The Supreme Court sought the response of the Centre and the Jammu & Kashmir government to a bunch of petitions challenging the constitutional validity of two decisions - the presidential order scrapping the state’s special status under Article 370 and Parliament’s approval of a law splitting it into Union territories of J&K and Ladakh.
Deciding to refer the petitions to a five-judge Constitution bench which will hear the matter in October, a bench of Chief Justice Ranjan Gogoi and Justices S A Bobde and S Abdul Nazeer refused to reconsider its order on issuing a notice to the Centre. It brushed aside repeated pleas by attorney general K K Venugopal and solicitor general Tushar Mehta not to issue notice on the controversial issue.
“We will take a copy of the petitions and file our response. Please don’t issue notice. After the Centre files its response, the court can consider admissibility of these petitions. Issuance of notice on these petitions has cross-border ramifications. It will be immediately conveyed to international forums,” the top law officers said, but did not elaborate on whether the petitioners or the media could play mischief.
The CJI-led bench said given the importance of the issue, it was required to be adjudicated by a five-judge bench. The court asked the Centre to file its response and said the petitions will be taken up together for hearing in the first week of October - immediately after the SC concludes the day-to-day hearing on the Ayodhya dispute case.
By that time, the UN General Assembly, where Pakistan is likely to raise the issue, will be over while some relaxation in current restrictions in the state can be expected, possibly cooling the political heat somewhat. With the SC agreeing to test the constitutional validity of the August 5 presidential order - the Constitution (Application to Jammu & Kashmir) Order, 2019 which superseded the Constitution (Application to Jammu & Kashmir) Order, 1954 - as well as the addition of Clause 4 to Article 367 making the Constitution of India applicable to J&K - the matter has now become sub judice. Before its defanging, Article 370, which was supposed to be temporary, was the provision from which J&K derived its special status for 70 years.
The petitioners have also challenged the J&K (Reorganisation) Act, which received the President’s assent on August 9, bifurcating the state into a UT of J&K with a legislative assembly and a UT of Ladakh without one. They also challenged the validity of a declaration issued by the President on August 6, which read, “From August 6, 2019, all clauses of the said Article 370 shall cease to operate... and all provisions of this Constitution as amended from time to time, without any modification or exceptions, shall apply to the state of Jammu & Kashmir.”
The petitioners’ main argument was that the President did not have the power to change provisions of the Constitution, as applicable to J&K, and by hollowing out Article 370, the government had seriously wounded the federal character of governance in India.
They said any alteration of the provision providing special status to J&K could have been done only with the concurrence of the state assembly. However, the Union government took the concurrence of the governor, the state being under central rule, which amounted to the central government consulting itself.
“This amounts to an overnight abrogation of the democratic rights and freedoms guaranteed to the people of J&K upon its accession to the Indian Union,” the petitioners said, and argued that reorganisation of J&K is also unconstitutional as it downgraded a state into Uts.
The various petitions include one by the National Conference party challenging 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,” a plea by young lawyer Mohammed Aleem Sayed, worried about his aged parents in the Valley, and one by Ms. Bhasin, Editor of Kashmir Times, who is fighting to free the press from the hold of the authorities.
A petition filed by detained politician Shah Faesal and Shehla Rashid Shora contended that the August 5 Presidential 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.