As the Supreme Court is finally going to hear the bunch of petitions challenging the reading down of Article 370 and Article 35A, Kashmir’s political class is caught between hope and apprehension, reports Faiqa Masoodi
Even after remaining watered down for four years now, Article 370 continues to create ripples in the frozen waters of Kashmir politics. The slightest happening about the article is enough to tickle the nerves of the political class and the common masses in the erstwhile state of Jammu and Kashmir.
The far-reaching political move, under which the article was read down by a Presidential decree, on August 5, 2019, paved the way for binning Jammu and Kashmir’s constitution, reworking the entire legal infrastructure and bringing Jammu and Kashmir at par with other states in India. In response to the reading-down of the key article, a batch of petitions was filed before the Supreme Court challenging the constitutional validity of the move.
On July 11, 2023, the Supreme Court was set to hear the petitions for the first time since March 2, 2020. Media reports created anticipation around the upcoming hearing. Just before the scheduled session, the Union Home Ministry presented an affidavit defending the abrogation, citing improved law and order in Kashmir, fast-paced developmental activities and the arrival of tourists as justification.
The petitioners contend that the abrogation of Article 370 violated the Constitution and resulted in numerous human rights violations in Jammu and Kashmir. Conversely, the government asserts that the removal of Article 370 was crucial to establish peace and stability in the region.
Nevertheless, the case has sparked extensive discussions regarding the future of Jammu and Kashmir, and its outcome is expected to have a profound impact on the region.
The government strongly justified the abrogation, highlighting the positive impact it had on the entire region, including Ladakh. They referred to it as a historic step that brought stability, peace, development, and security to Jammu and Kashmir. The Ministry of Home Affairs emphasised the region’s three-decade-long struggle with militancy.
In response, the political class in Kashmir strongly criticised the arguments put forth by the BJP-led central government. Omar Abdullah of the National Conference, called these arguments political rather than legal, stating that the case in the Supreme Court centres on the illegality and unconstitutionality of the 2019 decision, not the government’s political justifications.
Mehbooba Mufti, Omar’s colleague and former Chief Minister, said the defence lacks logical justification for the unlawful revocation of Article 370. She pointed out that the government used its majority to subvert the Indian constitution and violated earlier rulings of the Supreme Court, which held that only Jammu and Kashmir’s constituent assembly could recommend the removal of Article 370 to the President of India. She dismissed the claims of enforced silence and grassroots democracy as insufficient to justify this constitutional disregard.
However, the Supreme Court set August 2 as the date to begin day-to-day hearings of the petitions. The Constitution Bench clarified that the Centre’s recent affidavit claiming peace and progress in Jammu and Kashmir following the abrogation of Article 370 has no relevance to the constitutional challenge against its repeal.
Mufti responded to the Supreme Court’s decision on the Centre’s affidavit, stating that it proves the lack of a logical explanation for the illegal abrogation of Article 370. She expressed concern that the country’s Constitution, which the judiciary upholds, should not be sacrificed to appease those who have limited knowledge about the matter.
A five-judge Constitution Bench led by Chief Justice of India, Justice DY Chandrachud, addressed the procedural formalities before the actual hearings. They declared that the petitions’ hearing would commence on August 2 at 10:30 am, continuing on a day-to-day basis except for miscellaneous days (Mondays and Fridays).
The bench, including Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, appointed two lawyers from both the petitioner’s and government’s sides to prepare convenience compilations and submit them by July 27. They made it clear that no documents would be accepted after that date.
Thus far, approximately 23 petitions have been filed by lawyers, activists, politicians, and retired civil servants, urging the Supreme Court to examine the legality of Parliament scrapping Article 370 without the consent of the people of Jammu and Kashmir, as well as the constitutionality of its bifurcation into two Union Territories.
The petitioners include National Conference Lok Sabha MPs Mohammad Akbar Lone and Hasnain Masoodi, CPI (M) leader Mohammed Yousuf Tarigami, activist Shehla Rashid, Kashmiri artist Inderjit Tickoo (alias Inder Salim), veteran journalist Satish Jacob, and advocates M L Sharma, Soayib Qureshi, Muzzafar Iqbal Khan, Rifat Ara Butt, and Shakir Shabir.
Additionally, former military officers and bureaucrats, such as former Air Vice Marshal Kapil Kak, retired Major General Ashok Mehta, former IAS officers Hindal Haidar Tyabji, Amitabha Pande, and Gopal Pillai, as well as former member of the home ministry’s group of interlocutors for Jammu and Kashmir Radha Kumar, have challenged the Presidential Order that abrogated Article 370.
Various associations and political parties, including the People’s Union for Civil Liberties, Jammu and Kashmir Bar Association, and Jammu and Kashmir People’s Conference, have also approached the Supreme Court in this matter.
Petitions were filed under Article 32, which guarantees every citizen the right to seek constitutional remedy from the Supreme Court if their fundamental rights are violated.
The case was heard on December 10, 11, and 12, 2019, as well as on January 21, 22, and finally on 23, when the court reserved its order on whether the matter should be referred to a larger bench. On March 2, 2020, the Supreme Court ruled that there was no need for the matter to be referred to a larger bench. The case has not been heard since then.
The petitions challenge the presidential orders of August 5 and 6, 2019, as well as the 2019 Act, alleging that they are unconstitutional and violate the rights of the people of Jammu and Kashmir without their consultation or consent. The petitioners argue that in a federal democracy, the right to autonomous self-government is a fundamental right under the Constitution and cannot be taken away without following due process.
The petitioners also invoke the ‘doctrine of colourability,’ which examines whether a law has been enacted indirectly on a subject that is otherwise barred. They challenge the presidential order on this basis.
Many developments happened in between. Out of the 23 petitioners, two have withdrawn their pleas challenging the abrogation of Article 370. One of the petitioners passed away. IAS officer Shah Faesal and activist Shehla Rashid Shora, have withdrawn from the case. The Supreme Court granted their request to be omitted from the proceedings. Feasal quit the government and floated a political party and was jailed after August 5, 2019. He later quit politics and was finally taken back by the government.
“I have withdrawn the petition in the Supreme Court challenging the Presidential Order to scrap Article 370 long ago,” the IAS officer had told news agency ANI earlier this month.
Faesal while revealing his swan song on the issue said that Article 370 is a thing of the past, “370, for many Kashmiris like me, is a thing of the past. Jhelum and Ganga have merged in the great Indian Ocean for good. There is no going back. There is only marching forward.”
The court also directed the deletion of the name of another petitioner Hindal Haidar Tyabji after it was informed that he had died.
The Article 370 cases remained pending as four Chief Justices retired. These included Justices Ranjan Gogoi, Sharad Arvind Bobde, Nuthalapati Venkata Ramana, and Uday Umesh Lalit. Justice Dhananjaya Y Chandrachud, the incumbent Chief Justice, is the fifth Chief Justice to handle the case. Despite assurances from former Chief Justices that the case would be given priority, it has not been heard yet.
In addition to the legal and political implications, the abrogation of Article 370 has had significant ramifications on the socio-economic landscape of Jammu and Kashmir. The region has witnessed a series of changes, including the reorganisation of administrative divisions, delimitation of the assembly and Lok Sabha constituencies and the implementation of new policies and development initiatives.
As the petitions await a final decision, the outcome of the case will undoubtedly shape the future trajectory of Jammu and Kashmir and have broader implications for constitutional interpretation, governance, and regional dynamics.
Kashmir’s political class is caught between apprehensions and hopes. “There are legitimate apprehensions about why SC has taken up Article 370 with such alacrity after their visit to Kashmir. After remaining silent for four years the decision to hear the case on a daily basis does evoke misgivings,” Mehbooba Mufti wrote on Twitter the day the top court announced the decision of hearing the case. “Hope the Constitution of this country by which judiciary swears is not sacrificed at the altar of power to satisfy the collective conscience of people who know little about the matter.”
Omar Abdullah believes in the strength of the case. “Let the Supreme Court hearing begin, and the details will emerge. If our case had been poor, believe me, they would have begun the hearing in weeks instead of taking such a long time. The law and Constitution were destroyed on August 5, 2019,” Omar Abdullah said. “Whatever political spin you give it by linking it to the G20 and tourism, the truth remains that whatever happened in Jammu and Kashmir was illegal from a Constitutional and legal standpoint, and we expect the Supreme Court to provide a ruling on this.”