Express News Service
NEW DELHI: India’s top court will deliver its verdict on Monday regarding a series of petitions that challenge the Union government’s August 5, 2019 decision to revoke special status under Article 370 for the erstwhile state of Jammu and Kashmir (J&K) and its decision to bifurcate the state into two Union Territories—J&K and Ladakh.
According to the cause list for December 11 (Monday), uploaded on the apex court’s website, a five-judge Constitution bench headed by Chief Justice D Y Chandrachud would deliver the verdict. The other members of the bench are Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant.
Petitioners and lawyers who spoke with TNIE say they are quite hopeful that the top court’s verdict will be beneficial for them. Muzzafar Iqbal Khan, who is one of the petitioners, believes that the SC’s verdict will be a historical decision with long-term repercussions on Indian politics.
“The question before the Supreme Court would be the scope and sweep of the parliament’s power under Article 3 of the constitution to disintegrate a state. This question is going to have long-term repercussions for Indian politics. Since it is for the first time the Supreme Court will decide this issue, as never before in independent India, ever any state was reduced to union territory,” Khan told the TNIE.
OPINION | Awaiting the SC judgement on Article 370
The apex court had started the hearing on a day-to-day basis from August 2, 2023, for 16 tumultuous marathon hearings on a batch of 23 petitions until September 5, 2023, challenging the constitutional validity of changes made to Article 370, which gave special status to the erstwhile state of J&K and its reorganisation into Union Territories of J&K and Ladakh.
The five-judge Constitution bench of the apex court reserved its judgement on September 5, 2023, after hearing from all the parties, including the petitioners, the Government of India (respondent), and others.
During the hearing, the top court heard Attorney General (AG) R Venkataramani, Solicitor General (SG) Tushar Mehta, senior advocates Harish Salve, Rakesh Dwivedi, V Giri and others on behalf of the Centre and the intervenors defending the abrogation of the provisions of Article 370.
AG Venkataramani, and SG Mehta, the top and senior law officer of the Union of India (UOI), respectively, had submitted that the Centre had filed an additional affidavit setting out the central government’s view on post-notification development but added that it would have no bearing on the constitutional question and would not be relied upon.
Senior advocates, including Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Zaffar Shah and Dushyant Dave, had argued on behalf of the petitioners.
The lawyers had dwelt on various issues, including the constitutional validity of the Centre’s decision to abrogate the provisions of Article 370, the validity of the Jammu and Kashmir Reorganisation Act, which split the erstwhile state into two Union territories, challenges to the imposition of the governor’s rule in Jammu and Kashmir on June 20, 2018 and the imposition of the president’s rule on December 19, 2018 and its extension on July 3, 2019.
OPINION | Converting a state of India into a union territory
The Centre, which had defended its decision before the Apex Court to abrogate Article 370 from J&K, claimed that post-abrogation of special status, street violence, which was engineered and orchestrated by terrorists and secessionist networks, has now become a thing of the past.
“Since 2019, when Article 370 was abrogated, the entire region has witnessed an unprecedented era of peace, progress, brotherhood, and prosperity,” the Centre claimed through its affidavit, adding that the dilution was necessary to completely integrate J&K into the Union of India.
The government also informed the apex court that the Valley has prospered in the past four and a half years, after the abrogation of Article 370 in August 2019. SG Mehta said that the central government is always for national integration. “People’s betterment is being taken care of by the Centre with this abrogation of Article 370,” he said.
Mehta also claimed that youth, who used to be employed by terror groups inimical to India, are now employed gainfully after the abrogation of Article 370.
ALSO READ | Ladakh saw ‘unbelievable changes’ after Art 370 abrogation: Lt Governor
Opposing the submissions of the Centre, the petitioners had argued that Article 370 had assumed a permanent character as soon as the J&K Constituent Assembly dissolved in 1957, after the framing of the State Constitution.
Muzzafar Iqbal Khan said Article 368 (the Parliament’s power to amend the Constitution) did not apply to Article 370. He argued that it was not for the betterment of the people of J&K, and the abrogation of Article 370 should be quashed by the Apex Court.Khan further stated that Article 370 carved out an area for J&K that was not in sync with the general federal features of the Indian Constitution for the rest of the country. While Kashmir has gone through some tough times in history, with the abrogation of Article 370, it felt like Kashmir had been exiled from itself, Khan remarked.
During the hearing, the apex court had asked who can recommend the revocation of Article 370 in Jammu and Kashmir when no constituent Assembly, the concurrence of which is required before taking such a step, exists there.
The top court had also asked how can a provision (Article 370), which was specifically mentioned as temporary in the Constitution, become permanent after the tenure of the Jammu and Kashmir constituent Assembly came to an end in 1957.
Some of the petitioners opposing the repeal of Article 370 had argued that the provision could not have been abrogated as the term of the Jammu and Kashmir constituent Assembly ended in 1957 after it drafted the erstwhile state’s Constitution. With the constituent Assembly having become extinct, Article 370 acquired a permanent status, they had said.
ALSO READ | Hope SC delivers verdict in favour of people of J&K: Ghulam Nabi on Art 370
The Centre had argued that there was no “constitutional fraud” in annulling the provision that accorded the special status to the erstwhile state of Jammu and Kashmir.
The impending verdict on the extensively discussed case of the abrogation of Article 370 in Jammu and Kashmir carries added significance, considering the retirement of Justice Sanjay Kishan Kaul who had presided over the case.
Justice Kaul, the senior judge of the Supreme Court after CJI Chandrachud, will retire on December 25, after serving from February 17, 2017, for a period of six years, 10 months, and 10 days.
Notably, historical patterns reveal that the Supreme Court refrains from issuing verdicts or orders during vacation periods, be it summer or winter.
However, this trend is set to be bucked with the retirement of Justice Kaul as it is customary for an Apex Court judge who presides over a case to render judgment before retirement. This is compounded by the concurrent initiation of the top court’s winter vacation, commencing on December 16.
The first petition challenging the presidential order scrapping Article 370 was filed by advocate M L Sharma, who was later joined by another lawyer from Jammu and Kashmir, Shakir Shabir.
National Conference filed a petition on August 10. The petition was filed by Mohammad Akbar Lone and Justice (retd) Hasnain Masoodi, both Lok Sabha members of the NC.
There are other petitions challenging the Centre’s decision to abrogate Article 370, including a plea filed by a group of former defence officers and bureaucrats. Follow channel on WhatsApp
NEW DELHI: India’s top court will deliver its verdict on Monday regarding a series of petitions that challenge the Union government’s August 5, 2019 decision to revoke special status under Article 370 for the erstwhile state of Jammu and Kashmir (J&K) and its decision to bifurcate the state into two Union Territories—J&K and Ladakh.
According to the cause list for December 11 (Monday), uploaded on the apex court’s website, a five-judge Constitution bench headed by Chief Justice D Y Chandrachud would deliver the verdict. The other members of the bench are Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant.
Petitioners and lawyers who spoke with TNIE say they are quite hopeful that the top court’s verdict will be beneficial for them. Muzzafar Iqbal Khan, who is one of the petitioners, believes that the SC’s verdict will be a historical decision with long-term repercussions on Indian politics.googletag.cmd.push(function() {googletag.display(‘div-gpt-ad-8052921-2’); });
“The question before the Supreme Court would be the scope and sweep of the parliament’s power under Article 3 of the constitution to disintegrate a state. This question is going to have long-term repercussions for Indian politics. Since it is for the first time the Supreme Court will decide this issue, as never before in independent India, ever any state was reduced to union territory,” Khan told the TNIE.
OPINION | Awaiting the SC judgement on Article 370
The apex court had started the hearing on a day-to-day basis from August 2, 2023, for 16 tumultuous marathon hearings on a batch of 23 petitions until September 5, 2023, challenging the constitutional validity of changes made to Article 370, which gave special status to the erstwhile state of J&K and its reorganisation into Union Territories of J&K and Ladakh.
The five-judge Constitution bench of the apex court reserved its judgement on September 5, 2023, after hearing from all the parties, including the petitioners, the Government of India (respondent), and others.
During the hearing, the top court heard Attorney General (AG) R Venkataramani, Solicitor General (SG) Tushar Mehta, senior advocates Harish Salve, Rakesh Dwivedi, V Giri and others on behalf of the Centre and the intervenors defending the abrogation of the provisions of Article 370.
AG Venkataramani, and SG Mehta, the top and senior law officer of the Union of India (UOI), respectively, had submitted that the Centre had filed an additional affidavit setting out the central government’s view on post-notification development but added that it would have no bearing on the constitutional question and would not be relied upon.
Senior advocates, including Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Zaffar Shah and Dushyant Dave, had argued on behalf of the petitioners.
The lawyers had dwelt on various issues, including the constitutional validity of the Centre’s decision to abrogate the provisions of Article 370, the validity of the Jammu and Kashmir Reorganisation Act, which split the erstwhile state into two Union territories, challenges to the imposition of the governor’s rule in Jammu and Kashmir on June 20, 2018 and the imposition of the president’s rule on December 19, 2018 and its extension on July 3, 2019.
OPINION | Converting a state of India into a union territory
The Centre, which had defended its decision before the Apex Court to abrogate Article 370 from J&K, claimed that post-abrogation of special status, street violence, which was engineered and orchestrated by terrorists and secessionist networks, has now become a thing of the past.
“Since 2019, when Article 370 was abrogated, the entire region has witnessed an unprecedented era of peace, progress, brotherhood, and prosperity,” the Centre claimed through its affidavit, adding that the dilution was necessary to completely integrate J&K into the Union of India.
The government also informed the apex court that the Valley has prospered in the past four and a half years, after the abrogation of Article 370 in August 2019. SG Mehta said that the central government is always for national integration. “People’s betterment is being taken care of by the Centre with this abrogation of Article 370,” he said.
Mehta also claimed that youth, who used to be employed by terror groups inimical to India, are now employed gainfully after the abrogation of Article 370.
ALSO READ | Ladakh saw ‘unbelievable changes’ after Art 370 abrogation: Lt Governor
Opposing the submissions of the Centre, the petitioners had argued that Article 370 had assumed a permanent character as soon as the J&K Constituent Assembly dissolved in 1957, after the framing of the State Constitution.
Muzzafar Iqbal Khan said Article 368 (the Parliament’s power to amend the Constitution) did not apply to Article 370. He argued that it was not for the betterment of the people of J&K, and the abrogation of Article 370 should be quashed by the Apex Court.
Khan further stated that Article 370 carved out an area for J&K that was not in sync with the general federal features of the Indian Constitution for the rest of the country. While Kashmir has gone through some tough times in history, with the abrogation of Article 370, it felt like Kashmir had been exiled from itself, Khan remarked.
During the hearing, the apex court had asked who can recommend the revocation of Article 370 in Jammu and Kashmir when no constituent Assembly, the concurrence of which is required before taking such a step, exists there.
The top court had also asked how can a provision (Article 370), which was specifically mentioned as temporary in the Constitution, become permanent after the tenure of the Jammu and Kashmir constituent Assembly came to an end in 1957.
Some of the petitioners opposing the repeal of Article 370 had argued that the provision could not have been abrogated as the term of the Jammu and Kashmir constituent Assembly ended in 1957 after it drafted the erstwhile state’s Constitution. With the constituent Assembly having become extinct, Article 370 acquired a permanent status, they had said.
ALSO READ | Hope SC delivers verdict in favour of people of J&K: Ghulam Nabi on Art 370
The Centre had argued that there was no “constitutional fraud” in annulling the provision that accorded the special status to the erstwhile state of Jammu and Kashmir.
The impending verdict on the extensively discussed case of the abrogation of Article 370 in Jammu and Kashmir carries added significance, considering the retirement of Justice Sanjay Kishan Kaul who had presided over the case.
Justice Kaul, the senior judge of the Supreme Court after CJI Chandrachud, will retire on December 25, after serving from February 17, 2017, for a period of six years, 10 months, and 10 days.
Notably, historical patterns reveal that the Supreme Court refrains from issuing verdicts or orders during vacation periods, be it summer or winter.
However, this trend is set to be bucked with the retirement of Justice Kaul as it is customary for an Apex Court judge who presides over a case to render judgment before retirement. This is compounded by the concurrent initiation of the top court’s winter vacation, commencing on December 16.
The first petition challenging the presidential order scrapping Article 370 was filed by advocate M L Sharma, who was later joined by another lawyer from Jammu and Kashmir, Shakir Shabir.
National Conference filed a petition on August 10. The petition was filed by Mohammad Akbar Lone and Justice (retd) Hasnain Masoodi, both Lok Sabha members of the NC.
There are other petitions challenging the Centre’s decision to abrogate Article 370, including a plea filed by a group of former defence officers and bureaucrats. Follow channel on WhatsApp
