Centre’s last affidavit on Article 370 put aside; SC hearing starts August 2

The five-judge bench will be headed by Chief Justice D.Y. Chandrachud, alongside justices B.R. Gavai, S.K. Kaul, Sanjiv Khanna and Surya Kant

NSA Ajit Doval interacting with Kashmiris in the wake of abrogation of Article 370 (photo: NH library) 
NSA Ajit Doval interacting with Kashmiris in the wake of abrogation of Article 370 (photo: NH library) 

Ashlin Mathew

The Supreme Court stated on 11 July that it will begin hearing on 2 August the petitions challenging the abrogation of Article 370 of the Constitution, which revoked the special status granted to Jammu and Kashmir.

While completing the formalities ahead of hearing the case, which includes filing additional affidavits, the five-judge bench headed by Chief Justice of India D.Y. Chandrachud said the matters will be heard every day from August 2, except on Mondays and Fridays. Justices B.R. Gavai, S.K. Kaul, Sanjiv Khanna and Surya Kant are also on the bench.

While nominating advocates S. Prasanna and Kanu Agarwal as nodal counsels to prepare submissions from the petitioners and respondents respectively, the bench stated that all of them should be filed by 27 July.

The petitions are challenging the abrogation of Article 370 and the bifurcation of the state of Jammu & Kashmir into two union territories—Jammu & Kashmir and Ladakh.

The union government had submitted an affidavit on July 10 that said the revocation of Article 370 had brought “profound affirmative and progressive changes in the last four years" to the state. Appearing for the union government, Solicitor General Tushar Mehta said the government did not want to file any rejoinders in the matter. He said that the affidavit spoke only about the current situation in J&K after the abrogation.

The union government's affidavit stated that since 2019, the region has witnessed unprecedented era of peace, progress and prosperity: “Life has returned to normalcy after three decades of turmoil. Schools, colleges, universities, hospitals and other public institutions are functioning efficiently without any strikes, or any kind of disturbances in the last three years. The earlier practice of daily strikes, hartals and stone pelting are things of the past now.”

However, CJI Chandrachud said the latest affidavit submitted by the union government will have no bearing on the case, which is about the constitutionality of the abrogation of Article 370. Mehta too added that the latest affidavit filed by the Centre would not be relied upon to argue the constitutionality of the decision.

Arguing for a few petitioners, senior advocate Dushyant Dave said that the union government’s latest affidavit should not then even be considered in the matter, since Mehta had said it would not be relied upon for the Centre's argument.

As a result, the bench noted in an order that the solicitor general has informed it that the “contents of the affidavit will not have a bearing on constitutional issues and thus are not to be relied on for that purpose”.

IAS officer Shah Faesal, who was one of the petitioners to the Supreme Court on the abrogation of Article 370, and Shehla Rashid, meanwhile informed the apex court through their lawyer Raju Ramachandran that they do not wish to continue as the petitioners and requested that their names be deleted.

This in turn prompted the bench to note that the title of the case would be amended, and the suggestion from senior advocate Gopal Sankaranarayanan to mark it 'In Re: Article 370 of Constitution' was accepted.

However, advocate M.L. Sharma opposed the change, saying his name should not be removed as he had filed the first petition and the first notice was issued on his petition. CJI Chandrachud countered that only the case title was changed and his name was still included among the petitioners. Meanwhile, Justice Kaul snapped at Sharma, reminding him that the court had already warned him previously about similar arguments. “Please don’t repeat what we have already warned you against last time,” said Kaul.

The case is being heard now for the first time in 3 years, since the last hearing was in March 2020. At the time, the bench headed by Justice N.V. Ramana had declined a plea to refer the petitions to a larger bench. The bench had said it would give a date after considering the schedules of the judges on this bench (who were also hearing the Sabarimala case), but that date was never agreed upon.

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