Five-judge Supreme Court Bench to decide on petition challenging the revocation of special status of J&K

The matter has come out of cold storage after three years. It was last heard on March 2, 2020, when a Constitution Bench refused to refer the matter to a seven-judge Bench.

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A five-judge Constitution Bench is likely set to hear a batch of petitions on July 11, 2023, challenging the Union government's decision to revoke the special status of Jammu and Kashmir (J&K) and divide it into two Union territories.

A Bench led by the Chief Justice of India D.Y. Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant will take up the matter to issue procedural directions and get the matter ready for hearing.

The matter has come out of cold storage after three years. It was last heard on March 2, 2020, when a Constitution Bench refused to refer the matter to a seven-judge Bench.

Interestingly, the lead petitioner, Shah Faesal, who had resigned from the Indian administrative services (IAS) and protested against the revocation of the special status of J&K, later rejoined the services with the permission of the Union government.

He now wants to withdraw his petition and has thus filed an application to this effect.

It is unlikely that the withdrawal of the petition by Faesal will affect the fate of the matter since there are many petitions by different people and groups challenging the decision of the Union government for tinkering with Article 370 of the Indian Constitution.

For instance, members of Parliament from the National Conference party, Mohammad Akbar Lone and Hasnain Masoodi, along with Kashmiri artist Inderjit Tickoo alias Inder Salim and veteran journalist Satish Jacob, have also challenged the President's Order on Article 370 and the Jammu and Kashmir Reorganisation Act, 2019.

Also read: President issues Order to make all provisions of the Constitution applicable in Jammu and Kashmir

In addition, former military officers and bureaucrats including former air vice marshal Kapil Kak, retired major general Ashok Mehta, former IAS officers Hindal Haidar Tyabji, Amitabha Pande and Gopal Pillai, and former member of the home ministry's group of interlocutors for J&K Radha Kumar, have challenged the Presidential Order by which Article 370 was abrogated, saying that the Order was constitutionally invalid.

Kashmir has also had long-drawn episodes of internet shutdowns, especially from 2019–21 after the Parliament read down Article 370 of the Indian Constitution. The internet lockdown is considered one of the longest suspensions of fundamental rights in a democracy, directly violating the Supreme Court's judgment given in Anuradha Bhasin versus Union of India.

On August 5, 2019, the then President of India Ram Nath Kovind issued an Order, The Constitution (Application To Jammu And Kashmir) Order, 2019, which in effect made Article 370— the provision that gave a special status to J&K— redundant.

Also read: Why unannounced internet outages in J&K amount to contempt of apex court's verdict

The Order had been issued by the President in exercise of the power vested in him under Article 370(1) of the Constitution of India. The Order read as follows:

"2. All the provisions of the Constitution, as amended from time to time, shall apply in relation to the state of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows: To Article 367, there shall be added the following clause, namely: (4) For the purposes of this Constitution as it applies in relation to the state of Jammu and Kashmir

(a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said state:

(b) references to the person for the time being recognised by the President on the recommendation of the legislative assembly of the state as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the council of ministers of the state for the time being in office, shall be construed as references to the governor of Jammu and Kashmir:

(c) references to the government of the said state shall be construed as including references to the governor of Jammu and Kashmir acting on the advice of the council of ministers, and

(d) in the proviso to clause(3) of Article 370 of this Constitution, the expression 'constituent assembly of the state referred to in clause(2)' shall read 'legislative assembly of the State'."

Also read: Bombay HC refuses to quash FIR against college prof for Whatsapp status message critical of Article 370 abrogation

The Union Home Minister Amit Shah had also moved a resolution in the Rajya Sabha to this effect, which read as follows:

"That this House recommends the following public notification to be issued by the President of India under Article 370(3):

'In exercise of the powers conferred by Clause (3) of Article 370 read with clause(1) of Article 370 of the Constitution of India, the President, on the recommendation of the Parliament, is pleased to declare that, as from August 5, 2019, all clauses of the said Article 370 shall cease to be operative except clause (1) thereof which shall read as under, namely:

"All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the state of Jammu and Kashmir notwithstanding anything contrary contained in Article 152 or Article 308 or any other Article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgment, ordinance, Order, bye-law, Rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 or otherwise."

The resolution also stated: "[The] President of India has referred the Jammu and Kashmir Reorganisation Bill, 2019 to this House (Rajya Sabha) under the proviso to Article 3 of the Constitution of India for its views as this House is vested with the powers of the state legislature of Jammu and Kashmir, as per proclamation of the President of India dated December 19, 2018. This House resolves to express the view to accept the Jammu and Kashmir Reorganisation Bill, 2019."

The Home Minister Amit Shah accordingly moved the Jammu and Kashmir Reorganisation Bill, 2019 which proposed to make Ladakh a Union territory (without legislature) and Jammu & Kashmir a separate Union territory (with legislature).

On August 9, 2019, the President gave his assent to the Jammu and Kashmir Reorganisation Act, 2019 that bifurcates the state of Jammu and Kashmir.

The Union territory of Ladakh comprises Kargil and Leh districts.

The Union territory of Jammu and Kashmir comprises the territories of the existing state of Jammu and Kashmir, other than Kargil and Leh.