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Article 370: Constitution Bench of Supreme Court defers hearing till December 10

Article 370: Constitution Bench of Supreme Court defers hearing till December 10

Shruti Mahajan

The Supreme Court today deferred the hearing in the challenge to the abrogation of Article 370 till December 10.

A batch of petitions challenging various aspects of the abrogation of Article 370 was placed for hearing before a five-Judge Constitution Bench of Justices NV Ramana, SK Kaul, R Subhash Reddy, BR Gavai and Surya Kant. The matter was listed for hearing today after the Centre had sought four weeks’ time to file its counter affidavit.

When the matter came up for hearing today, the Bench expressed the need for one common compilation of all the documents of both sides to ensure that the hearing becomes easier. Given that there are over 20-odd petitions in the case with two fresh petitions admitted by the Court today, the counsel told the Bench that some time would be required to prepare this compilation.

Each side nominated one advocate for the purpose of putting together a common compilation. The responsibility has been placed on Advocate S Prasanna for the petitioners, and Advocate Ankur Talwar for the respondents.

Additionally, the Court directed the Centre to file a counter on or before November 22.

Senior Counsel Rajeev Dhavan, representing the Jammu and Kashmir People’s Conference, urged the Court to hear the issue on aspects like bifurcation of services, division of assets and transfer of properties ahead of the main issues. However, the Court said that it would hear the entire case and adjudicate on the entirety of the case together.

The Court will hear the case next on December 10, by which date the compilation of all material is required to be prepared.

The Presidential Order of August 5 paved the way for the removal of Article 370 earlier this year. On August 5, the Constitution (Application to Jammu & Kashmir) Order, 2019, was introduced to supersede the Constitution (Application to Jammu & Kashmir) Order, 1954. The 1954 Order had listed out provisions of the Constitution of India that would not apply to Jammu and Kashmir.

In its place, the 2019 Order provided that all provisions of the Constitution of India will apply to the state of Jammu & Kashmir, with a few exceptions and modifications.

Though the power to abrogate or modify Article 370 was conferred on the President under clause (3) of the Article, there was a pre-condition to the same – concurrence by the Constituent Assembly of the State of Jammu & Kashmir. The Constituent Assembly had, however, ceased to exist as far back as in the 1950s.

In order to get over this hurdle, the Presidential Order now under challenge had amended Article 367 to replace the reference to “Constituent Assembly” under Article 370(3) to mean “Legislative Assembly”.

Subsequently, the President had issued another order on August 6 making Article 370 redundant.

[Read the Order]