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Journalism of Courage
The Supreme Court is set to hear on July 11 a batch of nearly 23 petitions challenging the Centre’s decision to abrogate Article 370 of the Constitution, which had given special status to Jammu and Kashmir.
A five-judge Bench headed by CJI Chandrachud will be hearing the pleas alongside Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. Notably, the court’s decision to consider these pleas comes almost four years after the erstwhile state of Jammu and Kashmir was reconstituted into the two Union Territories of J&K and Ladakh on August 5, 2019.
What are the issues involved this time?
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.
Additionally, this order said 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.
Meanwhile, 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.
Apart from this, a few petitions also challenge the constitutional validity of Articles 370 and 35A.
However, this is not the first time that the top court has said it will consider this issue. In December last year, a bench of CJI DY Chandrachud and Justice PS Narasimha said, “We will examine and give a date,” when intervenor Radha Kumar, who is an academic and author, sought early listing of the petitions.
What is the status of these petitions?
Last year, on April 25 and September 23, a Constitution Bench headed by the then CJI NV Ramana also agreed to list for hearing the pleas challenging the Centre’s decision to abrogate provisions of Article 370 after they were referred to it by erstwhile CJI Ranjan Gogoi.
However, now the apex court will have to reconstitute a five-judge bench to hear the pleas as ex-CJI Ramana and Justice R Subhash Reddy, who were part of the earlier Constitution Bench that had heard the pleas, have now retired.
Besides these two judges, Justices Sanjay Kishan Kaul, BR Gavai, and Surya Kant, who are currently part of the five-judge bench on March 2, 2020, declined to refer the matter to a larger seven-judge bench.
However, some of the petitioners contended that due to clashing opinions between two SC decisions delivered by five-judge benches on Article 370’s nature and extent in its 1959 and 1970 rulings in “Prem Nath Kaul versus Jammu and Kashmir” and “Sampat Prakash versus Jammu and Kashmir,” respectively, a seven-judge Bench must consider the issue anew.
