SC to hear from Nov 14 pleas challenging constitutional validity of abrogation of Article 370

New Delhi: The Supreme Court Tuesday fixed November 14 to commence hearing on a batch of pleas challenging the constitutional validity of the Centre's decision to abrogate the provisions of Article 370, which gave special status to Jammu and Kashmir. The apex court ruled out the plea that there was a need for the status quo as the state of Jammu and Kashmir would be bifurcated into two Union Territories on October 31. "If the petitions are allowed, can't the clock be put back," said a 5-judge Constitution bench headed by Justice N V Ramana.

The top court also refused the plea of the petitioners that the Centre and the Jammu and Kashmir administration should not be given more than two weeks to file their counter-affidavits. It allowed four weeks to the Centre and the J&K administration to file counter-affidavits on the petitions and also put an embargo on filing of any fresh writ petition challenging the constitutional validity on abrogation of Article 370. The bench said that it has to give a "reasonable time" to the Centre and J&K administration to file their affidavits as it is necessary that pleadings are completed so that the hearing could commence.

"We have to allow the Centre and the J&K administration to file counter-affidavit otherwise we can't decide the matter," said the bench, also comprising justices S K Kaul, R Subhash Reddy, B R Gavai and Surya Kant. The top court said that after the filing of the counter-affidavits, the petitioners would file replies on them within a week thereafter. "We can't have an unending process of filing of writ petitions in the matter. Whatever has been filed, has already been filed. It (filing of fresh petitions) must stop," the bench said, adding, "We have to give them (Centre and J&K) a reasonable time to file their counters." The bench also told advocates representing the petitioners raising objections to Attorney General K K Venugopal, seeking four weeks to file counter affidavit, that "it is unreasonable to think that any decision or order will be passed before October 31".

The petitioners submitted that under the new legislation, J&K would become two separate UTs on October 31 and thus there was a need for an urgent hearing as also granting status quo. Venugopal, who was appearing for the Centre, and Solicitor General Tushar Mehta and advocate Shashi Juneja, representing J&K, submitted that they needed four weeks to file counter-affidavits to 10 writ petitions and averments are different in each of them as the time frame sought by them was "realistic". When senior advocate Raju Ramachandran, appearing for one of the petitioners, raised an objection to the submissions of the top law officers, the bench said, "In this type of matter, how can we proceed without counter-affidavits being filed?" While refusing the petitioners' submission that the Centre and J&K would have filed their replies in pursuance of the August 28 hearing, the bench said, "We have to allow the government to file the counter-affidavits".

When the petitioners' counsels were insisting that enough time was with the Centre and J&K to file counter-affidavits, the bench said, "In these matters, we cannot go ahead without the filing of counter-affidavits." At the outset, the hearing witnessed raking up of writ petitions filed before the Centre decided to scrap provisions of Article 370 on August 5. Some of the petitioners said that they have filed pleas challenging the existence of provisions of Articles 370 and 35-A according to special status to J&K before the Centre came out with the decision to abrogate them. The bench called registrar (judicial) Surya Pratap Singh and asked him to verify pending petitions on the subject and inform it.

When some of the advocates sought intervention in the matter, the bench said, "If everybody wants to file writ petitions, there will be one lakh petitions. It will not work. Please don't try to do this. This will unnecessarily delay the matter". The bench also pulled up advocate M L Sharma, who was first to file the writ petition, a day after the Centre's decision. The bench said there was nothing in his petition and it was without any substance or ground. "You played the fastest finger first. That does not mean that you will be heard first. There is certainly nothing in your writ petition but because you came within 72 hours of the Centre's decision, does it mean we have to hear you first," the bench told Sharma.

Several political parties including the National Conference (NC), the Sajjad Lone-led J&K Peoples Conference and CPI (M) leader Mohd Yousuf Tarigami have filed pleas, challenging Centre's August 5 decision. The petition on behalf of NC was filed by Lok Sabha MPs Mohammad Akbar Lone and Justice (retd) Hasnain Masoodi. In 2015, Justice (retd) Masoodi had ruled that Article 370 was a permanent feature of the Constitution.

A plea was also filed by a group of former defence officers and bureaucrats -- professor Radha Kumar, ex-member of Home Ministry's Group of Interlocutors for J&K (2010-11), former J&K cadre IAS officer Hindal Haidar Tyabji, Air Vice Marshal (Retd) Kapil Kak, Major Gen. (retd) Ashok Kumar Mehta, ex-Punjab-cadre IAS officer Amitabha Pande and ex-Kerala-cadre IAS officer Gopal Pillai. A plea has also been filed by bureaucrat-turned-politician Shah Faesal, along with his party colleague Shehla Rashid.