

Riyasat” appearing in the Explanation

could be read as Governor?

The petitioners submit that since the

two Constitutions are different,

amendment made in one Constitution

cannot be read as an amendment

carried out in the other Constitution.

The legal effect of it is that all

Constitution (Application to Jammu and

Kashmir) Orders which have been

extended to the State of Jammu and

Kashmir after 10th April, 1965 are

inoperative and void because they have

been issued with the consultation/

concurrence of the Governor and not

Sadar-i-Riyasat.

As submitted elsewhere in this petition,

when Article 367 was extended to the

State under 1954 Constitutional

Application Order Clause 4 was added

to the said Article. Clause 4 added to

the said order provided as under:

“(4) For the purposes of this Constitution as it

applies in relation to the State of Jammu and

Kashmir:

(a) References to this Constitution or

to the provisions thereof shall be

 construed as references to the

Constitution or the provisions

thereof as applied in relation to the

said State;

(b) References to the Government of

the said State shall be construed as

including references to the Sadar-i-

Riyasat acting on the advice of his

Council of Ministers.

(c) References to a High Court shall

include references to the High

Court of Jammu and Kashmir.

(d) References to the Legislature or the

Legislative Assembly of the said

State shall be construed as

including references to the

Constituent Assembly of the said

State.
(e) References to the permanent

residents of the said State shall be

construed as meaning persons

who, before the commencement of

the Constitution (Application to

Jammu and Kashmir) Order, 1954

were recognized as State subjects

under the laws in force in the State

or who are recognized by any law

made by the Legislature of the

State as permanent residents of

the State; and

(f) References to the Rajpramukh shall

be construed as references to the

person for the time being

recognized by the President as the

Sadar-i-Riyasat of Jammu and

Kashmir and as including

 references to any person for the

time being recognized by the

President as being competent to

exercise the powers of Sadar-i-

Riyasat.”

That vide C.O. 56 the President of India

notified the Constitution (Application to

Jammu and Kashmir) Second

Amendment Order, 1958. In terms of

this order following changes were

made:

“a) For the word “Rajpramukh”, the

word “Governor” came to be

substituted.

b) Clause (c) came to be omitted and

clause (d) came to be re-lettered as

clause (c).
c) That clause (c) so re-lettered came

to be substituted in new clause (4)

of Article 367.

i) Sub clause (d) came to be omitted

and sub clause (e) and (f) came to

be re-lettered as sub clause (d) and

(e).

ii) In sub clause (e) for the word

“Rajpramukh” the word “Governor”

came to be substituted.”

The net effect of above is that the

President of India and the Government

of Jammu and Kashmir have by an

indirect process amended Article 370. It

is totally unconstitutional. It is further

submitted that Article 367 begins with

expression “unless the context

otherwise requires”, having regard to

 the nature and purposes, cause and

reason of incorporation of Article 370

the Constitution makers have

manifested their intention that Article

370 cannot be interpreted or amended

by an indirect process except by the

procedure provided by the Article itself.

It is, therefore, submitted that the

Presidential Notification added clause

(4) to Article 367 in effect has the effect

of amending Article 370 which

constitutionally impermissible.

XXXI. That after the Constitution was

adopted by the “Constituent Assembly”

of the State, further Constitutional

Orders came to be issued. These are;

a) C.O. 72 dated 17.05.1965 – The

Constitution (Application to Jammu

and Kashmir) Amendment Order,

1965.

b) C.O. 74 dated 24.11.1965 – The

Constitution (Application to Jammu

and Kashmir) Second Amendment

Order, 1965.

c) C.O. 75 dated 29.06.1966 – The

Constitution (Application to Jammu

and Kashmir) Amendment Order,

1966.

d) C.O. 76 dated 13.02.1967 called

The Constitution (Application to

Jammu and Kashmir) Amendment

Order, 1967.

e) C.O. 77 dated 05.05.1967 called

The Constitution (Application to

 Jammu and Kashmir) Second

Amendment Order, 1967.

f) C.O. 80 dated 26.12.1967 called

The Constitution (Application to

Jammu and Kashmir) Fourth

Amendment Order, 1967.

g) C.O. 83 dated 09.02.1968 called

The Constitution (Application to

Jammu and Kashmir) Amendment

Order, 1968.

h) C.O. 85 dated 17.02.1969 called

The Constitution (Application to

Jammu and Kashmir) Amendment

Order, 1969.

i) C.O. 86 dated 04.04.1969 called

The Constitution (Application to

Jammu and Kashmir) Second

Amendment Order, 1969.

j) C.O. 89 dated 07.09.1971 called

The Constitution (Application to

Jammu and Kashmir) Amendment

Order, 1971.

k) C.O. 90 dated 08.11.1971 called

The Constitution (Application to

Jammu and Kashmir) Second

Amendment Order, 1971.

l) C.O. 91 dated 23.12.1971 called

The Constitution (Application to

Jammu and Kashmir) Third

Amendment Order, 1971.

m) C.O. 92 dated 13.03.1972 called

The Constitution (Application to

Jammu and Kashmir) Amendment

Order, 1972.

n) C.O. 93 dated 23.05.1972 called

The Constitution (Application to

 Jammu and Kashmir) Second

Amendment Order, 1972.

o) C.O. 94 dated 01.08.1972 called

The Constitution (Application to

Jammu and Kashmir) Third

Amendment Order, 1972.

p) C.O. 95 dated 10.08.1972 called

The Constitution (Application to

Jammu and Kashmir) Fourth

Amendment Order, 1972.

q) C.O. 104 dated 25.05.1976 called

The Constitution (Application to

Jammu and Kashmir) Second

Amendment Order, 1976.

r) C.O. 105 dated 12.10.1976 called

The Constitution (Application to

Jammu and Kashmir) Third

Amendment Order, 1976.

s) C.O. 106 dated 31.12.1976 called

The Constitution (Application to

Jammu and Kashmir) Fourth

Amendment Order, 1976.

t) C.O. 108 dated 31.12.1977 called

The Constitution (Application to

Jammu and Kashmir) Amendment

Order, 1977.

u) C.O. 122 dated 04.06.1985 called

The Constitution (Application to

Jammu and Kashmir) Amendment

Order, 1985.

v) C.O. 142 dated 07.10.1989 called

The Constitution (Application to

Jammu and Kashmir) Scheduled

Tribes Order, 1989.

w) C.O. 160 dated 31.05.1995 called

The Constitution (Application to

 Jammu and Kashmir) Amendment

Order, 1995.

x) C.O. 162 called The Constitution

(Application to Jammu and

Kashmir) Amendment Order, 1996.

It is submitted that Constitution

Application Orders which were issued

by the President of India at the instance

of the Governor of the State either

during Governor’s Rule and or

President’s Rule were reportedly

challenged in various writ petitions

which are pending in the High Court of

Jammu and Kashmir.

XXXII. That some years back the Central

Government had constituted a

Commission known as
“SarkariaCommission on Center

State Relationship”. In Part-II of

Report the Commission dealt with

the State of Jammu and Kashmir.

When the Commission found that

the President of India had notified

Constitution (Application to Jammu

and Kashmir) Amendment Order,

1986 dated 30.07.1986, in terms of

which Article 249 was made

applicable to the State with the

“concurrence” of the Governor, the

Commission upon examination of

this issue observed as under:

“It is significant that on March 7,

1986 the Council of Ministers had

been dismissed, the State

Legislative Assembly had been put

 under suspended animation and

the Governor was functioning

under Section 92 of the State

Constitution and thus did not fulfill

the necessary requirement of the

Government of the State as defined

in the explanation (ii) of Article

370(1)(b) of the Constitution of

India and, therefore, the very

concurrence of the Government of

the State on which the aforesaid

1986 Order is founded being

unconstitutional the aforesaid 1986

Order is wholly ultra vires the

Constitution.”

The petitioners submit that under no

circumstances Governor of the State of Jammu

 and Kashmir can of his own, moreso when the

State is President’s Rule, give “concurrence” to

the Application of any Constitutional provision to

the State. It is wholly ultra vires.

XXXIII. Position of Governor during

President’s Rule:

1) The Governor, during President’s

Rule, can exercise no power either

under the Constitution or under any

other law of his own. Under the

Presidential Notification issued

under Article 356 of the

Constitution of India the President

of India assumed to himself all the

executive powers except those

which he cannot assume under the

Constitution. The President

becomes the Head of the executive

of a State.

The powers of the Legislature of a

State can be exercised by the

Parliament in the making of laws,

Article 357 of the Constitution

empowers the Parliament to enact

Delegation of Powers Act. As and

when such Act is enacted, the

Parliament may confer power to

legislate on the President. The

President is also authorized by the

Parliament to delegate his authority

to any other authority to be

specified by him in that behalf.

Under the Presidential Notification

the executive power of the State

and the delegation of power

 thereof can be exercised by the

Governor if the President specifies

him as an authority to exercise the

power. Under this Constitutional

arrangement the status and

position of the Governor is only

that of an “agent” acting for and on

behalf of the President of India. In

law any order issued by the

Governor or any act performed by

the Governor under the

Constitution or otherwise is that of

the President.

2) That the Legislature of the State of

Jammu and Kashmir has no role in

the working of Article 370. It means

that the State Legislature is not

competent to give any

“concurrence” to the President in

the matter of Application of the

Central Laws or the Constitution of

India. The specified authority under

Article 370 can give such

“concurrence” or can be

“consulted” only when the

specified authority is advised to do

so by the Council of Ministers. The

petitioners submit that the

Governor, even if powers are

delegated to him by the President

of India cannot give any

“concurrence” or “consultation” for

two reasons;

(i) That the Parliament of India

and the President of India, as

the donor of the power, do not

 have the power of giving

“concurrence” or

“consultation” under Article

370. That being so no power

vests in the Governor to give

any “concurrence”.

(ii) That the Governor, before

giving “concurrence” is to seek

advice of the Council of

Ministers. It means that in the

absence of Council of Ministers

no “concurrence” or

“consultation” can be given by

the Governor.

It is, therefore, the contention of

the petitioners that the Governor of

the State of Jammu and Kashmir,

during President’s Rule, had no

 constitutional or legal jurisdiction to

give “concurrence” and that under

law his status is that of an “agent”

discharging his duties for and on

behalf of the President and under

his overall supervisory jurisdiction.

The “concurrence” mention of

which is made in C.O. 272, having

been given by the Governor is void

ab initio.

XXXIV. Federalism:

That different views have been

expressed by this Hon’ble court with

regard to the concept of federalism.

The Hon’ble court has already declared

that federal structure under

Constitution of India is one of the basic

features of the Constitution. As to what

constitutes “federalism” the petitioners

seek consideration of this Hon’ble court

to the decision delivered in S.R. Bomai

V/S Union of India – (1994) (3) SCC

1. In this decision delivered by Nine

learned Judges of this Hon’ble court,

parameters for determination of federal

structure were laid down. Some of the

learned Judges ruled;

a) That the word “federation” is not

mentioned in the Constitution.

b) Parliament has the power to alter

the boundaries of the States and or

to create new States under Article

2 and 3 of the Constitution.

c) The Union has extra ordinary power

of emergency under the

 Constitution under which it can

take over administration of a State.

d) Residuary powers under Article 248

and Entry 97 List-I vest in the

Parliament.

e) That the Parliament alone has the

power to amend the Constitution.

f) That the Central Government has

the power to issue directions.

g) Under Constitution of India there is

a concept of single citizenship.

h) That under the Constitution of India

an integrated judiciary has been

set up.

These factors show that the Constitution is not

“Federal”.
As against it the views of other learned Judges are

as follows:

i) That under Article 1 of the

Constitution the States are

constitutionally recognized units

and not merely administrative

divisions.

ii) That the principle of federalism is

dominant in the Constitution.

iii) It does not matter whether States

were independent before these

became part of the Federation.

iv) That the federal structure existed

under Government of India Act,

1935 and the Constituent Assembly

adopted federal structure for

Constitution of India.
v) That altering boundaries of States

is a breach of federal principal, if it

is done without their consent.

Whenever boundaries have been

altered these have been done

because the States have agitated

for change of boundaries and the

Parliament has not acted of its own.

vi) That the vesting of residuary

powers is not test for determination

of federalism.

vii) That the external sovereignty is not

relevant as it belongs to the Union

as a whole. It is sharing of internal

sovereignty which constitutes

federalism.
viii) Exclusive power of legislation in

respect of matters mentioned in

the State List establish Federation.

ix) Existence of emergency powers

vested in the Union do not dilute

principle of federalism. The power

to proclaim emergency on the

grounds of internal disturbance or

armed rebellion does not distract

from the principal of federalism.

x) Article 355 is not inconsistent with

Federal principle.

xi) Power of the Central Government

to give direction to State

Governments does not militate

against the principle of federalism.

xii) States have independent sources of

income and they also share income

 of the Center. States have plenary

powers and are sovereign in their

fields. States have independent

constitutional existence.

Constitution protects identity of the

States in their language and

culture. It is a promise of

Constitution. Every Sate is

constituent political unit.

The petitioners submit that the position of the

State of Jammu and Kashmir is different from

other States of India. It is distinctive and its broad

features are;

a) That the State has its own separate

Constitution in the same way as the

States have under Constitution of

United States of America.

b) That the Parliament has no power

of increasing or diminishing the

area of the State of Jammu and

Kashmir or alter its boundaries

unless the Bill intended to be

introduced, carries with it consent

of the Legislature of the State.

Explanation I and II of Article 3 of

the Constitution of India does not

apply to the State.

c) That under the Constitution of India

and the Constitution of Jammu and

Kashmir a person who is citizen of

India can also qualify

as“permanent resident of the State

of Jammu and Kashmir”and possess

certain rights and privileges which

 are not available to other citizens

of India.

d) That the residuary power under

Article 248 and Entry 97 vested in

the State Legislature and not in the

Union Parliament.

e) That no amendment carried out in

the Constitution of India would be

applicable to the State of Jammu

and Kashmir unless its application

was agreed to by the specified

authority under Article 370.

f) That the Constitution of India as

was applied to the State of Jammu

and Kashmir with “exceptions” and

“modifications” by the President of

India clearly protect residue of the

“State life” in accordance with the

 original intent of the Constitution

makers.

The petitioners, therefore, submit that

having regard to the special provision

in the Constitution of India (Article 370),

the State having its own separate

Constitution unlike other States in India

and the restricted application of

Constitutional provisions and the

Central Laws to the State, the position

of the State of Jammu and Kashmir is

akin to the position of the States under

Constitution of United States of

America.

XXXV. Basic Feature of the Constitution:

1) That the circumstances leading to

the execution of “Instrument of

Accession” coupled with making of

special provision under Article 370

in the Constitution of India for the

State of Jammu and Kashmir,

making of the Constitution of the

Jammu and Kashmir, non-

application of the provisions of the

Central Laws and of the

Constitution Application to the

State of Jammu and Kashmir except

in accordance with the procedure

prescribed by Article 370 followed

by Constitution Application Orders

clearly provided “Constitutional

autonomy” to the federating unit of

the State of Jammu and Kashmir.

The petitioners submit that the

“Constitutional Autonomy” is one of

 the basic and essential feature of

the Constitutional relationship

between the State and the Union.

2) That the constitutional provisions of

the Constitution of India clearly

safeguard the Constitutional

Autonomy of the State. There can

be no change in the constitutional

relationship between the State and

the Union.

3) That the separate and distinct

position of the State is not only the

outcome of fundamental

relationship between the two

States but is consistent with the

constitutional value in particular

federal principles.
 4) The petitioners maintain that

constitutional autonomy of the

State, being one of the basic

features of the constitutional

relationship between the Union and

the State, the same could not have

been altered on any basis

whatsoever.

XXXVI. Being aggrieved by the

impugned/provisions/orders/acts

mentioned hereinabove the

petitioner raises the following

question of law and grounds

amongst others.

8. QUESTIONS OF LAW:-
i) Whether Governor of the State of

Jammu and Kashmir represents

“Government of the State” within

the meaning of Article 370 when

the State is under Presidents Rule

under Article 356 of the

Constitution of India?

ii) Whether the Governor was the

specified and competent authority

to give concurrence to the issuance

of C.O. 272 under Article 370 of the

Constitution of India?

iii) Whether the Governor, as an agent

of the President and delegatee of

the power of the President was

competent in law to give

concurrence in the issuance of C.O.

272?
iv) Whether the Parliament of India or

the President of India had any

power to act as “Government of the

State” within the meaning of Article

370 and could validly delegate that

power, if there has been any

delegation?

v) Whether in the facts and

circumstances of the case the

President of India has acted both as

the authority to apply constitutional

provision of Constitution of India to

the State and has also acted as the

authority to give “concurrence” on

behalf of the Government of the

State under Article 370 of the

Constitution of India?
vi) Whether the Governor of the State

and the President of India had

constitutional authority to make

any amendment in Article 370 of

the Constitution?

vii) Whether Article 370, not having

been abrogated on the

recommendations of the

Constituent Assembly before

adoption of the Constitution of

Jammu and Kashmir, has become

“permanent” provision of the

Constitution of India

notwithstanding its placement in

Part XXI of the Constitution?

viii) Whether the President of India with

the “concurrence” of his agent

Governor of Jammu and Kashmir,

 could validly under the Constitution

supersede all Constitutional

Application Orders and apply

simultaneously all the provisions of

the Constitution of India to the

State?

ix) Whether the President of India had

any constitutional jurisdiction to

substitute the expression

“Constituent Assembly” with

“Legislative Assembly” and

empower Parliament under Article

357 to enact impugned Legislation?

x) Whether without any amendment

in Explanation of Article 370,

substituting the word “Sadar-i-

Riyasat” with “Governor”, despite

6th Amendment in the Constitution

 of Jammu and Kashmir Governor

could act under Article 370 more so

without aid and advice of the

Council of Ministers?

xi) Whether the impugned presidential

Notifications and the Legislation

are ultra vires the Constitution and

offend principle of federalism

between a federating unit and the

Union when the relationship was

rooted in “Instrument of Accession

and Article 370?

xii) Whether the State of Jammu and

Kashmir, after Instrument of

Accession but without any

Supplementary or Merger

Agreement, at any stage lost its

independent separate character as

 a political entity unlike the other

States of India which had lost their

“State life” and have completely

merged with the Union?

xiii) Whether the Parliament or

President of India had at any stage

delegated their authority, which

otherwise they had none, to the

Governor for purposes of giving

concurrence under Article 370?

xiv) Whether by application of the

provisions of the Constitution of

India including Article 368 the

President had lost his power under

Article 370 to amend Article 370?

xv) Whether consequent to the

impugned Presidential Notifications

the President of India has created a

 conflict between the power of the

Parliament to amend the

Constitution, which power has been

extended to the State under the

impugned Notifications and the

power of the President to apply

constitutional provisions with

“exceptions” and “modifications”

to the State which power President

possessed under Article 370 but

without application of Article 368 to

the State?

xvi) Whether the impugned Presidential

Notifications and the Legislation

have robbed the “permanent

residents” of the State of their

rights and privileges which they

possessed under the Constitution

 of India and the Constitution of

Jammuand Kashmir without any

authority of law?

xvii) Whether the impugned

Presidential Notifications and the

Legislation has created a conflict

between Constitution of India and

the Constitution of Jammu and

Kashmir to which Article 254 of the

Constitution has no application nor

one Constitution is subordinate to

the other each having been framed

within their respective

jurisdictions?

xviii) Whether the impugned

Presidential Notifications and the

Legislation are outcome of

constitutional fraud and are

 intended to impose political

ideology of the party in power in a

federating State, which State had

its own constitutional autonomy

and a distinct relationship with the

Union?

xix) Whether Article 370 is immune

from any amendment in view of the

special procedure prescribed by it

for its own abrogation and has thus

become permanent provision in the

Constitution of India and is one of

the basic features of the

Constitution in its relationship with

the State?

xx) Whether Article 356 and 357, upon

their imposition, control Article 370

and substitute Government of the

 State appearing in the

“Explanation” to Article 370 with

the Government of the State

appearing in Article 356 and 357 of

the Constitution of India?

9. That this writ petition is accordingly

filed, amongst others, on the following

grounds and seeks quashing of C.O.

272, C.O. 273 and the Jammu and

Kashmir (Reorganization) Act, 2019. All

these orders are questioned separately

hereinafter on the following grounds:-

G R O U N D S

Grounds of challenge to C.O. 272 dated

August 5, 2019.

i) That the said Constitution

Application Order notified by the

 President of India on August 5,

2019 is void.

ii) That the said Constitution

Application Order has been issued

by the President “with the

concurrence of the Government of

Jammu and Kashmir”. It is

submitted that the State of Jammu

and Kashmir on 5th August, 2019

was under President’s Rule under

Article 346 of the Constitution. The

Governor of the State had no

constitutional jurisdiction to act on

behalf of Government of Jammu

and Kashmir under Article 370. The

Governor, as an agent of the

President, had no jurisdiction to

give “concurrence”.
iii) That in terms of the said Order,

Constitution (Application to Jammu

and Kashmir) Order 1954 has been

superseded. It is submitted that

C.O. 272 could not validly in law

supersede Constitution Application

Order of 1954.

iv) That under C.O. 272 all the

provisions of the Constitution of

India as amended from time to

time have been applied to the

State of Jammu and Kashmir. It is

submitted that the President of

India has no constitutional

jurisdiction, based on the

concurrence of the Governor of

Jammu and Kashmir, to apply all

 the provisions of Constitution of

India to the State.

v) That among the provisions which

have been applied to the State of

Jammu and Kashmir from the

Constitution of India, “exception”

and “modification” has only been

made in Article 367.

That Article 367 of the Constitution

of India deals with interpretation. It

reads as under:

“367. Interpretation.

(1) Unless the context otherwise

requires, the General Clauses Act,

1897, shall, subject to any

adaptations and modifications that

may be made therein under article

372 apply for the interpretation of

this Constitution as it applies for

the interpretation of an Act of the

Legislature of the Dominion of

India.

(2) Any reference in this

Constitution to Acts or laws of, or

made by, Parliament, or to Acts or

laws of, or made by, the Legislature

of a State, shall be construed as

including a reference to an

Ordinance made by the President

or, to an Ordinance made by a

Governor, as the case may be.

(3) For the purposes of this

Constitution “foreign State” means

any State other than India.

Provided that, subject to the

provisions of any law made by

Parliament, the President may by

order declare any State not to be a

foreign State for such purposes as

may be specified in the order.

(4) For the purposes of this

Constitution as it applies in relation

to the State of Jammu and

Kashmir:-

(a) references to this Constitution

or, to the provisions thereof

shall be construed as

references to the Constitution

or the provisions thereof as

applied in relation to the said

State.

(aa) references to the person for

the time being recognized by

the President on the

 recommendation of the

Legislative Assembly of the

State as the Sadar-i-Riyasat of

Jammu and Kashmir, acting on

the advice3 of the Council of

Ministers of the State for the

time being in office, shall be

construed as references to the

Governor of Jammu and

Kashmir.

(b) references to the Government

of the said State shall be

construed as including

references to the Governor of

Jammu and Kashmir acting on

the advice of his Council of

Ministers.
 Provided that in respect of any

period prior to the 10th day of

April, 1965 such references

shall be construed as including

references to the Sadar-i-

Riyasat acting on the advice of

the Council of Ministers.

(c) References to a High Court

shall include references to the

High Court of Jammu and

Kashmir.

(d) `References to the permanent

residents of the said State shall

be construed as meaning

persons who, before the

commencement of the

Constitution (Application to

Jammu and Kashmir) Order,

 1954 were recognized as State

subjects under the laws in

force in the State or who are

recognized by any law made by

the Legislature of the State as

permanent residents of the

State; and

(e) References to the Governor

shall include references to the

Governor of Jammu and

Kashmir.

Provided that in respect of any

period prior to the 10th day of April,

1965, such references shall be

construed as references to the

person recognized by the President

as the Sadar-i-Riyasat of Jammu

and Kashmir and as including

 references to any person

recognized by the President as

being competent to exercise the

powers of the Government.”

In the said Article sub clause (4)

has been added under C.O. 272.

The provisions of General Clauses

Act, 1897 have been made

applicable to the provisions of the

Constitution as have been applied

in relation to the State of Jammu

and Kashmir.

vi) That C.O. 272 applies all the

provisions of Constitution of India

to the State. It is submitted that the

said order has the effect of bringing

the State of Jammu and Kashmir at

par with other States of India. It is

submitted that it is impermissible

and constitutionally invalid to do

so.

All the erstwhile Princely States had

to execute “Merger Agreements” in

order to get absorbed in the Union.

As already stated the State of

Jammu and Kashmir did not

execute any such agreement. Thus

the residual sovereign powers

retained by the State cannot be

taken away by adopting a

mechanism unknown to the

Constitution. There can be no

merger of the State with the Union

because the Constitutional

 Autonomy of the State is protected

and insulated from any

Constitutional amendment. The

complete erosion of the

Constitutional Autonomy of the

State cannot be done by any

Constitutional authority. Ending

“State life” is a sovereign act and it

cannot be tampered with by any

Constitutional authority how so

ever high he may be.

vii) That under the impugned

Notification there has been

wholesale application of all the

provisions of the Constitution of

India. It is clearly impermissible

under Article 370.

viii) That amendment in proviso to

clause 3 of Article 370 in terms of

the impugned Notification is

patently ultra vires the

Constitution. Article 370 excludes

application of Article 368. There is

no provision in the Constitution of

India except Article 368 under

which amendments can be made.

Article 370 provides its own

procedure for amendment and,

therefore, is an exception to the

Constitutional provisions. The

Constitution framers were aware

that Article 370 has been placed in

the Constitution of India and,

therefore, ordinarily it could also be

amended unde4r Article 368. But

the Constitutional makers in

accordance with their original

intent, and for the reasons already

spelt out, excluded General

Provisions of amendment to Article

370. A separate procedure was,

therefore, devised.

The impugned order amends Article

370 in violation of the mandatory

requirements of Article 370. The

amendment is patently void.

Neither the Governor in the

circumstances nor the President of

India under Article 356 or 357 nor

the Parliament could acquire any

constitutional power to make

amendment in Article 370. It is

interesting that on the one hand all

 the provisions of the Constitution of

India have been applied including

Article 368 and on the other hand

amendment has been made in

Article 370 in terms of Clause 1 of

Article 370. The amendment is

patently unconstitutional.

The petitioners, therefore, submit

that C.O. 272 dated 5th August,

2019 is void ab initio, on grounds,

amongst others, for lack of

constitutional power.

Grounds of challenge to C.O. 273 dated

August 6, 2019.

ix) That this Presidential Order has

been issued “on the

recommendations of Parliament”. It

appears to the petitioners that after

carrying out impermissible

amendment in Clause 3 of Article

370 in terms of C.O. 272, and

having regard to Article 356 and

357, the Parliament proceeded on

the assumption that it has the legal

authority to make

recommendations to the President

to do what has been notified in

terms of Notification C.O.273.

It is submitted by the petitioners

that since the amendment carried

out in Article 370 in terms of C.O.

272 is void consequently C.O. 273

is also void. The Parliament of India

has no jurisdiction to make any

recommendation to the President

under Article 370. The Parliament is

not “Constituent Assembly” of

State of Jammu and Kashmir. The

Parliament of India did not make

Constitution of Jammu and

Kashmir. It was done by a separate

distinct “Constituent Assembly”.

The Parliament of India had no

constituent power to act under

Article 370. The recommendation

of the Parliament to the President

for making Article 370 inoperative

was patently impermissible and

beyond the jurisdiction of the

Parliament. The President of India

also acted mechanically in

accepting the recommendations of

the Parliament.
x) That the petitioners say that C.O.

273 is a void order.

xi) That the petitioners submit that the

said impugned Notification has two

parts;

i) That in terms of this

Notification it has been

declared by the President, on

the recommendations of

Parliament, that as from 6th

August, 2019 all clauses of

Article 370 shall be ceased to

be operative.

ii) Article 370 has been redrafted.

In terms of the new Article 370,

once again it has been stated

that all the provisions of

Constitution of India, as
 amended from time to time

shall apply to the State of

Jammu and Kashmir without

any modification or exception

notwithstanding anything

contained in Article 152 or

Article 308. All the previous

laws, documents, judgments

etc. having force of law have

been put at naught including

“Instrument of Accession”.

It is the contention of the

petitioners that once the

“Instrument of Accession” has been

put at naught, there exists no

relationship between the State and

Union of India. It is further

contended by the petitioners that

the Union of India is primarily and

fundamentally based on

“Instrument of Accession” and

“Merged Agreements” In the case

of States other than Jammu and

Kashmir, all the federating States

have lost their “State life”. But in

the case of State of Jammu and

Kashmir if the basic “Instrument of

Accession” is taken out of the

purview of the Constitution, as the

impugned Notification does,

nothing survives in the relationship

either political or constitutional. It

appears to the petitioners that the

impugned Notification has

dismembered State of Jammu and

Kashmir from the Union. If that be

the legal effect of C.O. 273 and the

provisions of Article 363 having

been excluded, no authority or

power exists in the Union as on

date. The Presidential proclamation

under Article 356 clearly becomes

inoperative. The State of Jammu

and Kashmir has its own

Constitution and, therefore, it is

that Constitution which can

regulate the affairs in the State

without any relationship with the

Union. It is further submitted by the

petitioners that the Federal Union

cannot extend its Constitution to a

separate independent State

without “accession”.
xii) That the petitioners submit that a

conjoint reading of “Instrument of

Accession”, Article 370,

Constitution Application Orders,

C.O. 272 and 273 all lead to the

conclusion that the way Governor

of the State of Jammu and Kashmir,

Central Government, Parliament of

India and the President of India

have acted, the State has suffered

and the rule of law has been

thrown to winds.

Grounds of challenge to Jammu and Kashmir (Re-

Organization) Act, 2019.

xiii) This Legislation has bifurcated the

State. It is to come into force on

31st October, 2019. The

Parliamentary Legislation is void

because the Parliament had no

power to bifurcate the State and

reduce it to the status of a “Union

Territory”. The Parliament has

assumed jurisdiction only on the

basis of C.O. 272 and 273. Once

these two Presidential Notifications

are bad in law and void, no power

vests in the Parliament to enact the

impugned Legislation. The integrity

of the State and its boundaries are

protected under the Constitution.

Part of the State which is with

Pakistan and part with China are

also protected under the

Constitution. The petitioners submit

that the impugned Legislation

 cannot be enforced in the State for

the aforesaid reasons.

xiv) That under the Presidential Notification

GSR 1223 (E) dated 19.12.2018 the

President of India assumed to himself;

i) All the functions of the Government

of the State;

ii) All the powers vested in or

exercisable by the Governor of the

State under the Constitution and

the State Constitution;

xv) In addition to it the President of

India also declared that the powers

of the Legislature of the State shall

be exercisable by or under the

authority of Parliament.
The President of India also made

incidental and consequential provisions.

These are;

i) That the President of India

assumed to himself all the powers

and declared that it shall be lawful

for the President to act to such

extent as the President may deem

fit through the Governor of the

State.

ii) The President of India also

suspended the following provisions

of the State Constitution:

a) First proviso to Article 3 of the

Constitution;

b) Second proviso to Article 3;

c) Clause 2 of Article 151 of the

Constitution;
d) Section 35 to 41 (both

inclusive);

e) Section 43 to the extent it

related to allocation of

business;

f) Section 44 sub section (1) and

clause (1) of sub section (2) of

Section 53, 54, 55, 56, 57,

Clause (b) and (c) of Section 58

and the first proviso therein.

g) Section 59, Section 60 sub

section (2) Section 61 (clause

(c));

h) First proviso to section 58 and

to Section 60;

i) Section 65, 66, 67, 71, 72;

j) Sections 74, 75 and 76;

 k) Sub section (3) and (4) of

Section 77;

l) Sections 85 to 88 (both

inclusive); and

m) Section 147.

xvi) For the President also directed that

any reference in the Constitution

and the State Constitution to the

Governor shall, in relation to the

said State, be construed as

reference to the President and any

reference made to the Legislature

of the State shall mean reference

to the Parliament. It was further

directed that reference in Section

91 of the State Constitution to the

Governor and to the Legislature of

the State or the house thereof shall

 be construed as reference to the

President and to Parliament or to

the house thereof respectively.

xvii) Because the President also

assumed to himself the powers

under sub section (1) of Section 26,

Sections 27 to 31, Section 122,

Section 143 and Paragraph 1 to 8

of the Second Schedule of the

Constitution of the State.

xviii)Because the President also

directed that any reference made

in the Constitution or in the State

Constitution to Acts or Laws made

by the Legislature of the State shall

be construed as including a

reference made by Parliament. The

 provisions of General Clauses Act of

Jammu and Kashmir werealso

directed to apply to such Acts.

xix) For that vide another Order GSR

1224 (E) dated 09.12.2018 the

President also directed that all the

functions of the Government of the

State of Jammu and Kashmir, which

have been assumed by the

President under the proclamation,

shall, subject to the supervision,

direction and control of the

President be exercisable by the

Governor of the said State.

xx) Because it is thus obvious that as a

result of the order of proclamation

and the order of delegation the

President of India assumed to

 himself all the powers and the

Governor of the State acted as the

“delegatee” of those powers, acting

for and on behalf of the President

of India and subject to the

supervision and control. These

orders leave no doubt that the

Governor of Jammu and Kashmir

enjoyed no independent power as

Government but only acted as

“delegatee” of the President.

xxi) For it is submitted that though the

President could not assumed to

himself the power of the

Government of the State

contemplated by Article 370 but

assuming, without admitting, that

the President of India under the

 proclamation could do so, even

then giving of concurrence by the

Governor as the “agent” of the

President by virtue of the order of

delegation is the concurrence of

the President to his own self. On

this ground also impugned

Notifications and the Legislation is

void.

10. That the petitioners have not filed any

other Petition in any High Court or

Hon’ble Supreme Court of India on the

subject matter of the instant petition.

11. P R A Y E R

It is, therefore, most respectively prayed

that this Hon’ble court may graciously be

pleased to:
1. Issue appropriate writ direction or

order and declare Presidential

Order GSR 551 (E) C.O. 272

unconstitutional, inoperative and

void.

2. Issue appropriate writ direction or

order declaring Presidential Order

GSR 562 (E) C.O. 273 as

unconstitutional, inoperative and

void.

3. Issue appropriate writ direction or

order declaring the Jammu and

Kashmir (Re-Organization) Act,

2019 unconstitutional, void and

inoperative.

4. Pass any other writ direction or

order or declaration that this

Hon’ble court may deem fit in the

 facts and circumstances of the case

and in the interests of justice.

For this act of kindness the petitioners shall ever pray.

Drawn by Filed By:

Sanjay K Chadha (Adv)

Bilal Ahmad Wani (Adv)

Settled By

Zaffar .A.Shah ( Sr Adv)

(D.K. Sinha)
A DVOCATE FOR THE
PETITIONER
Drawn on: 27 09.2019

Filed on: 30.09.2019

IN SUPREME COURT OF INDIA

EXTRA ORDINARY ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO............. OF 2019
(Public Interest Litigation)

IN THE MATTER OF:-

JAMMU AND KASHMIR
HIGH COURT BAR ASSOCIATION,
SRINAGAR ....PETITI
ONER
VERSUS
UNION OF INDIA & ORS.
.....RESPONDENTS

AFFIDAVIT

I, Adil Asmi S/o Ghulam Hassan Asmi, aged about ___

years, Office at/of Joint Secretary, Jammu and Kashmir

High Court Bar Association, High Court of J & K at Srinagar,

City and District-Srinagar, Jammu & Kashmir presently at

New Delhi do hereby solemnly affirm and state as under:-

1. That I am joint secretary of the Jammu and Kashmir

High Court Bar Association, Srinagar and duly

authorized and as such fully conversant with the

facts and circumstances of the present case and

hence, competent to swear this affidavit.

2. That I have read and understood the contents of the

Writ Petition (Page____to____) and Synopsis and List

of dates consisting pages ........ to ......., and I.A (s)

have understood the contents thereof. The facts

stated therein are true and correct to the best of my

knowledge and belief and nothing material is

concealed therefrom based on the record of the case.

3. That the Annexure(s) annexed with this petition are

true and correct copies of their respective originals.

DEPONENT

VERIFICATION

Verified at New Delhi on this the 30 th day of

Sept, 2019 I, above named deponent do hereby

verify, that the contents of the above affidavit are

true and correct to the best of my knowledge based

on records. No part of it is false and nothing material

has been concealed there from.

DEPONENT

IN SUPREME COURT OF INDIA

EXTRA ORDINARY ORIGINAL JURISDICTION

I.A. No..............of 2019

IN
WRIT PETITION (CIVIL) NO............. OF 2019

IN THE MATTER OF:-

Jammu & Kashmir High

Court Bar Association, Srinagar … Petitioner
Versus
Union of India & Ors … Respondents

APPLICATION FOR HEARING/ CLUBBING OF THE

PRESENT MATTER WITH SIMILAR MATTERS I.E. WRIT
PETITION (C) No. 1013of 2019, etc.

To,
The Hon'ble Chief Justice of India
and his companion judges of the
Hon'ble Supreme Court of India

THE HUMBLE APPLICATION OF THE PETITIONER ABOVE

NAMED MOST RESPECTFULLY SHOWETH:-

1. That the petitioner is Jammu & Kashmir

High court Bar association through its

joint secretary have preferred this petition

under article 32 of the constitution of

India in the nature of Public Interest

Litigation challenging the constitutional

validity of the Presidential Order bearing

GSR. 551 (E) (C.O. 272), Presidential

Order bearing GSR 562(E) (C.O.273), and

the Jammu and Kashmir (Reorganization)

 Act of 2019 (Together impugned

order/provisions/Act).

2. That the brief facts already mentioned in

the writ petition and the same are not

repeating therein for the sake of brevity

and may kindly be read as part and parcel

of this application.

3. That the petitioner seeks clubbing/hearing

the instant writ petition with Writ Petition

(Civil) No. 1013/2019 (PIL) pending before

this Hon'ble Court (Constitution Bench), as

the subject matter of challenge in the

instant petition and in Writ Petition (Civil)

No. 1013/2019 is same and other

connected PIL Writ Petition (C)

No.1048/2019, 1068/2019, etc.

4. The Application is bonafide and in the interest

of Justice
 PRAYER

It is therefore most respectfully prayed

that this Hon'ble Court may graciously be

pleased to:-

a) allow the application for clubbing/tagging

the present matter with other similar Writ

Petition (C) No.1013 of 2019, pending before

this Hon'ble Court and;

b) pass such and further order/s this Hon'ble

Court may deemed fit and proper in the

interest of justice.

Filed by

DHARMENDRA KUMAR SINHA

ADVOCATE FOR PETITIONER
Filed on: 30.09.2019
 IMPUGNE
D

THE GAZETTE OF INDIA EXDTRAORDINARY

MINISTRY OF LAW AND JUSTICE

(Legislative Department)

NOTIFICATION

New Delhi, the 6th August, 2019

G.S.R 562 (E)- The following Declaration made by the

President is notified for general information:-

DECLARATION UNDER ARTICLE 370(3) OF THE

CONSTITUTION

:C.O. 273”

In exercise of the powers conferred by clause

(3) of Article 370 read with clause (1) of article 370 of
the Constitution of India, the President, on the
recommendation of Parliament, is pleased to declare
that, as from the 6th August, 2019, all clause of the
said article 370 shall cease to be operative except
the following which shall read as under, namely.-

“370. All provisions of this Constitution, as

amended from time to time, without any modification
or exceptions, shall apply to the State of Jammu and
Kashmir notwithstanding anything contrary contained
in article 152 or article 308 or any other article of this
Constitution or any other provision of the constitution
of Jammu and Kashmir or any law, document,
judgment, ordinance, order, by-law, rule, regulation,
notification, custom or usage having the force of law
in the territory of India, or any other instrument,
treaty or agreement as envisaged under article 363
or otherwise.”

RAM NATH KOVIND

President

(F.No.19(3)/2019-Leg.1)

Dr. G. Narayana Raju, Secy

//TC//

IMPUGNED
 THE GAZETTE OF INDIA EXDTRAORDINARY

MINISTRY OF LAW AND JUSTICE

(Legislative Department)

NOTIFICATION

New Delhi, the 5th August, 2019

G.S.R 551 (E)- The following order made by the President

is

published for general information:-

THE CONSTITUTION (APPLICATION TO JAMMU AND

KASHMIR) ORDER, 2019

:C.O. 272”

In exercise of the powers conferred by clause (1) of

article 370 of the Constitution, the President, with the
concurrence of the Government of State of Jammu and
Kashmir, is pleased to make the following order:-

1. (1) This order may be called the Constitution

(Application to Jammu and Kashmir) order, 2019.

(2) It shall come into force at once, and shall thereupon

supersede the Constitution (Application to Jammu
and Kashmir) order, 1954 as amended from time to
time.

2. All the provisions of the Constitution, as amended

from time to time, shall apply in relation to the State
of Jammu and Kashmir and the exceptions and
modification subject to which they shall so apply shall
be as follows:-
To article 367, there shall be added the following
clause, namely:-

“(4) For the purpose of this Constitution as it applies

in relation to the State of Jammu and Kashmir-

(a) Reference to this Constitution or to the

provisions thereof shall be construed as
references to the constitution or the provisions
thereof as applied in relation to the said state;

(b) Reference to the persons for the being

recognized by the President on the
recommendation of the Legislative Assembly of
the State as the Sadar-i-Riyasat of Jammu and
Kashmir, acting on the advice of the Council of
Ministers of the sate for the time being in office,
shall be construed as reference to the Governor
of Jammu and Kashmir.

(c) Reference to the Government of the said State

shall be construed as including reference to the
Governor of Jammu and Kashmir acting on the
advice of his Council of Ministers; and

(d) In proviso to Clause (3) of article 370 of this

Constitution, the expression “Constituent
Assembly of the State referred to in clause (2)”
shall read “Legislative Assembly of the State”.

RAM NATH KOVIND

President
 (F.No.19(2)/2019-Leg.1)

Dr. G. Narayana Raju, Secy

//TC//