Constitution Bench to hear pleas over change of J-K status from Oct 1

Satya Prakash
Tribune News Service
New Delhi, September 28

A five-judge Constitution Bench of the Supreme Court will hear from October 1 petitions challenging the change in constitutional status of Jammu and Kashmir following dilution of Article 370 and abrogation of Article 35A.

Chief Justice of India Ranjan Gogoi set up the Constitution Bench headed by Justice NV Ramana, which will also have Justice Sanjay Kishan Kaul, Justice R Subhash Reddy, Justice BR Gavai and Justice Surya Kant.

Article 370 and Article 35A together created a legal regime that discriminated against non-permanent residents of the state. But now Article 35A is completely gone while Article 370 stands considerably diluted, leading to end of the special status of the state.

A separate Bill enacted by Parliament bifurcated the state into two union territories -- Jammu and Kashmir and Ladakh.

While Jammu and Kashmir will have an assembly, Ladakh will not.

The Supreme Court had on August 28 referred petitions challenging Presidential Orders nullifying Article 370 of the Constitution and bifurcation of Jammu and Kashmir into two union territories to a five-judge Constitution Bench.

While issuing notices to the Centre and Jammu and Kashmir, a three-judge Bench headed by Chief Justice of India Ranjan Gogoi had said the matter would be heard in the first week of October.

The Jammu and Kashmir Reorganisation Act, 2019, which divided the state into two union territories – Jammu and Kashmir and Ladakh, has already been notified in the official gazette and would come into effect on October 31.

Attorney General KK Venugopal and Solicitor General Tushar Mehta had opposed issuance of notices, saying it would have cross-border implications as whatever was being said by the court would be sent to the United Nations. Other countries would take advantage of it at international forums on the issue of Kashmir, they said.

But the Bench overruled their objections. "We know what to do, we have passed the order, we are not going to change," the Bench which also included Justice SA Bobde and Justice SA Nazeer, had said.

There are several petitions challenging the Presidential Order nullifying Article 370, including those by Delhi-based advocate ML Sharma, Jammu and Kashmir-based lawyer Shakir Shabir, National Conference Lok Sabha MPs Mohammad AKbar Lone and Justice (Retd) Hasnain Masoodi, bureaucrat-turned-politician Shah Faesal and his party colleague Shehla Rashid.

There is another PIL filed by former interlocutor for Jammu and Kashmir Radha Kumar, Air Vice Marshal (Retd) Kapil Kak, Major General (Retd) Ashok Mehta, and former IAS officers Hindal Haidar Tyabji, Amitabha Pande and Gopal Pillai who have urged the top court to declare the August 5 Presidential Orders be declared "unconstitutional, void and inoperative".

The Constitution (Application to Jammu & Kashmir) Order, 2019, was introduced on August 5 to supersede the Constitution (Application to Jammu & Kashmir) Order, 1954 that talked about provisions of the Constitution of India that would not apply to Jammu and Kashmir.

The 2019 Presidential Order made it clear that all provisions of the Constitution of India shall apply to Jammu and Kashmir.

Article 370(3) conferred powers on the President to make the provision inoperative. But such a move required concurrence of the Jammu and Kashmir Constituent Assembly which ceased to exist in January 1957. The 2019 Presidential Order amended Article 367 to replace the reference to Constituent Assembly under Article 370(3) to mean Legislative Assembly.

It was after the August 5 Presidential Order that the Government introduced the Jammu and Kashmir Reorganisation Act, 2019 leading to bifurcation of the state into union territories of Jammu and Kashmir Ladakh.