Supreme Court hints that it may hear petitions on delay of elections in J&K after hearing petitions on Article 370

As the petitions challenging abrogation of Article 370 are listed to be heard soon, the Supreme Court has adjourned the petition seeking elections to the legislative assembly of the Union territory of Jammu and Kashmir, while also hinting that it may take up the issue at a later date. 

– – – 

TODAY, a three-judge Bench comprising Chief Justice of India D.Y. Chandrachud and Justices P.S. Narashima and Manoj Mishra hinted that they may hear the petition seeking elections to the legislative assembly of the Union territory (UT) of Jammu and Kashmir (J&K) only after hearing the batch of petitions in which the abrogation of Article 370 of the Constitution has been challenged.

The Bench also told the petitioners to serve a copy of the petition to the Election Commission of India. With respect to the request made by the counsel for the petitioners Harsh Dev Singh and advocate Ajay Singh to issue a formal notice, the Bench said that it is not issuing formal notice to avoid procedural delays.

A five-judge Constitution Bench is set to hear a batch of petitions on July 11, 2023 in which the Union government's decision to revoke the special status of J&K and its division into two Union territories has been challenged.

The petition seeking elections has been filed by Manju Singh, a resident of J&K. The petition has also been joined by Des Raj and Ashra Devi, chairman of block development council, Ramnagar, Udhampur and member of district development council, Udhampur, respectively.

The petition has been filed through advocate-on-record Rizwan Ahmed, challenging a Presidential Order issued on October 31, 2019 by which the administration of J&K was given to the lieutenant governor of the Union territory.

The petition contends that the said Order has arbitrarily delayed the elections to the legislative assembly of J&K without any justifiable reason, ergo amounting to violation of Article 14 of the Constitution of India.

The petition has also added that the indefinite operation of the said Presidential Order without specifying any expiry period amounts to violation of Articles 324 to 327 and 329, which have repeatedly been held by the Supreme Court as part of the basic structure of the Constitution. 

The petitioners have averred that periodic, free and fair elections besides forming an integral part of the Universal Declaration of Human Rights, 1948, also find recognition in Article 25 of International Covenant on Civil and Political Rights.

"In this period, elections to state assemblies in major states and by-elections in several states/Union territories have taken place in the middle of a raging global Covid pandemic. Even in the erstwhile state of Jammu and Kashmir elections to municipal bodies, panchayats, block development councils, district development council and House of people (Lok Sabha) have been held without any obstruction or notable untoward happening. 

"Ergo, the arbitrariness which is self-evident in this step-motherly treatment by the Election Commission of India in the face of unanimous willingness and repeated petitions to it by all the recognised political parties of Jammu and Kashmir except Bharatiya Janata Party goes to the root of Article 14 and Article 19 of the Constitution," the petition reads.

The legislative assembly of erstwhile state of Jammu and Kashmir was suspended in June 2018 and subsequently dissolved on November 21, 2018. Thereafter, President's Rule was imposed through a Presidential Proclamation under Article 356 of the Constitution, which was further extended for a period of six months with effect from July 3, 2019.

The state was under President's Rule when the Parliament enacted The Jammu and Kashmir Reorganisation Act, 2019, by which the state of Jammu and Kashmir was bifurcated into the Union territory of Ladakh and the Union territory of Jammu and Kashmir.

On October 31, 2019, President's Rule in the state was revoked and the newly formed Union territory of J&K came into existence, which is being administered through the lieutenant governor till date.