On Monday, April 25, 2022, Chief Justice of India N.V. Ramana stated that he would consult with other judges and consider listing the petitions challenging the revocation of Article 370 in order to deprive the people of Jammu and Kashmir of their special privileges, resulting in the state’s bifurcation.
Let’s see what happens after the holidays… This is a case before a five-judge panel… “Let me also ask other judges,” the CJI said to a group of senior lawyers, including Justice Chidambaram, Kapil Sibal, and Shekhar Naphade.
Summer vacation begins on May 23, with the court reopening on July 11. Chief Justice Ramana will step down on August 26.
In an oral argument before the CJI, the senior advocates stated that the Article 370 case had been pending in the Supreme Court for over two years, despite the fact that a separate challenge had been filed against the Centre’s decision to appoint a Delimitation Commission to redraw Lok Sabha and Assembly constituencies in the Union Territory of Jammu and Kashmir.
“Let the case be listed as soon as the vacations are over,” Mr. Chidambaram pleaded
The case had not been heard since a five-judge Bench led by Justice (as he was then) Ramana refused to refer the petitions to a larger Bench in an order issued in March 2020. Since then, Justice R. Subhash Reddy, one of the judges on that Bench, has retired.
The petitions were filed in response to a Presidential Order issued on August 5, 2019, that weakened Article 370. In accordance with the Instrument of Accession, the Article had granted special rights and privileges to the people of Jammu and Kashmir since 1954.
Jammu and Kashmir were granted special status by incorporating Article 35A into the Constitution. On the advice of the Jawaharlal Nehru Cabinet, President Rajendra Prasad enacted Article 35A in 1954. When the President incorporated Article 35A into the Constitution via a Presidential Order issued under Article 370, the Parliament was not consulted.
Following the repeal, the Jammu and Kashmir (Reorganisation) Act of 2019 took effect, dividing the state of Jammu and Kashmir into two Union Territories, Jammu and Kashmir and Ladakh. Jammu and Kashmir lost its full statehood in a single day, becoming a Union Territory of the Central Government. The Valley had been placed under lockdown in the days leading up to the relocation.
The various petitions, including those filed by advocate M.L. Sharma and the National Conference (NC) party, have questioned the Centre’s “unilateral” decision to impose curfew and undermine India’s unique federal structure by dividing Jammu and Kashmir “without seeking the people’s consent.”
They have questioned the Centre’s sudden decision to “unilaterally unravel the unique federal scheme under the guise of President’s Rule while undermining critical elements of due process and the rule of law.”
Separately, detained politicians Shah Faesal and Shehla Rashid Shora, among others, claimed that the August 5 Order and the Jammu and Kashmir Reorganisation Act of 2019 were arbitrary. They had also challenged the State’s proclamation of President’s Rule in December 2018.
According to the petitions, what happened in Jammu and Kashmir “cuts to the heart of Indian federalism.”
A pluralistic federal model is best suited to national integration. “Under this model, one size does not always have to fit all,” the NC petition stated.
According to the petitions, the Presidential Order of August 5 substituted the consent of the Governor of the State government to change the very nature of representatives
They claimed that the Presidential Order used a temporary situation, intended to hold the field until the return of the elected government, to achieve a fundamental, permanent, and irreversible change in the status of the State of Jammu and Kashmir without the consent, consultation, or recommendation of the people of that State acting through their elected representatives.
They claim that the Order of August 5 used Article 370 to demolish Article 370. It amounted to the abolition of the democratic rights and liberties guaranteed to the people of Jammu and Kashmir upon their accession.
The primary goal of Article 370 was to facilitate the incremental and orderly extension of constitutional provisions to the State based on needs and requirements, without dismantling the State Constitution.
The August 5 Order assumed that the legislative assembly of the State of Jammu and Kashmir had power that its own Constitution, under Article 147, denied it by replacing the recommendation of the ‘Constituent Assembly’ with that of the ‘Legislative Assembly’ in order to change the terms of Article 370. As a result, the petitions claim that the August 5 Order was rendered ineffective.
The government has responded that the Presidential Order of August 5 has become a “fait accompli.”
The government urged the court not to hear any “separatist” arguments during the hearing of petitions challenging the August 5 order and the subsequent reorganization of the state of Jammu and Kashmir into two Union Territories.