New Delhi: Since the Narendra Modi government effectively scrapped Article 370 and Article 35A through a Presidential Order, a series of petitions has flooded the Supreme Court, questioning the constitutionality of the move.
In doing so, the government removed special status from Jammu and Kashmir, and divided the former state into two union territories — J&K and Ladakh — under the Jammu and Kashmir Reorganisation Act, 2019.
Jammu and Kashmir has been under a communication blackout since 4 August, the day before Union Home Minister Amit Shah introduced the legislation in the Rajya Sabha, and it has only been partially relaxed in the last few days.
On 16 August, a Supreme Court bench led by Chief Justice of India Ranjan Gogoi presided over the petitions, but deferred the hearing to this week after noting that changes needed to be incorporated in some of the petitions.
Here is a list of some of the petitions and the people behind them.
Kashmiri lawyer’s plea
Advocate Shakir Shabir is of Kashmiri origin, and has been practising at the J&K High Court for over a decade.
He moved the Supreme Court questioning the amendment wherein the words “constituent assembly” were replaced by “legislative assembly”.
Shabir’s plea stated that the revocation of J&K’s special status could not have been completed without the agreement of the state assembly. He argued that such an agreement would have “reflected the will of the people”, which was required before effecting such sweeping changes, and the government’s move was thus unconstitutional.
The advocate also argued that there has been illegal exercise of power by the Governor, since there was no consultation with the council of ministers.
Petition moved by National Conference
Mohammad Akbar Lone and Justice Hasnain Masoodi (retd), both Lok Sabha members representing the National Conference, have also approached the apex court claiming that the Presidential Order was unconstitutional, and that it should be struck down.
Akbar Lone is a former speaker of the Jammu and Kashmir assembly while Masoodi is a retired judge of the Jammu and Kashmir High Court, who in 2015 had held that Article 370 was not a temporary provision but a permanent feature of the Constitution.
The petitioners have stated that the legislation and the Presidential Orders are “illegal and violative” of fundamental rights guaranteed under Article 14 and 21 of the Constitution to the people of Jammu and Kashmir.
Ex-servicemen & civil servants’ petition
The abrogation of Article 370 has also been challenged by a group of former defence personnel and civil servants led by Radha Kumar, a former member of the Home Ministry’s Group of Interlocutors for Jammu and Kashmir (2010-11).
The others who have made the plea are Hindal Haidar Tyabji, former chief secretary of Jammu & Kashmir; Air Vice Marshal (retired) Kapil Kak, a permanent resident of Jammu and Kashmir and decorated officer; Maj. Gen. Ashok Kumar Mehta (retd), who held postings in the Uri Sector and fought the 1965 and 1971 India-Pakistan wars; Amitabha Pande, former secretary of the Inter State Council of the Government of India; and Gopal Pillai, former home secretary.
Invoking the federal structure of the Constitution, the petitioners have stated that the amendments brought in by the government did not have the consent of the people of J&K and that they were a violation of the 1947 Instrument of Accession.
Also read: Beyond Article 370, we must ask if the J&K bifurcation was constitutional
Plea by journalist and Kashmiri writer
This petition has been filed by former BBC correspondent Satish Jacob and Kashmiri writer Inderjit Tickoo. Though Jacob does not have a direct locus in the case, Tickoo, owing to his Kashmiri descent, lends significance to the petition.
The petitioners have stated that the Presidential Orders and the Jammu and Kashmir Reorganisation Act did not follow due process of law, and that the communication clampdown in J&K violated the constitutional guarantee that was made to the state.
Stating that the move was constitutionally null and void, the petitioners have stated that the government has avoided “mandatory constitutional requirements”, disrupted the “settled rights of constitutional bodies”, and also caused imbalance in the federal structure of the country.
Challenge by Delhi-based Muslim lawyer
Advocate Soayib Qureshi, a Delhi-based lawyer who is part of law firm PSL – Advocates and Solicitors, has petitioned the top court against the Presidential Order.
The petition had certain defects, and is currently under the process of being rectified.
M.L. Sharma’s petition
The serial litigant was the first to approach the top court once the government had announced its decision to do away with the special status of J&K. Sharma, however, has no personal locus in the case.
His plea contended that Article 370 and Article 35A were against the basic spirit of the Constitution, but the government acted in an arbitrary and unconstitutional manner.
However, when the plea was mentioned before CJI Gogoi, he remarked that it took him hours to read the petition but still could not make sense of it. He went on to add that he could have dismissed the plea, but did not for the sake of the other petitions.
Two pleas challenging communication blackout
Tehseen Poonawalla, who calls himself a “political trendwatcher”, has sought withdrawal of “curfew/restrictions” and other allegedly repressive measures including the blocking of phone lines, internet and news channels in J&K.
Meanwhile, Anuradha Bhasin, the editor of Kashmir Times, has in a separate plea sought directions to ensure that the government creates “an enabling environment for journalists and all other media personnel in all parts of Jammu and Kashmir to practise their profession”.
When these petitions came up before top court, the Solicitor General had sought more time to ease restrictions, which the SC allowed. From 19 August, schools have reopened in the Valley, while the government is looking at easing restrictions over internet and phones from this week.
Bhasin also argued about the freedom of the press being curbed through the blackout, and the plea will now be heard with others.
Jamia student’s plea to connect with parents
Jamia Millia Islamia student Mohammad Aleem Syed has filed a habeas corpus petition, demanding information on and access to his parents and brother in Kashmir, with whom he has lost touch after the government imposed restrictions.
The petition is likely to come up for hearing along with other pleas challenging the constitutionality of Article 370.
Also read: From AFSPA to street protests, Modi govt needs new thinking in J&K with Article 370 gone
Undoubtedly J&K is part and parcel of India. It is also too fact that Article 370 was a bridge between Kashmiri and rest of the country. The way it was removed is showing the mentality of a party Influenced by a particular thought who is need the Kashmiri land, no means of the people of the state. Our Hon’ble SC is looking everything and accordingly decide.
Did these people (petitioners) believed killing of innocent Kashmiri pundits and other people by terrorists democratic? Why these petitioners never moved to SC before to stop killing of innocent Kashmiris by terrorists?
Some misguided and some motivated and rest have vested interest. They want lime light. But nation interest in first. Many army men have sacrificed for the cause of nation so nation shouldn’t care such people. I am sure they have not lost single life of nearer and dearer and never experienced the pain the family members of army men that got killed by stone pelters and terrorist. All suck petitions need to be thrown to dustbin and such people declared tankhainya by society.
In the petitioner s there are kashmiri pundits and sensible Hindus also are they less Hindu or nationalist than feku and tadipar or are they member of tukde tukde gang chaddi gang should clarify by keeping their assholes on hot plate .because taking pledge in the name of Constitution and speaking lies is common these days..As far as SC is concerned.It is no match to India’s neighbour which does not boast of sickularism.
The apex court will stand by the government.
And that will be a tragedy.
It is natural and expected, very rarely they stood with affected people. After it is question of their rozi roti. More over we don’t have Judges like H R Khanna, Krishna Iyer. It is same on note Bandi instead of getting hold a small percentage of black, they made people like you, me and millions of others to stand in queue to exchange note. The political parties and rich coolly managed to convert all their ill gotten money. What is happening in Valley is also same. We living outside Kashmir are no way affected so naturally we will be least bothered.