Article 370: SC refers pleas to Constitution bench

The Supreme Court on Monday referred to a Constitution bench a clutch of petitions challenging restrictions imposed in Jammu and Kashmir after August 5 decision to remove its special status and divide it into two Union Territories.

A bench of Chief Justice Ranjan Gogoi and Justices S A Bobde and S Abdul Nazeer, however, dismissed a plea by MDMK chief and Rajya Sabha MP Vaiko questioning detention of former state Chief Minister Farooq Abdullah.

The court said nothing survived in the matter as he has been detained under the Public Safety Act.

Other petitions filed by child rights activist Enakshi Ganguly, Dr Sameer Kaul, Mohd Yusuf Tarigami, Sitaram Yechury and Ghulam Nabi Azad and others, questioning blockade and detentions were sent before the five-judge Constitution bench, for consideration.

On Saturday, the Supreme Court had set up a five-judge bench to adjudicate from October 1 a batch of petitions challenging validity the Union government's decision to pass a Presidential Order on August 5, removing the special status of Jammu and Kashmir, and a subsequent passage of a law, dividing the state into two Union Territories.

The Constitution bench would be presided over by Justice N V Ramana and would comprise Justices Sanjay Kishan Kaul, R Subhash Reddy, B R Gavai and Surya Kant.

Justice Ramana is the third senior most judge. He would take over as the CJI on retirement of Justice S A Bobde, who is the second senior most judge, on April 23, 2021. Notably, both the CJI and Justice Bobde are at present sitting in a separate Constitution bench to decide the Ayodhya dispute related to Babri Masjid and Ram Temple.

The others judges in the bench Justice Kaul is at number 12, Justice Reddy at 22, Justice Gavai at number 27 and Justice Kant at 28 in line of seniority.

Background:

The court had on August 28 referred about dozen petitions for consideration before a five-judge Constitution bench in the first week of October.

It had sought a response from the Union government on a batch of petitions filed by sitting National Conference MPs and others against abrogation of Article 370 of the Constitution, and discarded a request by Attorney General K K Venugopal and Solicitor General Tushar Mehta for not issuing a formal notice on the ground that it was “very sensitive” matter.

J&K National Conference MPs Mohd Akbar Lone and Hasnain Masoodi sought a declaration that the August 5 Presidential Order -- which took away special status of Jammu and Kashmir under Article 370 of the Constutition – was unconstitutional and inoperative.

They also challenged validity of the Jammu and Kashmir (Reorganisation) Act of 2019, which divided the state into the two Union Territories, and sought a direction to declare it “unconstitutional, void, and inoperative” for being “contrary to constitutional scheme”.

Besides, separate petitions filed by Shah Faesal, former IAS topper and president of J & K People's Movement, and Radha Kumar, former J&K interlocutor, along with a group of former bureaucrats were also admitted for consideration.

Radha Kumar, a former member of the Home Ministry’s Group of Interlocutors for Jammu and Kashmir (2010- 11), Hindal Haidar Tyabji, a former IAS officer belonging Jammu and Kashmir Cadre, Air Vice Marshal (Retd) Kapil Kak, who was also Deputy Director of Institute for Defence Studies and Analyses, Major General (Retd) Ashok Kumar Mehta and Amitabha Pande, former member of Punjab Cadre of IAS have filed a joint petition. G K Pillai, former IAS officer of Kerala cadre who retired as Union Home Secretary in 2011, is also one of the petitioners.

They claimed, “The action of the Union government, without ascertaining the will of the people either through its elected government or legislature or through public means such as referenda, has undermined the basic principle of democracy.”

Apart from that, they said it was also violation of principles of Federalism.