The Supreme Court on Monday refused to refer the petitions challenging the abrogation of Article 370 to a larger bench. NGO People’s Union of Civil Liberties (PUCL), Jammu and Kashmir High Court Bar Association and an intervenor had challenged the constitutional validity of the Centre’s decision of August 5 last year and sought referring the matter to a larger bench, of either seven or nine judges.
The top court accepted the Centre’s arguments in the limited aspect of reference and held that there is no conflict in the earlier Supreme Court judgments of Sampat Prakash and Prem Nath Kaul.
A five-judge constitution bench headed by Justice N V Ramana had on January 23 reserved its order on this issue.
Opposing the plea, the Centre had said that abrogation of provisions of Article 370, which granted special status to erstwhile state of Jammu and Kashmir, has become a “fait accompli” leaving sole option to accept the change.
The petitioners have sought reference to a larger bench on the ground that two judgements of apex court – Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat Prakash versus Jammu and Kashmir in 1970 – which dealt with the issue of Article 370 are in direct conflict each other and therefore the current bench of five judges could not hear the issue.
In Sampat Prakash judgement, the Supreme Court had held that Article 370 will cease to be operative only if the President issues a direction to that effect on a recommendation made by the Constituent Assembly of Jammu & Kashmir.
In Prem Nath Kaul verdict, the Supreme Court ruled that plenary powers of the ruler of Kashmir were not limited by Article 370. The temporary provisions of Article 370, the court ruled, were based on the assumption that the ultimate relationship between India and Jammu & Kashmir would be finally determined by the Constituent Assembly of Jammu & Kashmir.
Attorney General K K Venugopal, appearing for the Centre, had told the five-judge bench that the two earlier judgments were not related to each other and dealt with different issues. The Centre had argued that the sovereignty of J&K enabled by Article 370 was temporary.
At least 23 petitions have been filed in the apex court against stripping Jammu and Kashmir of its special status and splitting it into two union territories – Jammu and Kashmir and Ladakh.
Besides challenge to the abrogation of Article 370, a slew of petitions were also filed in the court challenging the restrictions in the Kashmir valley which the petitioners had argued were in violation of their fundamental right to speech and expression and the right to move freely under Article 19 of the Constitution.
Those petitions were heard separately by three-judge bench of the Supreme Court which on January 10 held that restrictive orders suspending internet, telecommunication and movement should be published by the government indicating the specific reasons for imposing the restrictions and it should be proportional to the concerns necessitating such suspension.
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