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Article 370: Analyzing The ‘Historic’ Legal Battle Over Jammu & Kashmir At The Indian Supreme Court

The Constitutionality and legality of Jammu and Kashmir’s status as a federating unit of the Dominion of India in October 1947 was debated by the Supreme Court for the first time in the post-independent history of India.

Learned justices of the Supreme Court and brilliant legal luminaries of the country, engaged by the stakeholders, such as a combination of political contenders and the defending state authorities, grappled with essential questions of law on Jammu and Kashmir and its now changed status as a Union Territory of India.

Kashmir valley political leadership had filed an application with the Supreme Court of India challenging the Union government’s right to abrogate parts of Article 370 of the Indian Constitution, conferring special status on J&K for various reasons and bifurcating the state into two Union Territories.

The Union government removed the state’s unique position in the course of reorganization of the state through an Act of Parliament on August 5, 2019.

Three Years Of Waiting To Be Heard

The matter had been hibernating at the SC for nearly three years. Conscious of inordinate delay in taking it up for hearing — something which a responsible judiciary is generally loath to allow — the Apex Court not only constituted a panel of five seniors headed by the Chief Justice of India but also allowed marathon hearing of arguments from each side.

The adjudication exercise dragged over sixteen days of uninterrupted hearing in 34 days. That explains the seriousness with which the Supreme Court dealt the case. Closing the proceedings after sixteen days of marathon hearings, the court reserved the verdict.

The entire debate encompassed history, demographic and anthropological particularities, constitutional and legal aspects, national security and state sensitivity, etc.

Was Article 370 A Permanent Provision?

The first objection of the plaintiffs was that Article 370 had almost attained the permanence of an Act of the Indian Constitution and could not be treated temporarily anymore.

The defense counsel argued that the party in power for nearly seven decades never sought to amend the Constitution and change the temporary status of the said article into a permanent Act of the Indian Constitution.

He argued that there was a sea change in the ground situation in Kashmir after the unleashing of a proxy war by the belligerent neighbor. Also, the willful suspension of developmental plans and projects that would have benefited the state’s people was the main reason for introducing a reorganization bill in Parliament, which was duly passed and became an Act of Parliament.

The strongest argument that senior advocate Kapil Sibal, for the petitioner side, submitted was that Article 370 (1) of the Indian Constitution had “assumed a permanent character as soon as the Jammu and Kashmir Constituent Assembly was dissolved in 1957 after the framing of the State Constitution.”

It has to be remembered that J&K is the only State of the Indian Union that has a constitution of its own. The State legislature must endorse any law passed by the Indian Parliament before it can become operative in J&K.

Chief Justice of India DY Chandrachud, heading the Constitutional bench, commented that petitioners were placing Article 370 on a pedestal loftier than the Basic Structure Doctrine of the Constitution and even beyond the reach of the amending powers of Parliament.

Can Union Territories Be Carved Out?

The petitions raised broadly two challenges. The first challenge pertained to the constitutional feasibility of the presidential orders; the second challenged the authority to bifurcate the State of Jammu and Kashmir into two Union Territories.

The court observed that if the state legislative assembly stood dissolved, that did not mean that the powers of the Parliament and its jurisdiction over the state had been suspended. The Parliament exercised the role of the assembly in suspension. Hence, the consent of the Parliament to abrogate a part or whole of Article 370 fulfilled the requirement of the assembly’s approval.

Regarding the issue of powers to order the bifurcation of the state into two UTs, the defense counsel cited at least five precedents of bifurcating or recreating new provinces through a constitutional process.

Petitioner’s Commitment To Indian Constitution

A piquant situation arose when the defense counsel notified the Constitutional bench that the main plaintiff, Muhammad Akbar Lone, was an MP and an MLA in the J&K Assembly in 2018. He had uttered the Pakistan Zindabad slogan during an active assembly session.

He demanded that Lone’s credentials need to be established. The CJI asked Lone to submit an affidavit stating two points: one, that he bore allegiance to the Constitution of India, and second, that he accepted J&K as an integral part of the Indian Union.

Lone submitted the affidavit but eschewed the commitment of the second requirement. The Court said it would take note of the refusal of Lone to consider the state as an integral part of the Union.

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Two questions arise in this context. First, Lone is a senior leader of the National Conference, which has filed the petition before the Supreme Court. His party did not take any action against him for raising slogans in support of an adversarial neighbor whom the Indian government accuses of unleashing a proxy war to destroy J&K.

The silence of his party’s seniors on such a critical issue reflects that the ruling party nurtures divided loyalty. Here is a person fighting election for the seat of an MP, taking oath by the Indian Constitution, demanding and getting its share of development funding but refusing to consider the state an integral part of the Union. And surprisingly, his party endorses his demeanor.

Kashmir’s Malaise Lies In Anti-India Mindsets

The entire Kashmir malaise lies in this glaring example. The National Conference and other political parties in the valley have often tried to trade falsehoods of the Union government allegedly giving unfair treatment to the people of Kashmir.

In contrast, the Union government contends that it is not the Union government but the valley leadership working against Article 370 and the special status. It is they who abused it.

The CJI asked the Attorney General to obtain information from the Union government about the time frame for restoration of the statehood of J&K. However, the Union government took the stand that the question was connected with the security scenario of the state. Two important aspects must be highlighted while dealing with this specific question.

The first aspect is that despite repeated warnings to the Western neighbor to stop sending armed and trained terrorists into the Indian part of Kashmir to destabilize the administration and disrupt peace, there is only a negative response.

The second and equally more critical aspect is the safe and honorable return and rehabilitation of nearly 400,000 Internally Displaced Persons (IDPs), who were forced out of their homes and hearth in Kashmir valley at the point of guns and had been living in different parts of the country as refugees for the last three decades and a half.

These IDPs expect the Court to do them justice, especially when the externally supported elements in the valley have no qualms of conscience in openly disallowing them to return to their homeland.

  • KN Pandita (Padma Shri) is the former Director of the Center of Central Asian Studies at Kashmir University. Views Personal.
  • Mail EurAsian Times at etdesk(at)eurasiantimes.com
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