The Supreme Court of India on Friday said it would list petitions challenging the scrapping of provisions of Article 370 after Dussehra vacation.
On August 5 2019, the Narendra Modi's Union government scrapped provisions of the Article 370 of the Constitution of India that gave special status to Jammu and Kashmir (J&K). The Modi government also bifurcated J&K into two Union territories — 1) Jammu and Kashmir 2) Ladakh. A number of petitions were filed challenging its constitutional validity.
A Supreme Court bench comprising Chief Justice UU Lalit and Justices Indira Banerjee and S Ravindra Bhat took note of the submissions of a counsel that the pleas were assured to be listed after the summer vacation but they could not be listed.
"We will certainly list that," said CJI Lalit.
On April 25 this year, a bench headed by the then-CJI N V Ramana —since retired— had agreed to consider listing these pleas after the summer vacation. The pleas were then mentioned by interveners Radha Kumar —an academic and author— and Kapil Kak — a retired officer of the Indian Air Force.
The Supreme Court will have to re-constitute a five-judge bench to hear the pleas after Dussehra vacation as the ex-CJI Ramana and Justice R Subhash Reddy, who were part of the five judge bench which had heard the pleas, have since retired.
Besides Ramana and Reddy, Justices Sanjay Kishan Kaul, BR Gavai, and Surya Kant were part of the bench which, on March 2 2020, had declined to refer pleas to a larger seven-judge bench.
Non-governmental organisation People's Union of Civil Liberties (PUCL), Jammu and Kashmir High Court Bar Association, and an intervenor had sought referring of the matter to a larger bench on grounds that two judgements of the apex court —Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat Prakash versus Jammu and Kashmir in 1970— which dealt with the issue of Article 370 conflicted each other and therefore, the current bench of five judges could not hear the issue. Disagreeing with the petitioners, the bench had said it was of the opinion that "there is no conflict between the judgements".
There are multiple opinions on the legality of Modi government's scrapping of J&K's special status through the abrogation of provisions of Article 370.
SC Observer explains how the Modi government scrapped J&K's special status: "First, President Ram Nath Kovind issued presidential order CO 272 [on August 5 2019]. Article 370 could only be amended by the recommendation of the J&K Constituent Assembly. The presidential order (CO 272) allowed the Union to amend Article 370 without the recommendation of the Constituent Assembly. It did this by amending another part of the Constitution which explains how the Constitution should be interpreted (Article 367). The amendment made it such that the reference to the ‘Constituent Assembly’ in Article 370(3) became a reference to the ‘Legislative Assembly’.
"Since J&K was under President’s Rule at the time, the powers of the J&K Legislative Assembly were vested in the Union Parliament. So, a few hours after CO 272 was issued, the Rajya Sabha recommended the abrogation of Article 370, via a Statutory Resolution under Article 370(3).
"On August 6, President Kovind issued a Proclamation, CO 273, putting into effect the Rajya Sabha’s recommendation. All clauses of Article 370 ceased to operate, except clause 1 which was amended to state that the Constitution of India applies to the State of J&K."
(With PTI inputs)