Srinagar, July 3: The Supreme Court will take up for hearing a batch of petitions on July 11 challenging the abrogation of Article 370 and the bifurcation of the erstwhile state of Jammu and Kashmir into two Union territories by the NDA government in August 2019.
According to a notice, the five-judge constitutional bench led by Chief Justice of India (CJI) Justice D Y Chandrachud will take up the matter for hearing. Other members of the bench are Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant.
Over 20 petitions have been filed before the apex court challenging the constitutional validity of the Centre's decision to abrogate Article 370.
The case has been pending before the Supreme Court for nearly four years now. The matter had not come up for consideration after a five-judge Bench refused to refer it to a larger Bench in March 2020. The case had since been mentioned several times for early hearing. The petitions challenge the Presidential Orders of August 5–6, 2019, as well as The Jammu and Kashmir Reorganisation Act, 2019.
The August 5 order titled Constitution (Application to Jammu and Kashmir) Order, 2019, was passed in exercise of the power under Article 370(1)(d) of the Constitution, superseding the 1954 Presidential Order that introduced Article 35A, which empowered the state of J&K to define who is a permanent resident and make special laws for them.
Moreover, this order indicated that the provisions of the Indian Constitution shall apply to J&K and that references to the Sadr-i-Riyasat and the Government of J&K will be construed as references to the J&K Governor acting on the advice of his Council of Ministers. Moreover, any reference to the Constituent Assembly of J&K shall be construed as a reference to its Legislative Assembly.
The August 6 order revoked the special status granted to J&K under Article 370. Besides this, the J&K Reorganisation Act of 2019 reorganized the state of J&K into two different UTs and is also being challenged. Article 35A was incorporated by an order of President Rajendra Prasad in 1954 on the advice of the Jawaharlal Nehru Cabinet. The Parliament was not consulted when the President incorporated Article 35A into the Constitution through a Presidential Order issued under Article 370.
The petitions pending disposal before the Supreme Court have challenged the Centre’s “unilateral” move to impose curfew and unravel the unique federal structure of India by dividing Jammu and Kashmir “without taking consent from the people”.
In these petitions, it has been contended that the August 5 Order and the Jammu and Kashmir Reorganisation Act of 2019 were arbitrary. The petitions have also challenged the proclamation of President’s Rule in the State in December 2018.
It has been contended that the Presidential Order of August 5 substituted the concurrence of the Governor of the State government to change the very character of a federal unit.
The petitions underscore that the Presidential Order took cover of a temporary situation, meant to hold the field until the return of the elected government, to accomplish a fundamental, permanent and irreversible alteration of the status of the State of Jammu and Kashmir without the concurrence, consultation or recommendation of the people of that State, acting through their elected representatives.
While the petitioners contended that the August 5 Order used Article 370 to demolish Article 370, they said the same amounted to the overnight removal of the democratic rights and freedoms guaranteed to the people of Jammu and Kashmir upon its accession.
“The basic purpose of Article 370 was to facilitate the extension of constitutional provisions to the State in an incremental and orderly manner, based upon the needs and requirements, without dismantling the State Constitution”
The petitions contend that the August 5 Order, by replacing the recommendation of the ‘Constituent Assembly’ with that of the ‘Legislative Assembly’ in order to alter the terms of Article 370, assumed that the Legislative Assembly of the State of Jammu and Kashmir had a power that its own Constitution, under Article 147, denied to it. “Thus, the August 5 Order was ineffective”