Jammu and Kashmir case finally coming before court
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The Supreme Court has finally decided to consider 23 petitions on July 11 against the constitutional amendment that abrogated Article 370 of the Constitution, which gave special powers to the Jammu government, as well as the President's order to divide the state into two Union Territories, namely Jammu and Kashmir and Ladakh. With this, the court proceedings related to the status of the state, which has been in limbo for four years, are set to begin. The five-member Constitution Bench comprising besides Chief Justice Y V Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Suryakant Sharma will hear the case. The hearing is to be held on the petitions to review the order issued by the President on August 5 and 6, 2019 and the Jammu and Kashmir Reorganization Act, 2019. After preliminary court proceedings, the actual hearing of the case is likely to start in August. As Justice Kaul is retiring in December, it is believed that the case may be decided before then.
It was a quite dramatic process of political happenings that in August 2019, brought the state of Jammu and Kashmir to a complete standstill. In June 2018, the BJP withdrew its support to the BJP-PDP alliance that had ruled the state till then and Mehbooba Mufti was forced to step down. After a few months of waiting, Governor Satyapal Malik dissolved the state assembly. Meanwhile, the Congress and the National Conference made a claim to the cabinet, but the governor didn't accede to it citing the possibility of horse-trading. Since then to date the people of the state have not had their elected representatives or popular government. Moreover, Jammu and Kashmir and Ladakh were reduced to two Union Territories, with Ladakh without legislature. The promise of the restoration of statehood to Jammu and Kashmir has not been fulfilled to date either. Elections in the state have also not happened. Delimitation of constituencies was done in tune with BJP's interest in such a way that the majority community would gain a numerical advantage, with an increase of six seats in Jammu and one in the Kashmir valley, opening the door for the BJP to take power in the state and also win one Lok Sabha seat in Ladakh. Apart from this, all avenues for expression of opinion were also shut across the state. For a long time, the situation was that people were tied up due to the lockdown and internet disconnection, which was implemented even before the cancellation of the special status. Even though the internet ban was lifted in phases, there was no way for the outside world to know what was going on in Kashmir or for the locals to know the outside world.
There is no space for popular protests in Kashmir, which is known as the region with the highest military concentration in the world. Due to the delay in considering the petitions challenging the validity of the Jammu and Kashmir Amendment Act, 2019, many steps have already been completed. All of this is done in a macho political manner that over time stabilises controversial policies. Sitting in New Delhi, the Central government unilaterally passed crucial reforms pertaining to Jammu & Kashmir. The Bill on dilution of Article 370 itself was presented to the Rajya Sabha on August 5 and to the Lok Sabha the following day. In two days, it was discussed and made into a law by the President. The court proceedings on the petitions challenging the legislation were delayed due to Covid-19 initially, but no further legal process took place even after the lockdown was lifted. When Justice NV Ramana was the Chief Justice, he once said that the case would be heard early, but it did not happen before he retired. Most recently, last February, Chief Justice Chandrachud said that a date would be fixed quickly on the plea of the petitioners, but that also did not happen. A date has now been set. It remains to be seen how the arguments of the case will go. The petitioners had sought a hearing by a larger constitution bench of more than five members, but it was not considered. It may be recalled that in the Economically Weaker Sections (EWS) reservation case, though the expectation was that only a bench larger than a nine-judge bench which had decided the Indra Sawhney case would adjudicate, the five-judge constitutional bench itself decided the matter, including decisions that overruled the former larger bench dicta. In the Kashmir case, it is probably unique in world's legal history as a case caught in the crossfire between the probable will of a people of a region and the will of the state.
