Temporary President's Rule Cannot Be Used To Permanently Repeal J&K Special Status: Petitioners In Article 370 Cases [Read Rejoinder]

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...

Temporary President's Rule Cannot Be Used To Permanently Repeal J&K Special Status: Petitioners In Article 370 Cases [Read Rejoinder]

Akshita Saxena

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