5-judge Constitution Bench begins hearing on petitions challenging constitutional validity of nullification of Article 370

Tribune News Service

Satya Prakash

New Delhi, August 2

A five-judge Constitution Bench led by Chief Justice of India DY Chandrachud on Wednesday commenced hearing on petitions challenging the constitutional validity of the nullification of Article 370 of the Constitution and bifurcation of the state into Union territories.

The case is being heard by the five senior-most judges of the Supreme Court. Besides the CJI, the other four judges on the Constitution Bench are Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant.

Opening arguments on behalf of the petitioners, Sibal termed the hearing as “historic”.

"This is a historic moment in many ways. This court will be analysing why history was tossed out on August 6, 2019 and whether procedure adopted by Parliament was consistent with what democracy stands for. Whether the will of Jammu and Kashmir people can be silenced,” Sibal said.

"It is historic because it has taken five years for this court to hear this case and for five years there has been no representative government there. This Article (370) which sought to restore democracy...it has been decimated and can that be done?" he went on.

"Whether the Governor of a state could have on June 28, 2018 decided to keep the assembly under suspension without even trying to find out if a government could be formed. Whether dissolution of assembly could have taken place on June 21, 2018 before using Article 356. These issues were never raised or decided and that's why this is a historic hearing," Sibal argued.

Sibal – who has been allotted 10 hours for his oral submissions -- delved into the historical background of accession of Jammu and Kashmir into the Indian Union.

The hearing is expected to go on for several days.

There are more than 20 petitions challenging the Presidential Orders nullifying Article 370 and Article 35A of the Constitution; and bifurcation of Jammu and Kashmir into Union territories – Jammu and Kashmir; and Ladakh. They wanted the top court to declare the August 5 Presidential Orders "unconstitutional, void and inoperative".

The Jammu and Kashmir Reorganisation Act, 2019, which divided the state into two union territories has already been acted upon. The changes came into effect on October 31, 2019 after being notified in the official gazette.

Since then, a delimitation exercise has been completed in the UT of Jammu and Kashmir and the number of seats increased from 83 to 90 (excluding 24 seats in Pakistan Occupied Kashmir).

The petitioners include Delhi-based advocate ML Sharma, Jammu and Kashmir-based lawyer Shakir Shabir, National Conference Lok Sabha MPs Mohammad Akbar Lone and Justice Hasnain Masoodi (retd), former interlocutor for Jammu and Kashmir Radha Kumar, Air Vice Marshal Kapil Kak (retd), Major General Ashok Mehta (retd), and former IAS officers Hindal Haidar Tyabji, Amitabha Pande and Gopal Pillai. 

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