Article 370: SC to Disregard Union Govt's Fresh Affidavit, Draws Roadmap for Hearing Challenges

New Delhi: The Supreme Court’s Constitution Bench, today, July 11, drew a roadmap for hearing the batch of petitions challenging the reading down of Article 370 of the constitution which granted special status to the erstwhile state of Jammu and Kashmir, and its bifurcation into the union territories of Ladakh and Jammu and Kashmir, on August 5, 2019. 

The bench comprising the Chief Justice of India, D.Y. Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant directed the petitioners, respondents and the interveners to file all documents, compilations and written submissions by July 27. 

The bench made it clear that the hearings will be held on a day-to-day basis from August 2, leaving Mondays and Fridays, which are meant for hearing miscellaneous cases by separate benches. 

The bench appointed advocates-on-record, Prasanna S., and Kanu Agrawal to be the nodal counsel for preparation of index and sharing of compilations with all the counsel. 

The bench agreed to the deletion of names of two petitioners, Shah Faesal and Shehla Rashid, as they had sought permission to withdraw their petitions.  

The bench took note of the serious misgivings expressed by the petitioners’ counsel regarding the fresh affidavit filed by the Union government a day ago, on Monday, claiming return of normalcy, and “unprecedented stability and progress” to the two Union Territories after the reading down of Article 370.  

The need for a fresh affidavit was especially questioned by Justice Kaul, who joined the hearing from his residence. He suggested that the fresh affidavit would mean giving more time to the petitioners to respond to it, and this would result in diversion of precious time for hearing the main issue, that is constitutionality of the move to read down Article 370. He was of the view that the debate on whether the case should be referred to a seven-judge bench had resulted in some avoidable diversion earlier.  

In 2020, when the case was heard first, the bench had decided that there was no need to refer it to a seven-judge bench, and the plea for reference, based on a perceived conflict between two previous judgments on the interpretation of Article 370, was erroneous. 

Sensing the mood, the Solicitor General Tushar Mehta also promised not to rely on the Union government’s affidavit during the submissions, even though he suggested that the petitioners need not respond to it. When senior advocate Dushyant Dave, appearing for the petitioners, suggested that the media had already reported the contents of the Union government’s fresh affidavit, and that the petitioners should get an opportunity to respond to it, the bench responded saying it could not control the media.  

Case renamed

The bench also agreed to a suggestion by senior advocate Gopal Sankaranarayanan that the batch of 20-odd petitions to be heard by the bench be titled “In Re: Article 370 of the Constitution”, to avoid giving primacy to any one of the petitioners. 

The request of advocate Manohar Lal Sharma, who joined the hearing online, to be given credit for being the first petitioner in the case, was vehemently opposed by Justice Kaul and others, and this was acceded to by the bench. 

The CJI, however, thanked Sharma for joining the hearing online, and wished him well. 

The bench agreed to a suggestion by SG Mehta not to encourage the addition of any more petitions to the list, as it would then become unmanageable. 

The bench agreed that senior advocate Menaka Guruswamy may be heard as an intervenor rather than as a fresh petitioner, as suggested by Mehta. 

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