Chief Justice of India N.V. Ramana on Monday, April 25, 2022, said he would discuss with other judges and consider listing, after summer vacations, the petitions challenging the abrogation of Article 370 to strip the Jammu and Kashmir people of their special privileges which led to the bifurcation of the State.
“Let me see after the vacations… This is a five-judge Bench case… Let me also ask other judges,” the CJI addressed a group of senior advocates, including P. Chidambaram, Kapil Sibal and Shekhar Naphade.
Summer holidays begin from May 23 and the court reopens on July 11. Chief Justice Ramana retires on August 26
The senior advocates, in an oral mentioning before the CJI, said the Article 370 case had been pending in the Supreme Court for over two years even as a separate challenge has been filed against the Centre’s decision to appoint a Delimitation Commission to redraw Lok Sabha and Assembly constituencies of the Union Territory of Jammu and Kashmir.
“Let the case be listed immediately after the vacations,” Mr. Chidambaram urged.
The case had not come up after a five-judge Bench led by Justice (as he was then) Ramana, in an order in March 2020, refused to refer the petitions to a larger Bench. Since then, one of the judges on that Bench, Justice R. Subhash Reddy, has retired.
The petitions have challenged a Presidential Order of August 5, 2019 which blunted Article 370. The Article had accorded special rights and privileges to the people of Jammu and Kashmir since 1954 in accordance with the Instrument of Accession. The special status was bestowed on Jammu and Kashmir by incorporating Article 35A in the Constitution. 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.
Following the abrogation, the Jammu and Kashmir (Reorganisation) Act of 2019 came into force and bifurcated the State of Jammu and Kashmir into two Union Territories of Jammu and Kashmir and Ladakh. In a day, Jammu and Kashmir had lost its full Statehood and became a Union Territory of the Central government. The move had been preceded by a state of lockdown in the Valley.
The various petitions, including ones by advocate M.L. Sharma and the National Conference (NC) party, 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".
They have questioned the Centre's sudden move to "unilaterally unravel the unique federal scheme, under cover of President’s Rule, while undermining crucial elements of due process and the rule of law".
A separate petition by detained politician Shah Faesal and Shehla Rashid Shora, among others, have contended that the August 5 Order and the Jammu and Kashmir Reorganisation Act of 2019 were arbitrary. They had also challenged the proclamation of President's Rule in the State in December 2018.
The petitions said what happened to Jammu and Kashmir "goes to the heart of Indian federalism".
"National integration is best served by a pluralistic federal model. Under this model, one size need not always fit all," the petition filed by the NC said.
The petitions said 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.
They said 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.
They have argued that the August 5 Order used Article 370 to demolish Article 370. It amounted to the overnight abrogation 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 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, the petitions have alleged.
The government has countered that the Presidential Order of August 5 has become 'fait accompli'.
The government urged the court to not entertain any “separatist” arguments during the hearing of petitions challenging the August 5 order and the subsequent reorganisation of the State of Jammu and Kashmir into two Union Territories.
