Supreme Court rolling back abrogation of Article 370 will be theoretical exercise but difficult practically: Arvind Datar

Even if the Supreme Court decides to roll back the abrogation of Article 370, it would be more of an academic and theoretical exercise and would be difficult from a practical standpoint, Senior Advocate Arvind Datar said on Friday.

Overturning a decision of the parliament which has been implemented by the executive is difficult with passage of time, he opined.

Datar was speaking as a panelist at the launch of a digital book ‘Hamīñ Ast? A Biography of Article 370’, by Navi Books, an open access digital book publishing platform of Vidhi Centre for Legal Policy.

After the launch, there was a short discussion amongst the panelists on the abrogation of Article 370 and the legality of the manner in which it was carried out.

Article 370, which conferred, special status on erstwhile State of Jammu and Kashmir was scrapped in August 2019 through a procedure which many have alleged to be unconstitutional.

The State was then reconstituted into two Union Territories - UT of Jammu & Kashmir and UT of Ladakh.

A slew of petitions challenging the manner in which the Article was scrapped, came to be filed before the Supreme Court but the top court is yet to hear the same.

During the discussion on Friday, co-panelist, Dr. Mridu Rai, professor at Presidency University of Kolkata mused whether Supreme Court would try to 'turn back the clock' by setting aside the abrogation.

To this, queries came from virtual participants including retired Supreme Court judge Justice BN Srikrishna.

"The doctrine of 'inability to turn the clock', does it not run against the rule of law, and allow things to be done by lapse of time," asked Justice Srikrishna.

Responding to the queries, Datar pointed out that a lot depended on how much time had elapsed from the filing of the petition to its ultimate disposal.

"Suppose there is considerable delay in the filing of the petition and the ultimate disposal, then it just becomes difficult if not impossible to set the clock back; and you can perhaps do it technically, but how far can it be done practically is a question. And this is going to come again and again not only in the context of the Article 370 but other sensitive issues as well. So this rolling back will become more and more difficult as the years go by," Datar explained.

He also added that considering the series of judgments passed by the top court on other issues stemming from the abrogation of Article 370, the Court seemed to be of the opinion that what happened was not drastic enough for the judiciary to intervene.

"As far as this issue is concerned, I don't think the challenge is really substantial. In the light of the series of Supreme Court judgements, what has happened is not so drastically wrong, that it is likely to be set aside. There are strong view points on both sides. But if you see the line of judgments from 1959 to 2019, generally what the parliament has done may not be open to challenge or struck down is my personal opinion. So this roll back theory is more of a theretical point, is what I am thinking right now" Datar said.

Along with Datar and Rai, the panel also included former Chief Informational Commissioner of India Wajahat Habibullah.

The discussion was being moderated by Dr. Arghya Sengupta, founder and director of Vidhi.

Habibullah said that having Article 370 did not prove to be a boon for people of Jammu & Kashmir and Ladakh as those regions did not develop at par with the other States of the country.

He however vehemently asserted that the manner in which the abrogation was brought about administratively, was not proper.

He opined that since the decision concerned the people of the State, the administration ought to have come up with a mechanism to take their opinion before coming to a decision.

Datar. however, maintained that the manner in which the abrogation was brought about was legal.

[Read live coverage of the event]