The Supreme Court on Wednesday referred to a five-judge Bench petitions challenging the abrogation of Article 370 and bifurcation of the State of Jammu and Kashmir into two Union Territories.
A Presidential Order on August 5 blunted Article 370, through which special rights and privileges were accorded to the people of the State since 1954 in accordance with the Instrument of Accession.
The special status was bestowed on the State by incorporating Article 35A in the Constitution. Article 35A was incorporated by an order of President Rajendra Prasad in 1954 on the advice of the Jawaharlal Nehru Cabinet. Parliament was not consulted when the President incorporated Article 35A through a Presidential Order issued under Article 370.
“Let all the petitions on the Article 370 issue go to a five-judge Bench for hearing,” Chief Justice of India Ranjan Gogoi, heading a three-judge Bench, said.
The order came amid fervent prayers by the government, represented by Attorney General K.K. Venugopal and Solicitor General Tushar Mehta, to exercise restraint as far as orders and oral observations on Jammu and Kashmir were concerned.
“The Article 370 issue has international and cross-border implications. Whatever statements made here are sent to the United Nations,” Mr. Venugopal seemed to caution.
“Does this mean the Supreme Court cannot do its duty?” senior advocate Ashwani Kumar, for one of the petitioners, asked Mr. Venugopal.
“We know our duties,” Chief Justice Gogoi told the lawyers, in a clipped manner.
The CJI indicated the Constitution Bench may start hearing the matter from the beginning of October.
Permission for Yechury
The three-judge Bench further allowed Sitaram Yechury, the general secretary of the Communist Party of India (Marxist), to visit the State to meet his party colleague M.Y. Tarigami.
Mr. Yechury, represented by senior advocate Raju Ramachandran, said he wanted to meet Mr. Tarigami as there was no news of him. He wanted to know about the welfare and whereabouts of his colleague.
Solicitor General Tushar Mehta protested that Mr. Tarigami’s health was monitored every day and “he is hale and hearty”.
“What can happen to him (Tarigami)? He is provided Z-category security,” Mr. Mehta objected to Mr. Yechury’s plea.
“Whether he has Z or Z Plus category, if a citizen wants to go and meet him, you have to let him,” Chief Justice Gogoi told Mr. Mehta.
Mr. Mehta said the government would make arrangements to escort Mr. Yechury. “You don’t escort, he (Yechury) will go on his own,” the Chief Justice retorted.
The Chief Justice also agreed to Mr. Ramachandran’s assurance that Mr. Yechury would give an undertaking to limit his trip to J&K only to meet Mr. Tarigami and not travel around.
“If he does that, you report back to us,” the Chief Justice told Mr. Mehta.
The court also decided not to sit on the fence any more and issued notice to the government on the basis of several petitions challenging media restrictions and information blackout in the State. He sought a response from the government within the next seven days.
In the past two hearings on pleas filed by Anuradha Bhasin and others, the court had adopted a wait-and-watch approach, expecting the situation to clear up enough for restoration of communications in the Valley.
The three-judge Bench had assembled for a special session to examine the dozen writ petitions dealing with the various issues triggered by the abrogation of Article 370 and splitting of the State of Jammu and Kashmir into two Union Territories. Chief Justice said it had been difficult to juggle court schedule as Ayodhya appeals were being continuously heard by a Constitution Bench led by him.
The various petitions include one by the National Conference party challenging the Centre’s “unilateral” move to impose curfew and unravel the unique federal structure of India by dividing Jammu and Kashmir “without taking consent from the people,” a plea by Mohammed Aleem Sayed, a young lawyer worried about his aged parents in the Valley, and by Ms. Bhasin, an editor with Kashmir Times, who is fighting to free the press from the hold of the authorities.
A petition filed by detained politician Shah Faesal and Shehla Rashid Shora contended the August 5 Presidential Order and the Jammu and Kashmir Reorganisation Act of 2019 were arbitrary. They also challenged the proclamation of President’s Rule in the State in December 2018.
The three-judge Bench allowed Mr. Sayed to meet his parents. It asked the State to provide him adequate protection. The court took up his case first.
A state of curfew was imposed in the entire Valley on August 4. The people of the State were isolated with no means of communication when a Presidential Order was issued on August 5, which deprived Jammu and Kashmir of its special rights and privileges. A new law was also passed, dividing the State into two Union Territories of Jammu and Kashmir and Ladakh. In a day, Jammu and Kashmir lost its full Statehood and became a Union Territory of the Central government.
Ms. Bhasin said there had been a clampdown on free speech since August 4. Her petition sought a relaxation of restrictions and to allow journalists “to practise their profession and exercise their right to report freely on the situation prevailing in J&K after clampdown on the entire State on August 4, 2019”.
Ms. Basin, represented by senior lawyer Vrinda Grover, described the ground situation as that of “absolute and complete Internet and telecommunication shutdown, severe restrictions on mobility and sweeping curtailment on information sharing in the Kashmir valley, at a time when significant political and constitutional changes are being undertaken in Delhi to the status of J&K”.
She said the information blackout was “fuelling anxiety, panic, alarm, insecurity and fear among the residents of the Kashmir”.
Petitions challenging the abrogation of Article 370 by the Centre questioned the Centre’s sudden move to “unilaterally unravel the unique federal scheme, under cover of President’s Rule, while undermining crucial elements of due process and the rule of law”.
They said what happened to Jammu and Kashmir “goes to the heart of Indian federalism”.
“National integration is best served by a pluralistic federal model. Under this model, one size need not always fit all,” the petition filed by the NC said.
The petitions said the Presidential Order of August 5 substituted the concurrence of the Governor for that of the State government to change the very character of a federal unit.
They said the Presidential Order took cover of a temporary situation, meant to hold the field until the return of the elected government, to accomplish a fundamental, permanent and irreversible alteration of the status of the State of Jammu and Kashmir without the concurrence, consultation or recommendation of the people of that State, acting through their elected representatives.
They argued that the August 5 Order used Article 370 to demolish Article 370. It amounted to the overnight abrogation of the democratic rights and freedoms guaranteed to the people of Jammu and Kashmir upon its accession.
The basic purpose of Article 370 was to facilitate the the extension of constitutional provisions to the State in an incremental an orderly manner, based upon the needs and requirements, without dismantling the State Constitution.
The August 5 Order, by replacing the recommendation of the ‘Constituent Assembly’ with that of the ‘Legislative Assembly’ in order to alter the terms of Article 370, assumed that the Legislative Assembly of the State of Jammu and Kashmir had a power that its own Constitution, under Article 147, denied to it. Thus, the August 5 Order was ineffective, the petitions alleged.
Kashmir: Five-judge Supreme Court Bench to hear pleas challenging abrogation of Article 370 – The Hindu