Politics
'Article 370' Hearings: The Four Kinds Of Arguments Being Made By Petitioners, And Their Counters
- All the submissions made in the 'Article 370' case, distilled in one place.
Jammu and Kashmir
On 2 August, 2023, the Supreme Court of India began its hearings at 10.30 am on the petition seeking repeal of the Government of India’s order abrogating Article 370 titled as “In Re: Article 370 of the Constitution”.
There are over 52 attorneys representing the Petitioners who seek the repeal. There are 52 Petitioners in person, mostly all advocates. There are over 38 attorneys representing the Responders who support the abrogation. There are 64 named Intervenors in person again mostly advocates. There are 34 Applicants in person virtually all advocates.
It is fair to say that the legal firepower that is present is the flower of the profession and that this case holds enormous significance for the idea of India.
Not surprisingly, the filings are copious and the attachments even more exhausting. But to the students of Kashmir’s tragic history the issues that this case will hinge on are painfully simple. What is surprising is that notwithstanding their travails, the miniscule Kashmiri Pandit community has made five intervention filings and resolutely defended the repeal with cogent arguments that reflect their deep lived experience with Article 370.
For the lay person, all the arguments and counter arguments can be simplified into four clusters. These are laid out below –
Arguments on Unconstitutionality of Repeal Order
The presidential order defies the provisions of Article 370 (3) that modifications require recommendation of J&K Constituent Assembly, which dissolved in 1957 before the President can issue a notification to render Article 370 inoperative. This procedural requirement was illegally circumvented. Thus, the order is inherently unconstitutional.
Respondents' Counter Arguments
The President can amend and modify the applicability of Constitutional provisions to J&K under Article 370(1). The modification to change "Constituent Assembly" to "Legislative Assembly" in Article 370(3) is valid. The President was constitutionally empowered to issue the order under Article 370(1) as the state was under President's Rule. The President has the power of recognition of the governance in the state. Parliament gave the concurrence in place of the non-existent Constituent Assembly.
The Constituent Assembly permanently dissolved in 1957 without recommending abrogation of Article 370. The right of a non-existent party lapses with non-existence of its intent. Thus, Article 370 could not be left operative indefinitely against the known intent of it being temporary. Lacking ratification, back door permanence would not reflect democratic will. After J&K's accession, Article 370 was gradually attrited and its continuance or abrogation was up to the President and Parliament, which exercised their powers legally.
Arguments on Illegality of Repeal Order
The order converts J&K into a Union Territory and extracts Ladakh province without consent, violating the constitutionally guaranteed autonomy of the entire state of J&K.
The people of J&K have been stripped of democratic rights and civil liberties by the blackout of journalists and mass detentions.
Respondents' Counter Arguments
The President was fully empowered to modify the status of J&K and convert it into Union Territories under the powers conferred by Article 370.
Temporary restrictions on communications and preventive detentions were required to maintain public order and security in view of external threats. These do not make the repeal illegal.
The change in status was affected through legislation passed by Parliament, which has the power to reorganize states under Article 3.
Arguments on Implications of Repeal
The unilateral abrogation upsets the careful balance between Center-state powers, autonomy of states, and cooperative federalism.
It sets a dangerous precedent for the Center to dissolve elected state governments and legislate directly without consent.
The special status was meant to recognize J&K's unique accession terms. With its removal, the essence of J&K's accession is unilaterally altered.
Respondents' Counter Arguments
Article 370 produced a discriminatory regime. Its repeal removes this discrimination while fully integrating J&K.
The repeal establishes the supremacy of Parliament and the uniform applicability of the Indian Constitution. This strengthens the sovereignty and integrity of India.
J&K remains a constituent state of the Indian Union. But its unique asymmetry bred separatism. It led to atrocities against minorities. It had to end to ensure national security and territorial integrity.
Article 370 hampered J&K's development.
Arguments on Impact on Kashmiris generally and Minorities and Kashmiri Pandits specifically
Respondents' Counter Arguments
Article 370 enabled the political marginalization and social exclusion of minorities in J&K by allowing laws that stripped them of their rights. The biggest victims were the Kashmiri Pandits.
Its repeal is the first step towards their rehabilitation and re-integration of over 500,000 Kashmiri Pandits who were forced to flee their homeland and became refugees in their own country.
The withdrawal of Petitioner No 1 and Petitioner No 3 from the original filing is a telling indicator of the changed ground reality proving that Article 370 was a constitutional failure resulting in injury to all Kashmiris.
Closing argument
Both the State of J&K and India had agreed to an expiring conditionality that created acceptability during the formation of the Union, one in the form of the consent of the Constituent Assembly and the other in terms of the temporary aspect. The former had become the immovable object and the latter, Time, the irresistible force.
As a student of Kashmir, the Respondents have demonstrated versus the Plaintiffs that the past due date Article 370 had to be repealed as a necessary constitutional measure to correct a constitutionally suspect article, fully integrate J&K, establish democratic ethos, restore constitutional rights of persecuted minorities like Kashmiri Pandits, spur development and strengthen national sovereignty against separatism enabled by Article 370.
The exceptional circumstances and ambiguous drafting warranted the unprecedented means. Therefore, the repeal order has a stronger case and higher likelihood of being upheld.
Notwithstanding the effort of the Humpty Dumptys, the Kashmir egg cannot be put back again. The only issue left open is for the Court to mandate decisive corrective actions by the State for its Constitutional failures stemming from Article 370 and restitution for the injuries suffered thereof by multiple parties of which the Kashmiri Pandits rank at the top.
But the country will have to await what honourable judges decide. Until then, the matter will be followed keenly not just in India but around the world.
Rakesh Kaul has authored 'The Last Queen of Kashmir' published by Harper Collins and 'Dawn: The Warrior Princess of Kashmir' published by Penguin.
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