A year & counting — clock ticking, but SC verdict yet awaited on over 20 pleas on Article 370 scrapping

It has been much over a year since J&K was stripped of its special status and split into two union territories. The first petition against the move was filed 9 August 2019.

A file photo of Indian Army soldiers on a patrol near Dal Lake in Jammu and Kashmir | Representational image | Praveen Jain | ThePrint

New Delhi: “The Supreme Court can always turn the clock back.”

A five-judge Constitution bench of the Supreme Court said this on 1 October last year as it took up a batch of 23 petitions that sought to question the constitutional validity of the J&K Reorganisation Act 2019, which split the erstwhile state into two union territories, and the Modi government’s decision to scrap Article 370, which gave special status to J&K.

The court’s statement was an attempt to pacify the petitioners when they resisted its order to grant four weeks to both the central government and the J&K administration to file a detailed response to the pleas.

They demanded an immediate stay on the operation of some of the provisions of the Act that would come into force on 31 October 2019 — the day the split became official and the union territories came into being. 

Their concern was that the hearing in the top court would either be rendered infructuous or just an academic exercise once the law becomes operational.

The fears then expressed by the petitioners seem to be proving true, with the top court having last heard the matter on 2 March 2020, when it held there was no need to refer the dispute to a larger bench of seven judges.

Between that day and today, the government has taken many steps to give further effect to the J&K Reorganisation Act 2019. 

While the matter remains pending, a host of administrative, legislative and executive changes have been implemented in the two UTs of J&K and Ladakh. 

These include a change in domicile rules that allow those who meet certain conditions to apply for government jobs and scholarships, and permitting non-residents to own land in the UTs — all these were earlier reserved for permanent residents, as identified by the state legislature. 

Advocate Shadan Farasat, representing one of the petitioners, said the moot question facing the court today is how far it can turn the clock back.

“With the vast number of changes the government is making in the fundamentals of J&K, it is absolutely essential that the SC hears the pending petitions immediately,” he said.

What do the petitions say?

The overarching changes that took root in Jammu & Kashmir last year were brought through different instruments of law: A resolution moved by the government, a presidential order, and two Acts.

These are: The ‘Resolution to Repeal Article 370 of the Constitution’, the ‘Jammu and Kashmir (Reorganisation) Act, 2019’, the ‘Constitution (Application to Jammu and Kashmir) Order, 2019’, and the ‘Jammu & Kashmir Reservation (2nd Amendment) Act, 2019’. 

These were passed between 5 August and 6 August 2019. With this, not only was J&K not a state anymore, its special status was withdrawn, its autonomy dissolved, and the Indian Constitution extended to it in its entirety. 

The reservation Act was subsequently withdrawn because, the central government said, the quota it sought to assure economically disadvantaged people was already provided for under the reorganisation Act. 

The first petition, seeking to challenge the presidential order that notified the J&K (Reorganisation) Act, was filed on 9 August 2019.

A spate of petitions followed — from Members of Parliament of the J&K-based National Conference, residents of Kashmir, and former bureaucrats and individual organisations.

The challenge was on multiple grounds.

Broadly, the petitions claim the J&K (Reorganisation) Act, 2019 violated the basic structure of the Constitution and caused irrevocable damage to India’s federal structure. 

According to an apex court judgment — Kesavananda Bharati case from the 1970s — the basic structure of the Constitution is beyond Parliament’s powers to alter.

The petitioners have assailed the procedure adopted to read down Article 370. According to them, the President used Article 367, an interpretative provision in the Constitution, to make substitutions for the terms “government of the said state” and “constituent assembly of Jammu and Kashmir” in Article 370.

With the order, these terms were to be read as “governor of J&K acting on the advice of his Council of Ministers”, and the “legislative assembly of the state”, respectively.

This substitution or alteration to Article 370, the petitioners claim, cannot be done using powers granted under the provision.

Since the presidential order was issued during President’s rule in J&K, the petitioners said, the concurrence of the governor taken to make changes to Article 370 amounted to the central government taking approval from itself to remove the state’s special status and reorganise it into UTs.

‘Article 370 gave rise to military and terrorism’

On 28 August 2019, the court issued notice on 10 connected matters and directed the registry to place papers before the Chief Justice of India (CJI) for the constitution of a five-judge bench to hear the matters in the first week of October that year. It allowed contesting parties to exchange pleadings in the meantime.

When a five-judge bench led by Justice N.V. Ramana heard the matter on 1 October, some more petitions got added to the list. Both the central government and the union territory of J&K were given four weeks to file their response, just a couple of days before the Reorganisation Act was to kick in.

Refusing to stay the law, the SC had then remarked that it “can turn back the clock if we decided in your favour”.

The same day, the bench ordered the registry not to entertain any fresh writ petition on the issue and fixed 4 November as the next date of hearing.

The central government took more than four weeks to explain its side. On 9 November, the Union Home Ministry furnished an affidavit, defending the nullification of Article 370, saying the special provisions needed to be removed because they gave rise to militancy and terrorism by creating a “separatist mindset among the people”.

The removal of Article 370, they said, would act as a catalyst that enables the region to achieve its “development potential to the fullest”, and provide people the best possible standard of living in an “atmosphere of amity and tranquillity”.

“Article 370 prevented the people of Jammu and Kashmir from receiving benefits of evolving legal systems and even the amendments and other laws of Parliament,” it added.

Five-judge or seven-judge bench? 

The arguments on merits commenced on 10 December with senior advocate Raju Ramachandran advancing submissions on behalf of one of the petitioners.

While deliberations were on, a suggestion was made by the petitioners to refer the dispute to a larger bench of seven judges. This was sought on the ground that two judgments of the apex court delivered by different five-judge benches on Article 370 — Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat Prakash versus Jammu and Kashmir in 1970 — were in direct conflict with each other and the current bench of five judges could, therefore, not hear the issue.

A dispute is usually referred to a larger bench if there are conflicting judgments by two benches of the same strength. 

In the case of Prem Nath Kaul (1959), the bench had held that Article 370 was temporary in nature. However, in the Sampat Prakash (1970) case, another bench had recognised Article 370 as a permanent provision, giving perennial power to the President to regulate the relationship between the Union and the state.

The central government opposed the idea of the matter being referred to a larger bench and denied that there was any conflict between the two judgments. It said the two judgments were not relatable and dealt with separate issues. The sovereignty of J&K enabled by Article 370 was temporary, it said.

The court heard arguments on five dates — 11 and 12 December 2019 and 21, 22 and 23 January 2020 — before it reserved its verdict on the question of reference.

More than a month later, on 2 March 2020, the bench refused to accept the petitioners’ contention, and said the five-judge bench was the appropriate one to hear the matter.

It added that the schedule of hearing on the batch of petitions would depend on the hearing by a nine-judge Constitution bench in the Sabarimala case, which was expected to start after the Holi break.

However, the top court’s functioning got restricted to virtual hearings because of Covid-19 and the ensuing nationwide lockdown.

Even though 11 cases being dealt with by Constitution benches were heard and decided through virtual hearings, the 23 petitions challenging the reading down of Article 370 never made it to this list.

‘Impugned law getting permanency’

On 27 October 2020, the central government notified two orders — the Union Territory of Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Third Order 2020 and the Jammu and Kashmir Reorganisation (Adaptation of State Laws) Fifth Order 2020 — to repeal 12 Acts and amend 14 land laws in the UT. 

Among other things, the notifications allowed non-residents to own immovable property in Jammu and Kashmir, and transfer of agricultural land for non-agricultural purposes, but only after a government permit.

Two applications were subsequently filed before the top court, seeking an early hearing of the petitions.

Advocate Shakir Shabir and Sajad Lone-led Jammu and Kashmir People’s Conference argued that despite petitions against the withdrawal of Article 370 being pending in the apex court, and the pandemic, the Modi government has brought in sweeping changes to laws that were only applicable to the erstwhile state of Jammu and Kashmir.

This, the pleas added, has impacted the rights of a large number of people staying there, including diluting safeguards available to them earlier as permanent residents.

According to the applicants, passage of time and pendency of the present issues — along with continuous enactments by the respondents — stand to risk giving permanency to the initial impugned order dated 5 August 2019, which has been challenged in several petitions. They also expressed concern over delayed hearing. The pleas are yet to be taken up.