New Delhi: Senior advocate Arvind Datar on Friday said that if there is a “considerable delay” in disposal of a petition, it becomes difficult to “set back the clock”. Datar a digital book ‘Hameen ast? A Biography of Article 370’, by Navi Books.
Navi Books is an open access digital book publishing platform from Vidhi Center for Legal Policy.
Other panelists who participated in the brief discussion after the launch were former Chief Information Commissioner Wajahat Habibullah and Mridu Rai, author and professor, Presidency University, Kolkata.
Araghya Sengupta, Founding Director of Vidhi conducted the panel discussion.
The book’s release coincides with the third anniversary of the abrogation of Article 370 – the constitutional provision that granted special status to the erstwhile state of Jammu and Kashmir – by the ruling Bharatiya Janata Party government. After its abolition in 2019, Jammu and Kashmir was stripped of its statehood and bifurcated into two union territories – the union territories of Jammu and Kashmir and Ladakh.
Datar made his remarks when Rai, speaking on the cancellation and how residents of the Valley have been left “horrified”, wonder whether the top court will “try to turn back the clock” by setting aside the cancellation.
Responding to Rai’s concerns and participants’ questions, Datar said: “Suppose there are significant delays in petition filing and final disposal, it becomes difficult, if not impossible, to set back the clock. You can probably do it technically but how much it can be done practically is a question,
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constitutional or unconstitutional
Datar further pointed out that it becomes more difficult to “withdraw” an executive decision not only in the context of Article 370 but also in the context of other sensitive issues.
Asked whether the method of scrapping the article was constitutionally correct or if its spirit was hurt, Datar said: “There can be different means of achieving the end. I clearly do not see any unconstitutionality. The Constituent Assembly is gone. Now suppose you want to conduct, once the assembly goes, there is no question of taking consent.
According to Datar, although the cancellation could have been done differently, there was nothing illegal in the way it was done. “The Constitution of Jammu and Kashmir was dissolved, so I don’t see how the removal of the amendment to Article 370 actually brought about any disastrous (sic) change,” he said.
He said, scholars may have seen the draft of Article 370 as asymmetric federalism, but over time, several orders were passed which did away with the asymmetry to a great extent.
Habibullah shared a different view on this. Even though the former CIC – who had worked as a bureaucrat in the Valley at the height of the separatist movement – acknowledged that Article 370 was a “bottleneck” as it deprived the residents of Jammu and Kashmir of benefits given to residents of other states. He said that the repeal should have followed a consultation process with the people.
“Article 370 was more offensive in actual facts than what happened in India. There was no need for Article 370, but you should have debated it to find easy ways to abrogate it,” Habibullah said.
Rai expressed his apprehension in the minds of the residents of the Valley after the repeal of the new laws and new laws that are to come into force there. This, he said, has raised the suspicion of many Kashmiris, and now is the time to be heard and consulted.
(Edited by Uttara Ramaswamy)
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