The petitioners in the plea against abrogation of Article 370 of the Constitution have remarked that the case is not about the desirability of Article 370 and that the Court must delve into the question whether the Central Government could use the temporary cover of President's Rule in order to effect a permanent and irreversible alteration in the Federal structure of India.
"…this is not a case about the desirability of Article 370 of the Indian Constitution, the policy arguments for or against its existence, or about the politics of the state of Jammu & Kashmir. Rather, the questions raised in the case are far simpler: can the central government, using the temporary cover of President's Rule, effect a fundamental, permanent, and irreversible alteration in the federal structure, without any participation by the elected representatives of the state, or for that matter, the participation of any of the institutions of the state duly established under the law?" the common counter affidavit filed by the Petitioners read.
Stating that the case required interpretation of the nature, scope and limitations of President's Rule in a democracy, the petitioners contended that the Centre could not hide behind the veil of "policy arguments".
The petitioners had challenged the constitutional validity of the abrogation of Article 370 of the Constitution by a Presidential Order passed under Article 370, pursuant to which the Central Government had enacted the J&K Reorganization Act, 2019 to bifurcate the State of Jammu and Kashmir into two successor Union Territories – UT of Jammu and Kashmir, and UT of Ladakh.
On November 9, the Central govt. had submitted its reply in the matter.
It is noteworthy that in its affidavit, the Centre had said that since the state was under the President's rule at the relevant time, the Parliament was vested with the powers otherwise exercisable by the Legislature of the state. Thereby, in view of Article 356(b), the Parliament was well within its powers to legislate on the J&K Reorganization Act, 2019. It had also claimed that the bifurcation of J&K was done in order to address the grave problems of terrorism, militancy and separatism perpetrating in the valley.
The petitioners have submitted that the Centre's failure to submit a para-wise reply to the main petition should be treated as a waiver of their right and that the Petitioners' plea of non-traverseon should be allowed.
The doctrine of non-traverse contained in Order 8 Rule 5 of CPC means that where a material averment is passed over without specific denial, it is taken to be admitted. In M. Venkataraman Hebbar (D) By L.RS. v. M. Rajgopal Hebbar & Ors., 2007 (5) SCALE 598, the Supreme Court had held,
"…if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved."
Refuting the contention that the move was to ensure economic upliftment of the valley, the petitioners vehemently submitted that there was not an iota of evidence to support that Article 35A had acted as an impediment in economic development of the erstwhile state. Rather it was submitted, based on certain statistics that the erstwhile state of J&K was at par with other better performing states.
With regards the argument that the amendment would also cater to the women of the erstwhile state who were discriminated against if they chose to marry a non-permanent resident, the Petitioners submitted that the High Court of J&K had already ruled that marriage of daughter of a permanent resident of J&K with a non-resident shall not result in her losing her status post marriage.
The petitioners further proceeded in their rejoinder under the following heads:
Nature Of India's Federalism:
The petitioners submitted that Article 370 had enormous "symbolic value" inasmuch as it represented that India honored the promises made in its Constitution, to respect the will of the people of Kashmir.
It was further argued that the J&K was a "constituent unit" of India's federal structure by virtue of both the Indian Constitution as well as the Constitution of Kashmir, with a role to play in determining the character of that federal relationship. In this behalf they submitted,
"Negotiations and parleys with separatists and lapsed terrorists were conducted on the basis of the framework of Article 370: this Article, therefore, firmly linked the fate of J&K with India, while also providing flexibility w.r.t. to states' rights, within the bounds of Indian federalism. It was therefore, a shining example of the "pluralistic federalism" that is the hallmark of Indian Constitutionalism."
Use Of Article 370(1)(D) To Effectively Amend Article 370(3):
With regards the State's contention that the power under Article 370(1)(d) was exercised by the President on as many as six occasions when the President's Rule was in force in Jammu & Kashmir and that at no time was any issue/challenge was ever raised against the exercise of this power, the petitioners submitted,
Either the method used on such occasions was fundamentally different or, the nature of the changes made was merely interpretative and not substantive, as in this case.
"the modification of sub-clause (d) is historically unprecedented. The text of Article 370 has never been – and indeed cannot be – amended substantively through the route of Article 367(4)…
Such a substantive change in powers is thus textually unsupported, historically unprecedented, and structurally unsound under the scheme of the Indian Constitution," the affidavit read.
On the argument that the "Parliament had wide scope of power under Article 370(1)(d) to modify the provisions of the Constitution in their application to J&K", the Petitioners contended,
"no matter how wide, the word "modification" does not cover the creation of substantive new powers altogether.
…even if it were to be held that the power of "modification" under Article 370 includes the power to create substantive new rights and obligations, that power is limited by the "foundational principles" of the Constitution…"
Implied Limitations Under President's Rule:
It was argued that no power is "untrammeled" in a Constitutional Democracy. Articles 356 and 357 that authorize and regulate President's Rule also place "implied limitations" upon its exercise and as such, the President is not empowered to bring about "fundamental and permanent alterations" to the very structure and "federal architecture" of a State.
"Article 357(2) makes this understanding explicit when it states that legislation enacted under emergency powers can be altered, repealed or amended by a competent legislature or other authority. Article 250(2) states that laws made by Parliament on matters in a State list during an emergency shall cease to have effect after expiry of 6 months after the proclamation ceases to operate," they submitted.
Reliance was also placed on the ruling in Kesavanada Bharti v. State of Kerala, (1973) 4 SCC 225, to state that power to amend the Constitution is limited to the extent that the power could not be used to destroy the very source from which it flowed.
Importance Of Section 147 Of The Constitution Of J&K:
The Petitioners argued that the J&K legislature was barred by Section 147 of the Constitution of J&K from initiating any change in the provisions of the Constitution of India as applicable in relation to the State. However, by replacing "Constituent Assembly" in Article 370(3) by "legislative assembly", the Presidential Order vested in J&K legislative assembly a power that it could not validly exercise.
Section 147 of the Constitution of J&K deals with the amendment of that Constitution and places certain fetters on the power of the Legislative Assembly of the State to amend that Constitution. The Centre in its affidavit had argued that the same could not in any manner affect, dilute or control the power conferred on the President of India under Article 370 of the Indian Constitution. Equally, it could not fetter Parliament in the exercise of its functions under the Constitution of India.
Unconstitutionality Of J&K Reorganization Act:
Remarking that there can be little doubt that conversion of a state into a union territory involves "retrogression of democratic rights of people", the petitioners submitted,
"Interpreting Article 3 in the manner that the Respondent suggests would effectively amount to reading into it a power to convert India from a federal polity into a unitary polity (a "Union of Union Territories")…
…neither the language nor the marginal heading provide for the express power to convert the status of a state to a union territory- merely its boundaries, areas or name."
Considerably, the Centre had in its affidavit argued that the Explanation to Article 3 clearly provided that the references to "State" in Article 3, includes reference to a "Union Territory".
The Petitioners argued that the distinction between a state and a union territory is profound inasmuch as union territories have considerably fewer powers than states. They said,
"…conversion of a state to a union territory reduces the powers of its democratically elected government…
It is not believable that while consultation is required for changing the name, for example, it is not specifically prescribed for a constitutional change of enormous significance that has a direct impavt on the federal structure of the Constitution…"
The Supreme Court had set up a Constitution Bench comprising Justices N V Ramana, Sanjay Kishen Kaul, R Subhash Reddy, B R Gavai and Surya Kant to hear all the petitions in this matter. The matter is scheduled to come up for hearing on November 14.
National Conference leaders Mohammed Akbar Lone and Hasnain Masoodi (who is a former judge of J&K High Court), former IAS officer and J&K politician Shah Faesel, activist Shehla Rashid, Kashmiri lawyer Shakir Shabir, Advocate M L Sharma, are some of the petitioners.
The rejoinder has been filed by AOR Aakarsh Karma.
Click here to download rejoinder