By Ritika Jain
The Supreme Court will start hearing pleas challenging the Centre’s move to scrap Article 370, from August 2, 2023. The top court today also allowed bureaucrat Shah Faesal and activist Shehla Rashid to withdraw their pleas in this batch of matters.
The Supreme Court will finally hear the pleas four years after the government’s move which not only revoked Jammu and Kashmir’s special status, but also bifurcated the state into two union territories.
On the eve of today’s hearing, the Centre filed a counter affidavit defending its decision to abrogate Article 370 granting special rights by saying that for the first time since independence, the residents of Jammu and Kashmir are enjoying the same rights as those from the other parts of the country.
BOOM summarises all the issues and the challenges therein.
Also Read: 4 Years After Centre Scrapped Article 370, SC To Hear Pleas
Abrogation of Article 370 brought unprecedented peace, progress: Centre to SC
The Centre defended its move to scrap article 370 saying it has “resulted into bringing the people of the region into the mainstream and thereby inevitably frustrating the sinister design of secessionist and anti-national forces,” the Centre said.
“The historical step has brought unprecedented development, progress, security and stability to the region, which was often missing during the old Article 370 regime…the same has been possible due to the policy of the Union of India of ensuring peace, prosperity and progress in the region,” the counter affidavit said. Life has returned to normalcy in the region after three decades of turmoil,” the Centre added.
“Schools, colleges … and other public institutions are functioning efficiently without any strikes or disturbances during the last three years. The earlier practice of strikes, stone pelting and bandhs are things of the past now,” the affidavit said.
In 2022, Jammu and Kashmir saw a 45.2 per cent decrease in terrorist activities since 2018. There has been a marked decrease in casualty to security forces (65.9%), law and order events (97.2%) and net infiltration in the state (90.2%), the affidavit said.
The counter affidavit was filed the day before a five-judge bench of the Supreme Court today will commence hearing pleas challenging the constitutionality of the Centre’s move to revoke special status given to J&K as well as the decision to bifurcate the state in two union territories.
Also Read: No Internet, No Investor: The Trials Of Owning A Start-Up In Kashmir
Crucial hearing four years after Centre scrapped Article 370
The Centre on August 5, 2019 scrapped Article 370 which accorded special status to the former state of Jammu and Kashmir. The top court was flooded with pleas challenging the Centre’s decision soon after.
The Supreme Court at the time had refused to stay the Centre’s move to bifurcate the former state into two union territories observing, “The court can put the clock back… But it cannot hear such a matter without getting a response from the government.”
In March 2020—when the matter was last heard—the Supreme Court decided against referring the matter to a larger bench.
It is also pertinent to point out that once the court begins hearing the matter now, it would have to conclude arguments and deliver its verdict before December 2023 when Justice Sanjay Kishan Kaul, one of the five judges, retires.
Who are the petitioners and what are the main challenges?
Lok Sabha MPs Mohammad Akbar Lone and Hasnain Masoodi; CPI(M) leader Mohammed Yousuf Tarigami; advocates M L Sharma, Soayib Qureshi, Muzzafar Iqbal Khan, Rifat Ara Butt, and Shakir Shabir; artist Inderjit Tickoo and veteran journalist Satish Jacob among others have filed pleas challenging the Centre’s move to scrap Article 370.
The petitions before the top court are broadly categorized into three key issues: erosion of Article 370; bifurcation of the state in two union territories and the internet shutdown in the state.
While the third issue has already been sorted—Supreme Court in 2020 constitutionally protected one's right to access the internet but said reasonable restrictions apply—the top court today is now left with the remaining issues.
The petitions seek to declare Presidential orders (authorizing the Centre’s move) and the J&K Reorganisation Act ‘unconstitutional, void and inoperative’. The petitioners have invoked the ‘doctrine of colourability,’ which prohibits the government from passing a law to do something indirectly what it cannot do directly.
The petitioners allege that the decision to revoke the erstwhile state’s special status and bifurcate it into two union territories was done without asking the people of Jammu and Kashmir.
The petitioners have further alleged that the Centre does not have the power to downgrade federal democratic States into a less representative form such as a Union Territory.
