SC sets up 5-judge Constitution Bench to hear pleas challenging Centre's move on Article 370

Justice N.V. Ramana to head the Constitution Bench

Updated - September 28, 2019 03:34 pm IST

Published - September 28, 2019 02:26 pm IST - New Delhi

NEW DELHI, 09/04/2013: Supreme Court of India in New Delhi on April 10,  2013. 
Photo: S. Subramanium

NEW DELHI, 09/04/2013: Supreme Court of India in New Delhi on April 10, 2013. Photo: S. Subramanium

A five-judge Bench led by Justice N.V. Ramana is learnt to have been formed to start hearing from October 1 petitions challenging the Centre's move render Article 370 inoperative that stripped Jammu and Kashmir people of their special privileges, which led to the bifurcation of the State to two union territories of Jammu and Kashmir, and Ladakh.

A Presidential Order on August 5 read down Article 370, through which special rights and privileges were given 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 by an order of President Rajendra Prasad in 1954 on the advice of the Jawaharlal Nehru Cabinet. Parliament was not consulted.

Chief Justice of India Ranjan Gogoi has also separately given the nod for the setting up of three other Special Benches, one of which will deal with death penalty cases. The composition of the Benches is not yet known.

Justice Ramana is the third senior-most judge of the Supreme Court. Both the CJI and Justice S.A. Bobde, the second senior-most judge of the apex court, are part of the Bench hearing the Ayodhya case, which is expected to continue till October 18 at least.

A three-judge Bench led by the CJI referred the Article 370 petitions to the Constitution Bench on August 28.

The various petitions include ones by advocate M.L. Sharma and the National Conference, which had 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.”

Restrictions were imposed in the entire Valley on August 4. A new law was also passed, dividing the State into two Union Territories.

The petitions have questioned the Centre’s sudden decision 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, has contended that the August 5 order and the Jammu and Kashmir Reorganisation Act of 2019 were arbitrary. They 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 National Conference said.

The petitions said the Presidential Order of August 5 substituted the concurrence of the Governor for that 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 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 alleged.

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