Chief Justice of India U.U. Lalit on September 23, 2022 indicated that the court may take up the challenge to the abrogation of Article 370 of the Constitution, which deprived Jammu and Kashmir of its special privileges and led to the bifurcation of the State in 2019.
Responding to an oral mentioning, the CJI said the case would be listed after October 10.
The Article 370 case has been pending in the Supreme Court for over two years even as a separate challenge has been filed against the Centre’s decision to appoint a Delimitation Commission to redraw Lok Sabha and Assembly constituencies of the Union Territory of Jammu and Kashmir.
The case had not come up after a five-judge Bench refused to refer the petitions to a larger Bench in March 2020. The case had since been mentioned several times for early hearing.
The petitions have challenged a Presidential Order of August 5, 2019 which blunted Article 370. The Article had accorded special rights and privileges to the people of Jammu and Kashmir since 1954 in accordance with the Instrument of Accession. The special status was bestowed on Jammu and Kashmir 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. The Parliament was not consulted when the President incorporated Article 35A into the Constitution through a Presidential Order issued under Article 370.
Following the abrogation, the Jammu and Kashmir (Reorganisation) Act of 2019 came into force and bifurcated the State of Jammu and Kashmir into two Union Territories of Jammu and Kashmir and Ladakh. In a day, Jammu and Kashmir had lost its full Statehood and became a Union Territory of the Central government. The move had been preceded by a state of lockdown in the Valley.
The various petitions have challenged 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".
They have 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".
Separate petitions have contended that the August 5 Order and the Jammu and Kashmir Reorganisation Act of 2019 were arbitrary. They have also challenged the proclamation of President's Rule in the State in December 2018.
The petitions have said what happened to Jammu and Kashmir "goes to the heart of Indian federalism". Thay argue that the Presidential Order of August 5 substituted the concurrence of the Governor 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 have argued that the August 5 Order used 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 extension of constitutional provisions to the State in an incremental and 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 have alleged.
The government has countered that the Presidential Order of August 5 has become 'fait accompli'.
The government had urged the court to not entertain any “separatist” arguments during the hearing of petitions challenging the August 5 order and the subsequent reorganisation of the State of Jammu and Kashmir into two Union Territories.
