When the petitions challenging the dismantling of Kashmir’s autonomy first came up before the Supreme Court on November 14, it refused to pass an interim order saying that would delay the trial unnecessarily. Yet, on Thursday, when the bench hearing the matter rose for lunch after barely two hours of proceedings, it announced the hearing will resume on January 21, over a month away.

A constitutional bench of Justices NV Ramana, Sanjay Kisan Kaul, R Subhash Reddy, BR Gavai, and Surya Kant began hearing arguments on December 10. The hearing was deferred on November 14, when it was initially scheduled to start, with the judges asking for all the documents that would be referred to beforehand. This, they had argued, would ensure a smoother hearing. Ramana, who leads the bench, had said they would prefer to make the decision in one go.  

But it is over four months since the Indian government abrogated Article 370 and split Jammu and Kashmir into two Union Territories, and the hearing is yet to gather steam.

In the past three days, only Raju Ramachandran, counsel for Kashmiri politician Shah Faesal and activist Shehla Rashid, completed his arguments. Another lawyer had just begun when the court rose, for over a month.

Further delay

Since August 5, when Article 370 was junked by the Parliament, as many as 22 petitions on the matter have been filed in the apex court. At least eight senior advocates are expected to argue the matter on behalf of the petitioners. PS Narasimha, former additional solicitor general, and Ranjit Kumar, former solicitor general, will represent the petitioners in favour of the abrogation, whereas Attorney General KK Venugopal and Solicitor General Tushar Mehta are expected to take the stand for the government.

One of the lawyers set to argue against the abrogation opined that even if the matter was heard daily, as the Ayodhya dispute was, it would still not get over “before March at least”. Arguments in the Keshavnanda Bharati case – in which the court ruled that the basic structure of the constitution could not be changed – had taken 68 days. The Ayodhya dispute was heard for 40 days and challenges to the Aadhar project for 38.

After Ramachandran completed his submission, Dinesh Dwivedi, counsel for Prem Shankar Jha, a journalist and former interlocutor to Kashmir, began. He argued for the case to be sent to a larger bench because two decisions given by five-judge benches that have a bearing on it – Prem Nath Kaul and Sampat Prakash – were under challenge for being in conflict with each other. 

Senior advocate Rajeev Dhavan interjected, saying the preliminary issues of law should be decided only after the bench has heard arguments from all sides.

“The lawyers have to decide amongst themselves the order in which they would argue,” Ramana said, though he agreed with Dhavan’s suggestion after a brief discussion with the other judges.

Dwivedi could not complete his arguments as the bench posted the matter for hearing in January.

Five judges or seven?

The main point of contention at the moment is whether the case should be heard by a bench of five judges or seven. Dwivedi and Sanjay Parekh, another senior advocate, see merit in a larger bench hearing it given the conflicting judgements in Prem Nath Kaul and Sampat Prakash. Only a larger bench can review decisions rendered by five-judge benches, they point out.

Moreover, they argue, if the judges hear all arguments first and then refer the matter to a larger bench, further delay will ensue.

“I will be challenging one of the decisions rendered by a five-judge bench. If I succeed in persuading the judges of my stand, then I would be happy if the matter was referred to a larger bench. However, I don’t have an issue if the current bench hears this matter too,” Parekh said.

Arguments made so far

Compared to day one, today’s hearing was relatively free of drama. Barring a brief exchange where the bench jokingly accused Dhavan of getting everybody’s blood pressure up, the hearing was largely devoted to constitutional arguments.

Ramachandran continued his submission from the past two days, arguing why the Parliament could not revoke Jammu and Kashmir’s special status, and how the move would cause an irreversible change in the federal relationship between a state and the Union.

“The proposal to alter Article 370 must emanate from the people of Jammu Kashmir,” he argued on the first day. “Whether using the temporary, ameliorative and restorative power of President’s Rule, an irreversible change can be brought about in the federal relationship between a state of the Union and the Union? Under a legal fiction created by Article 356, without any participation of the popularly elected republic government in the state, altering its identity and splitting it into two Union Territories? When Article 370 itself prescribes the mechanism for alteration of that relationship, can that mechanism be flouted?” 

According to the provisions of the law, the constitutional arrangement described in Article 370 could not be changed by the legislature of Jammu and Kashmir, only its Constituent Assembly. On the second day, one of the points he argued was that a Union Territory can be carved out of a state but it cannot take away the distinguishing aspect of the state.