B L Saraf
Much awaited judicial scrutiny of the Presidential Order of August, the 5th 2019 which diluted Art 370 and erased Art 35 A from the Constitution, will, hopefully, get going soon. The Supreme Court has desired to hear petitions from August 2 onwards which have challenged the Presidential Order and other ones issued in the follow up.
It may take a while for the Apex Court to come to a decision, nonetheless, it’s move has stirred Valley’s moribund political scene to life. Two major political parties like NC and PDP have come out with their reactions. The NC leaders say that they are watching these developments closely. PDP, on the other hand, has been rather vocal in reaction. One of its senior leaders has said ” the Supreme Court is hearing another momentous case after Ram Janam Bhumi one. This time the court has to take call and decide between the Constitution and a party’s agenda.” It may give heart to the political parties in Kashmir that the Apex Court has refused to entertain Central Government’s affidavit to show “the dilution of Art 370 has ensured enormous economic activity in J&K.” It has observed that only constitutional aspect of the matter will be considered.
It was in April 2022 the then Chief Justice, NV Ramana announced listing of these petitions for hearing “soon “. Coming close on the heels of his announcement to list the petitions challenging abrogation of Art 370 for hearing, the Chief Justice N V Ramana addressed 11th joint conference of Chief Ministers and Chief Justices of the states, on 30 04 2022, wherein he dwelt on many issues that confront the Indian judiciary, particularly the one of pendency -which has assumed enormous proportion. PM Narendra Modi was also present in the conference. Listing number of reasons for the laws delay CJI said “At times, ambiguities in legislations also add to the existing issues. If the legislature passes law with clarity of thought, foresight and with people’s welfare in mind, the scope for litigation gets minimized. The legislature is expected to solicit views of the public and debate the bills, clause by clause, threadbare before enacting a law.” The statement, then gave a hope that petitions challenging the abrogation of Article 370 which stripped J &K of its special status would see a closure of the issue, the way Court deems fit. However, it didn’t happen in 2022: we trust it will happen in 2023!
Leaving merits of the case to the decision of Supreme Court, if any illustration of how a legislation of far reaching consequence was passed without “debate, clause by clause consideration and without soliciting views of the public ” – which the Hon CJI flagged in the conference – the abrogation of Art 370 and enactment of J&K Reorganization Act 2019 – Act 34, which split Jammu and Kashmir and downgraded it into two UTs, provides a classic example. It took Parliament just few hours to undo the 75 year old history written in blood and sweat of so many. Well, one hopes that when the issue comes up before the Court this circumstance, among others, may also be taken into the consideration.
We appreciate that our courts -the Apex Court including -are burdened with a heavy case load, with no proportionate men and material available to facilitate timely disposal of the cases. Here, the constitutional development that occurred in August and September of 2019, in India and Britain, respectively, come to the mind to bring out the contrast in the way these developments were dealt with by the Highest Courts of the respective countries. One has the origin in Indian Parliament brought about on the prompting of Government and other was the outcome of Queen’s action of prorogation of the British Parliament, initiated on the advice of British Prime Minister Boris Johnson when he failed to carry Parliament with him on matters related to British exiting EU. Both were epochal in some sense. However, thanks to the British courts the Queens’s one got reversed within 27 days of its making: while as that of the Indian Parliament still awaits decision.
In last week of August 2019, the Constitutional Bench of the Supreme Court took cognizance of the challenge to the Constitutional order and the J K Reorganization Act 2019. The matter is of importance to the different people for the different reasons. For a student of law quite a number of legal issues of far reaching consequences stand flagged by the subject experts.
They are ; the modification of Art 367 in so far as it applies to J & K fictionalizing the reference to ” the legislative Assembly of J&K as used in Article 370 to mean the governor of the state and reference to the ‘ Constituent Assembly ” used in Clause 3 Article 370 to mean ‘Legislative assembly of the state. That, according to the observers, combines in a governor role of legislature and of the Constituent Assembly. This was ostensibly done to pave way for the Statutory Notification that resulted in the recommendations to dilute the critical caveats of Article 370. Some raised the point that Art 370 cannot be used to amendment itself.
It will be interesting for a student of law to know how does Supreme Court decide the question of splitting erstwhile J &K State into two Union Territories, simultaneously, with the dilution of Art 370. Art 3 of the Constitution, no doubt, gives power to the Parliament to make law for creating a new state within the Union by separation of territory from any state. But, the Bill for this purpose can be introduced only on the recommendations of President. Before that, the President has to refer the Bill to the legislature of the state concerned for expressing their views within a specific period. While Parliament can act as a Legislature of the state which is under Presidents Rule and has a power to make laws for the state in question but can it be expected to have ”views” of the state legislature with respect to a matter which is revolutionary in nature. The Legislature in that sense means the group of Members who constitute it physically and not notionally. Therefore, in this context “having power to do a thing” and “expressing view” emerge out as two distinct expressions in sum and substance. Honourable Apex Court’s finding on the matter would indeed be interesting and quite educative.
The interest in disposal of the matter is guided by the urge to know how the Apex Court will travel across its earlier decisions where it had ruled in favour of retention of the Article 370. The latest one came on 16th December 2016 where the Court, on the appeals filed by the SBI and others feeling aggrieved of J&K High Court’s verdict which quashed their notices issued to the loan defaulters, under various provisions of Securitization and Reconstruction Of Financial Assets and Enforcement of Security Interest Act, confirmed its earlier position about the permanency of Article 370 taken in Sampant Prakash v State of J&K (1969) and Premnath Koul’s case of 1959.
(The author is former Principal District & Sessions Judge)
Follow our WhatsApp channel
