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Nearly four years after the abrogation of Article 370, the Supreme Court (SC) has issued a notice that it will hear a batch of petitions challenging the decision made by the government in 2019 on a day-to-day basis starting August 2. Chief Justice of India (CJI) D Y Chandrachud will head the Constitution bench. On Tuesday, July 11, the CJI-led bench took up the matter and said it would hear the case on a day-to-day basis (except Mondays and Fridays), with the first hearing scheduled on August 2.
The cause is titled: Shah Faesal and Others vs Union of India and Another.
It must be noted that Shah Faesal withdrew their plea as of July 11.
It must be noted that Shah Faesal withdrew their plea as of July 11.
Along with CJI D Y Chandrachud, the bench will include Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, according to a report by Bar and Bench. During a previous listing of the case in March 2020, a five-judge constitution bench of the SC decided against referring the batch of petitions to a larger seven-judge constitution bench, despite some petitioners seeking a reference. However, the five-judge bench handling the case determined that there was no conflict between the two judgments and therefore declined to refer the matter to a larger bench. These petitions were also mentioned before a bench led by the CJI in February this year.
What is Article 370?
Article 370 was a key provision in the Indian Constitution that granted special status to the former state of Jammu and Kashmir. In March 1948, the then Maharaja of Kashmir, Hari Singh had, appointed an interim government in the state, with Sheikh Abdullah as prime minister. In July 1949, Sheikh Abdullah and three other colleagues joined the Indian Constituent Assembly and subsequently negotiated the special status of Jammu and Kashmir. This led to the adoption of Article 370, which was enacted in the same year. It provided some autonomy to Jammu and Kashmir, such as allowing the state to have its own constitution, a separate flag, and limited jurisdiction for the Indian government.
There was a provision in the article under Article 370(1)(c) stating that Article 1 of the Indian Constitution applies to Kashmir through Article 370. Article 1 lists the states of the Union. This means that it is Article 370 that binds the state of Jammu & Kashmir to the Indian Union. Although Article 370 can be removed through a Presidential Order, it would render the state independent of India unless new overriding laws were made.
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Abrogation of Article 370
On August 5, 2019, the government of India, under Prime Minister Narendra Modi, decided to abrogate Article 370, Jammu and Kashmir's special status, through a presidential order. This move was accompanied by a proposal to bifurcate the state of Jammu and Kashmir into two separate Union Territories: Jammu and Kashmir and Ladakh. The Union Territory of Jammu and Kashmir would have a legislature, while Ladakh would be without one. The abrogation of Article 370 and the reorganisation of Jammu and Kashmir into Union Territories took effect on October 31, 2019. Since then, the region has witnessed significant changes in governance, administration, and socio-political dynamics. The full implications and consequences of the abrogation are still evolving, and its impact on the region continues to be a subject of debate and discussion.
Why did the government decide to abrogate Article 370?
The decision to abrogate Article 370 was based on the government's belief that it hindered the integration of Jammu and Kashmir with the rest of India and limited the region's development. Supporters of the abrogation argued that it would help bring socio-economic development, promote equal rights and opportunities, and ensure better governance in the region. They also contended that it would facilitate the application of national laws and programs, which were previously not fully applicable in Jammu and Kashmir.
Critics of the abrogation raised concerns about the decision's impact on the special status and identity of Jammu and Kashmir, as well as its potential implications for the region's autonomy and demographic composition. There were debates about the constitutional validity of the move, with legal challenges brought before the SC.
Petitions filed
There are a total of 23 petitions in the Supreme Court on this issue that the SC will hear in the coming week.
The petitions have been filed by advocates, activists, politicians, journalists, and even retired civil servants.
Petitioners are not only against the abrogation of Article 370 but have also filed pleas against the reorganisation of Jammu and Kashmir into Union Territories.
A report by The Indian Express noted the following people who have filed petitions include: Advocates M L Sharma, Soayib Qureshi, Muzzafar Iqbal Khan, Rifat Ara Butt, and Shakir Shabir; National Conference Lok Sabha MPs Mohammad Akbar Lone and Hasnain Masoodi, CPI(M) leader Mohammed Yousuf Tarigami, the Jammu and Kashmir Peoples Conference, Kashmiri artist Inder Salim, journalist Satish Jacob, Radha Kumar (a former member of the Home Ministry's Group of Interlocutors for J&K), Hindal Haidar Tyabji (former Chief Secretary of J&K, retired Air Vice Marshal) Kapil Kak (retired Major General Ashok Kumar Mehta), Amitabha Pande (former Secretary to the Inter-State Council of the government), and Gopal Pillai (former Union Home Secretary), activist Shehla Rashid, the People's Union for Civil Liberties, the Jammu and Kashmir Bar Association and of course former IAS officer Shah Faesal.
IAS officer Shah Faesal and Shehla Rashid Shora, two petitioners requested to withdraw their petitions ahead of the hearings.
IAS officer Shah Faesal and Shehla Rashid Shora, two petitioners requested to withdraw their petitions ahead of the hearings.
Five- vs seven-judge bench
On March 2, 2020, petitioners requested that a bench consisting of seven or more judges be appointed for the hearings as opposed to the five-judge bench that is currently in place.
According to the Supreme Court Observer, Senior Advocates Dinesh Dwivedi and Sanjay Parikh argued that two previous Supreme Court judgments that had the same bench strength ended with conflicting judgments with one another. The advocates argued that 'Sampat Prakash versus Jammu and Kashmir' in 1970 ignored essential observations made in 'Prem Nath Kaul versus Jammu and Kashmir' in 1959.
According to the Prem Nath Kaul verdict, the Parliamentary and Presidential powers under Article 370 were subject to the final decision of the Jammu and Kashmir Constituent Assembly. Once the Assembly was dissolved, these powers could not be exercised.
However, Sampat Prakash approved a Presidential order under Article 370 after the dissolution of the Jammu and Kashmir Constituent Assembly.
However, the five-judge bench hearing the arguments did not agree with these statements. The Court had pointed out that Prem Nath Kaul needed to be read in light of its context. Moreover, these observations were made after India's constitution came into force but before the Jammu and Kashmir Constitution was formulated. To put it simply, both had different contexts, and there was a "fundamental difference in circumstances," the report added.
Therefore, this request was rejected, and it was decided that a five-judge bench would hear the petitioners. This argument has not been brought up since.
