Art 370 Hearings Pushed to 10 December, SC Refuses Interim Orders

Constitution Bench to hear matter on 14 November, after Centre and petitioners traded written arguments.

Supreme Court will begin hearing the Jammu & Kashmir constitutional challenges.

(Photo: Aroop Mishra/The Quint)

The Supreme Court on Thursday, 14 November, refused to pass any interim orders on the pleas in the cases challenging the abrogation of Article 370 and the reorganisation of Jammu and Kashmir into two Union Territories (the ‘Abrogation-Reorganisation Petitions’).

The judges said that passing any interim order might lead to a delay in the matter and the apex court would settle all the issues at one go after hearing all the parties. Some of the petitioners had suggested a stay on operation of some of the provisions of the J&K Reorganisation Act 2019, which bifurcated the former State, and came into force on 31 October.

The apex court was supposed to begin hearings in these cases on Thursday, but has now postponed this to 10 December, so that the Centre can respond to two new petitions which have been filed in the court questioning the constitutionality of the Centre’s actions since 5 August.

The five-judge Constitution Bench – comprising Justices NV Ramana, Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai and Surya Kant – had earlier put an embargo on fresh writ petitions on the abrogation of Article 370, but agreed to hear these two pleas as they have raised important issues.

The petitioners in the cases, including Kashmiri politicians and activists, submitted a rejoinder on Wednesday, 13 November, in which they have argued that the central government’s defence of its actions does not address the relevant constitutional issues.

Centre’s Affidavit Replying to Petitions

Back on 1 October, this Constitution Bench, which had been specially set up to hear these ten Abrogation-Reorganisation Petitions, had conducted a brief hearing in the case, during which the Centre requested four weeks’ time to respond.

The judges accordingly set 14 November as the date when arguments would begin, on the basis that this would give the petitioners sufficient time to file any rejoinders necessary to the government’s arguments and allow all written submissions to be exchanged.

The Centre eventually filed an affidavit replying to the petitions on 9 November, more than five weeks later. In this reply, the Modi government argued:

• Article 370 in its original form was a temporary provision.
• Article 370(1)(d) of the original provision (which was used to end J&K’s special status in a Presidential Order on 5 August) had been used on numerous occasions in the past to apply additional provisions of the Constitution to the erstwhile State.
• Article 370(3) – the provision which was used in a second Presidential Order to amend change the wording of Article 370 – had been used previously as well to change how the Article was interpreted. An example of this was how references to the Maharaja were construed as references to the ‘Sadar-e-Riyasat’.
• The different legal regime created using Article 370 (including Article 35A) was impeding the full integration of Jammu and Kashmir with the rest of India. Militants and separatist elements with foreign support benefited from the situation and encouraged secessionist tendencies. Residents of the former State were denied all the benefits guaranteed by the Constitution of India to other citizens of India.

• Article 35A was an obstacle to the socio-economic development of the erstwhile State, preventing investments and causing discrimination against women who married someone who was not a Permanent Resident of J&K.

• The erstwhile State of J&K was severely affected by terrorist violence.
• Because there had been a proclamation of Emergency in the former State of J&K since December 2018, the President could declare that legislative powers of the State could be exercised by Parliament. This meant that Parliament could take actions which under Article 370 in its original form were to be carried out by the State legislature – including approving the Presidential Orders in August 2019 that ended J&K’s special status and approving the Reorganisation Act which bifurcated it into two new Union Territories.
• Parliament has the power under Article 3 of the Constitution to reorganise existing States and carve out new States and Union Territories from them.

The Rejoinder by the Petitioners

“This is not a case about the desirability of Article 370 of the Indian Constitution, the policy arguments for or against its existence, or about the politics of the state of Jammu and Kashmir. Rather, the questions raised in the case are far simpler: can the central government, using the temporary cover of President’s Rule, effect a fundamental, permanent and irreversible alteration in the federal structure, without any participation by the elected representatives of the state, or for that matter, the participation of any of the institutions of the state duly established under the law?”

The petitioners raised this question in response to these arguments by the Centre, which, they claim, fail to engage with the core constitutional issues involved in this case.

According to them, the crux of the case is the federal structure of the Constitution of which Article 370 was a key part, and how alterations to this structure had to follow a process that involved the active participation of the State of J&K and its elected representatives.

They have also strongly contested the assertion of ‘indisputable facts’ by the Centre — for example, that Article 370 prevented integration of J&K with the rest of India and encouraged militancy – which are an important part of the government response and justification for its actions.

The petitioners have noted that separatists and militants could not use Article 370 to legally achieve any of their aims, which meant this had nothing to do with the legality of abrogating it. They have also provided data on poverty rates, health indicators, per capita net GDP and rural unemployment to contest claims that Jammu and Kashmir’s socio-economic development had been impeded by Article 370 and Article 35A.

The Centre’s claims about Article 35A being used to discriminate against women have also been specifically rebutted on the basis that the J&K High Court had already ruled against this. It was also pointed out that a challenge to Article 35A was already before the Supreme Court – any unconstitutional aspects of it could have been struck down by the apex court rather than removed by the Presidential Orders.

They also contest the claim that Article 370 was temporary, referring to the decisions of the Supreme Court in the Sampat Prakash case in 1968 and the SBI vs Santosh Gupta case in 2017.

Coming to the technical legal arguments, the petitioners have disputed the precedents cited by the Centre to say that Article 370 had already previously been used to modify itself. They have pointed out that these earlier amendments were meant for very different purposes, and only made “interpretive” changes – they did not substantively change the nature of Article 370, as the Centre had done in August.

The most important argument reiterated in the rejoinder (which they say the government has failed to address) is that major, irreversible changes to the federal structure and the application of the Constitution to a State cannot be undertaken by the Centre using the temporary powers granted to them during a time of President’s Rule.

The petitioners not only cite the famous Kesavananda Bharti ‘Basic Structure’ decision of the Indian Supreme Court to support this argument, but they also refer to the recent UK Supreme Court judgment on prorogation of their Parliament. The UK’s top court here said that exercise of state power is not unlimited in a constitutional system – the test is to see if “the exercise of power will have the effect of frustrating the constitutional principle at issue.”

Finally, the petitioners argue that the Centre has not addressed the arguments on unconstitutionality of the J&K Reorganisation Act 2019 – all they have done in their affidavit is assert without any evidence that Article 3 of the Constitution gives them the power to do what they’ve done.

On the contrary, the petitioners have noted that while Article 3 allows Parliament to create new States and UTs from existing States, it does not allow Parliament to convert an existing State into a Union Territory. Allowing the government’s interpretation would “permit a degradation” of federalism, which is part of the basic structure of the Constitution.

(With inputs from PTI.)