The Leaflet

| @theleaflet_in | September 28,2019

[dropcap]T[/dropcap]HE Chief Justice of India (CJI) Ranjan Gogoi has constituted a five-judge Constitution bench comprising Justices N V Ramana, Sanjay Kishan Kaul, R. Subhash Reddy, BhushanRamkrishnaGavai and Surya Kant to hear a batch of petitions challenging the constitutional validity of the abrogation of Article 370 of the Constitution.

The third senior-most judge, Justice Ramana will be presiding over the bench which will start hearing the matter from October 1.

Previously, on August 28, a three-judge bench comprising the CJI Gogoi, Justices SA Bobde and Abdul Nazeer had ordered that the matter would be heard by a five-judge Constitution bench in the first week of October and asked the Centre to file its response to all petitions by then.

The top court heard the following petitions on August 28 before issuing the notices:

1) Petition filed by advocate ML challenging President’s order dated August 5, 2019, on Article 370

2) Petition filed by an advocate from Kashmir, ShakirShabir, challenging President’s order of August 5, 2019, pertaining to Article 370

3) Petition filed by advocate Soayib Qureshi challenging President’s order dated August 5 and 6, 2019 on Article 370. He has also sought a declaration from the court that the statutory resolution passed by the Parliament regarding Article 370 is unconstitutional.

4) Petition filed by National Conference MPs Mohammad Akbar Lone and Hasnain Masoodi which has also challenged President’s order on Article 370 and the Jammu and Kashmir Reorganization Act, 2019

5) Petition filed by Kashmiri artist Inder Salim alias InderJi Tickoo and a veteran journalist Satish Jacob, challenging President’s order on Article 370 and the J&K Reorganization Act, 2019

6) Petition filed by former military officers and bureaucrats including former Air Vice Marshal KapilKak, 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 Jammu and Kashmir Radha Kumar, challenging the Presidential order by which Article 370 was abrogated, saying that the order was constitutionally invalid. They have also opposed the enactment of Jammu and Kashmir Reorganization Act, 2019

7)  Petition filed by former IAS officer Shah Faesal and JNU alumnus Shehla Rashid, along with five others, challenging the abrogation of the special status of Jammu and Kashmir and its bifurcation into two Union Territories.

Besides these seven petitions, notice has also been issued on two more petitions seeking similar relief.

On August 5, 2019, the President of India Ram NathKovind issued an order ‘The Constitution (Application To Jammu And Kashmir) Order, 2019’ which in effect made Article 370, which gives special status to Jammu and Kashmir, redundant.

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 recognized 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 his 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”.

The Union Home Minister Amit Shah had also moved a resolution in RajyaSabha 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 5th of August, 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, judgement, ordinance, order, byelaw, 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 that the “President of India has referred the Jammu and Kashmir Reorganization Bill, 2019 to this House (RajyaSabha) 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 19th December, 2018. This House resolves to express the view to accept the Jammu and Kashmir Reorganisation Bill, 2019.”

Home Minister Amit Shah accordingly moved ‘The Jammu and Kashmir Reorganisation Bill, 2019’ which provided for proposing to make Ladakh a Union Territory (without Legislature) and Jammu & Kashmir a separate Union Territory (with Legislature).

On August 9, 2019, the President had gaven assent to “The Jammu and Kashmir Reorganization Act, 2019” (Reorganization Act, 2019) that bifurcates the state of Jammu and Kashmir into the Union Territory of Ladakh, comprising Kargil and Leh districts and the Union Territory of Jammu and Kashmir, comprising the territories of the existing state of Jammu and Kashmir, other than Kargil and Leh.

The Central Government, in a separate notification issued, said October 31, 2019, would be the appointed day on which the provisions of the Reorganization Act, 2019 would come into force.

With this, the state of Jammu and Kashmir will stand bifurcated into two Union Territories (UT), to be known as the UT of Ladakh and UT of Jammu and Kashmir on October 31, 2019.

Parliament had passed the Reorganization Act on August 6, 2019.

Read also: President gives assent to J&K Reorganization Act

Read also: President issues an order to make all provisions of the Constitution applicable in Jammu and Kashmir

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