Supreme Court to hear pleas challenging the abrogation of Article 370
The petitions challenging the 2019 notifications of the president demolishing the special status of Jammu and Kashmir under article-370 were submitted before the chief justice of India by the Senior advocate Shekhar Naphade on Monday stating that “This is a matter of Article 370. the delimitation is also going on” seeking for a posting next week. The petitions at least are listed after the summer vacations requested by the Naphade showing concern. The court will reopen in July, after the summer vacation).
CJI in response to the request by the advocate Shekhar stated – “Let me see…after the vacation. This is a matter of a 5judge bench and has to be reconstituted the bench. Nearly 4 months after the issue of notification by the centre in August 2019, the hearing related to the issue of article 370 was commenced before the 5-judges bench in December 2019. NGO, People’s Union of Civil Liberties (PUCL), Jammu and Kashmir High court Bar association and Intervenor were seeking referring of the case to a larger bench on the basis that -The judgements of two cases of the Apex court- Prem Nath Kaul vs. Jammu and Kashmir 1959 and Sampat Prakash vs. Jammu and Kashmir in 1970 which were dealing with the issue regarding Article-370 were conflicted each other, therefore, the larger constitutional bench of 7-judges should hear the matter and the current bench couldn’t hear the issue. The 5-judges bench comprising Justices Sanjay Kaul, R Subhas Reddy, BR Gavai and Surya Kant who were hearing the matter earlier, amongst them, one of the judges R Subhas Reddy Retired in January this year, disagreed with the petitioners and stated that- “There is no conflict between the Judgements of the two cases.”
The Judgement of the prem Nath case was not contemplated in the subsequent verdict by the top court in the Sampat Prakash matter, such contention was disagreed upon by the apex court. The petitioner contended that a decision in the Kaul case was not considered in the succeeding judgement, the latter verdict was ‘Per Curiam or wrongly decided. The bench said – “At the cost of reiteration, we remark that the rule of Per incuriam is only applicable to the ratio decidendi judgement, being an exception to the doctrine of Precedents. The same influencing the stability of the legal precedents must be applied thriftily when there is an absurd conflict between the views and opinions of two co-ordinate benches. However, there are no adverse observations made in the Sampat Prakash case to that of Prem Nath therefore, the case of Sampat is not Per incuriam.” In the judgement dated 2nd March 2020, the constitutional bench considering the above-mentioned discussions decided that there was no need to refer the matter regarding the challenge to the presidential Orders issued under article 370 to a larger bench.
Numerous petitions have been filed in the apex court including the private individuals, Lawyers, activists, and political parties and they have also challenged the Jammu and Kashmir Recognition Act, 2019, which Partitioned J&K into union territories-J&K and Ladakh. Some of the lawyers appearing in the matter requested the bench to fix a date for hearing the main matter after the pronouncement of the order. The bench propounded that on the batch of petitions challenging the validity of abrogation of Article-370, the schedule for hearing such petitions would depend on the hearing by a 9-judge bench in the Sabarimala case, which is believed to be commenced after the Holi break.
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