Supreme Court to hear pleas on abrogation of Article 370: What you need to know

On 6 August 2019, the Narendra Modi-led government revoked the special status granted to the state of Jammu and Kashmir through the abrogation of Article 370 of the Constitution. On that fateful day, the state of Jammu and Kashmir was reconstituted into two Union Territories of J&K and Ladakh. Now, four years later, a five-judge bench headed by Chief Justice DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant will begin hearing a batch of petitions challenging the decision to abrogate Article 370 that had given special status to Jammu and Kashmir. While the Centre has defended the move, saying in its affidavit that the decision has led to an “unprecedented era of peace in Jammu and Kashmir and Ladakh, the petitioners say the move by the Government of India was “unilateral”, and did not have the “consent of the people of (J&K)”. As the matter comes up before the apex court, here’s a simple guide of the case – who are the petitioners, what are they contending and what has been the Centre’s stance. Who are the petitioners? The Supreme Court will begin hearing the matter after 23 different petitions have been filed, questioning the validity of the Centre’s move. The petitions have been filed by people from all walks of life – lawyers, activists, civil servants, politicians and even former military officials. The lead petition was filed by bureaucrat Shah Faesal , who resigned from the Indian Administrative Services (IAS) in 2018 and protested the revocation of special status to Jammu and Kashmir. He then rejoined and was appointed as deputy secretary in the Ministry of Culture. Faesal, as per a report in The Hindu, has moved an application seeking a withdrawal of his petition. Others who have filed their pleas in this case are advocates ML Sharma, Soayib Qureshi, Muzzafar Iqbal Khan, Rifat Ara Butt, and Shakir Shabir, National Conference Lok Sabha MPs Mohammad Akbar Lone and Hasnain Masoodi, Communist Party of India(Marxist) leader Mohammed Yousuf Tarigami, activist Shehla Rashid, Kashmiri artist Inderjit Tickoo alias Inder Salim and veteran journalist Satish Jacob. Former Air Vice Marshal Kapil Kak, Major General (retired) Ashok Mehta, former IAS officers Hindal Haidar Tyabji, Amitabha Pande, and Gopal Pillai have also challenged the Presidential Order which abrogated Article 370. Associations and political parties such as the People’s Union for Civil Liberties, the Jammu and Kashmir Bar Association, and the Jammu and Kashmir People’s Conference had also moved the Supreme Court. What are their contentions? The petitioners are challenging the Presidential Orders of 5-6 August, 2019 and also the Jammu and Kashmir Reorganisation Act, 2019. They state that these were “unconstitutional, void and inoperative.” To understand this, let’s look at how Article 370 was initially revoked. On 5 August 2019, then President Ram Nath Kovind under Article 370(1), promulgated the Constitution (Application to Jammu and Kashmir) Order, 2019 (CO 272), thereby allowing for the application of all provisions of the Constitution to the State of Jammu and Kashmir. Also read: Article 370 of the Constitution revoked: Provisions of Article and what its abrogation means for Jammu and Kashmir Article 370 could have been amended only after a recommendation by the J&K Constituent Assembly. However, the Presidential Order allowed the Union government to make the change. Moreover, J&K at the time was under President’s Rule and the powers of the J&K Legislative Assembly were vested in the Union Parliament. After discussions in the Rajya Sabha, then President Kovind issued Proclamation (CO 273) putting into effect the Rajya Sabha’s recommendation. As a result, all clauses of Article 370 ceased to operate, except clause 1, which was amended to state that the Constitution of India applies to the State of J&K. This scrapped the special status for J&K. [caption id=“attachment_12851732” align=“alignnone” width=“640”] An Indian security force personnel stands guard in a street early morning following scrapping of the special constitutional status for Kashmir. File image/Reuters[/caption] Some of the petitioners argue that the method chosen by the Centre was unconstitutional as Article 3 does not give the Parliament the powers to downgrade democratic states into a Union Territory. Others challenge the validity of Articles 370 and 35A. There are also some that argue that the right to autonomous self-government is a fundamental right under Part III of the Constitution and cannot be taken away without adhering to the due procedure established by law. The petitioners have also alleged major violations in Jammu and Kashmir. They said the “act of destroying its status without the concurrence, consultation, or recommendation of the people of that State, acting through their elective representatives,” amounted to an “overnight abrogation of democratic rights and freedoms guaranteed to the people of the State of Jammu and Kashmir upon its accession, reported The Hindu. What has the Centre said? The Centre has defended its move and in its affidavit stated that the region was now witnessing an “unprecedented era of peace, progress and prosperity, with street violence, orchestrated by terrorists and secessionist networks, becoming a thing of the past”. It stated that from a whopping 1,767 incidents of stone pelting has now reduced to zero. Moreover, casualty of security personnel owing to such activities has dropped by 65.9 per cent from 2018 to 2022. [caption id=“attachment_12851722” align=“alignnone” width=“640”] The Centre has said that by revoking Jammu and Kashmir’s special status, it has brought peace to the region and stone-pelting incidents of the past have reduced to zero. File image/Reuters[/caption] The Centre has also said that by undertaking the “historic step”, it has brought about unprecedented development, progress, security and stability to the region, which was often missing during the old Article 370 regime. The Centre further stated, “Life has returned to normalcy in the region after three decades of turmoil. People have adapted to the changes, enjoying peace, prosperity, and stability.” Is this the first court hearing? This is not the first time that the top court has said it will consider this issue. Earlier, a Constitution Bench headed by then CJI NV Ramana had agreed to hear the pleas after they were referred to it by CJI Ranjan Gogoi. The matter was also mentioned before CJI Chandrachud in December last year and again in February. He had then told the petitioners that he would “examine and give a date”. Today, the hearings will begin in the matters, but Justice Gavai has clarified that oral arguments would begin only in August. As of now, procedural directions about the filing of documents and written submissions, the order of oral arguments and allocation of time would be decided. With inputs from agencies