Supreme Court directs day-to-day hearing on Article 370's pleas from August 2

The matter was last listed in March 2020, when a five-judge bench declined to refer the matter to a larger bench of seven judges.

New Delhi: The Supreme Court on Tuesday said it would begin day-to-day hearings from August 2 on a clutch of petitions pertaining to the nullification of Article 370 of the Constitution, and recorded a statement by the Union government that it will not rely upon the contents of an affidavit filed a day ago to bring on record the scenario in Jammu & Kashmir since the move.

Supreme Court of India

Read here: Govt’s affidavit defending nullification of Art 370 lacks logic: Mehbooba Mufti

Observing that the challenge to the abrogation of Article 370 — which conferred special status on J&K until August 2019 — is a “pure question of constitutional validity”, a five-judge bench, comprising Chief Justice of India Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, set down the matter for an extensive hearing in the first week of August. It asked all parties to submit the documents they want to rely upon by July 27.

“The learned Solicitor General has submitted that though the Centre has filed an additional affidavit setting out the central government’s views on post-notification developments, it would have no bearing on the constitutional question involved in the matter and hence, it would not be relied upon,” said the bench in its order.

Defending the nullification of Article 370 of the Constitution, the Centre on Monday filed an affidavit to state that the August 5-6, 2019 decision has led to “unprecedented development, progress, security and stability” in J&K, adding that “life has returned to normalcy in the region after three decades of turmoil”. It further said that the nullification has resulted in dismantling of the terror network, and incidents of stone pelting and street violence have “now become a thing of the past” in J&K where all the provision of the Constitution and central laws now apply uniformly.

However, on Tuesday, the bench pointed out that the Centre’s endeavour to portray the situation in J&K after the abrogation is likely to prompt the other side to file their own version of the state of affairs.

Read here: Abrogation of Article 370: Supreme Court directs day-to-day hearing from August 2

“Our apprehension is that you present a post-notification scenario and then they (opposite side) may file another affidavit to cite their version of the post-notification scenario. Even otherwise, that affidavit has no bearing on the questions of the constitutional challenge in these petitions,” the bench told the SG Tushar Mehta, who agreed to undertake that the Centre will not be harping on the contents of the affidavit.

The Constitution bench further ordered that the batch of matters relating to Article 370 and bifurcation of the state into two Union territories will be now listed as “In Re: Article 370 of the Constitution”.

During the brief hearing specifying the procedural directions, the court also allowed requests of bureaucrat Shah Faesal and former student leader Shehla Rashid to withdraw as petitioners challenging the abrogation of Article 370.

Faesal resigned from service in protest in 2019 to float a political party in J&K. However, his resignation was not accepted by the government, and he withdrew it later. Faesal’s decision to withdraw the petition came soon after he was taken back into the Indian Administrative Service in April 2022 and was appointed deputy secretary in the Union ministry of culture. In his plea filed on April 29, 2022, Faesal told the court that he does not wish to be part of a petition questioning the Centre’s decision to end the special status of J&K since he wishes to pursue public service without the baggage of political activism.

In its order, the bench clarified that the hearing of the matter will proceed on a day-to-day basis, barring Monday and Friday when the court hears miscellaneous and fresh cases. Advocates Kanu Agrawal and Prasanna V will be the nodal counsel for the preparation of common convenience compilations, said the court, adding pleadings in the matter must complete by July 27.

A raft of petitions, filed by parliamentarians from the National Conference party, Kashmiri citizens, former bureaucrats and various organisations laid the challenge to the abrogation of Article 370 soon after the presidential order in August 2019.

While some petitioners brought up the requirement of consent from the constituent assembly for abrogation of Article 370, others questioned the validity of the President’s rule that was in effect when the abrogation was made. A few of these pleas went back to the Instrument of Accession, while some highlighted the Supreme Court’s ruling of 2018 that observed that Article 370 had gained a status of permanence.

Many petitions have also challenged the Jammu and Kashmir State Reorganisation Act, by which the state was split into two Union territories with effect from October 30, 2019.

On August 28, 2019, the Supreme Court issued notices on the pleas despite resistance from the central government, which argued that Article 370 had international and cross-border implications. The Centre had at that time argued that it was a sensitive matter and whatever happens in the country over it would be brought up at the United Nations. While issuing notices, the court referred the matter to a five-judge Constitution bench.

The matter was last listed in March 2020, when a five-judge bench declined to refer the matter to a larger bench of seven judges. The reference was sought on grounds that two previous judgments of the apex court were conflicting with each other, but the bench did not agree with this contention.

Read here: Normalcy, peace returned in Jammu and Kashmir after Article 370 abrogation: Centre

At that time, it was noticed by the bench that there was also an older batch of petitions pending in the Supreme Court that challenged the validity of Articles 370 and 35A, which accorded special status to J&K. It pointed out that all the matters related to Article 370 should preferably be heard together.