Welcome decision to hear Article 370 cases

The Supreme Court has taken a welcome decision to take up petitions challenging the scrapping of Article 370 which resulted in depriving Jammu & Kashmir of its constitutional special status and led to the bifurcation of the then state into two Union Territories.

Much water has flowed down the Jhelum since the changes were effected by the government on August 5, 2019. A five-judge Constitution Bench headed by Chief Justice of India (CJI) D Y Chandrachud will now take up the cases on July 11. But actual hearings may be held only in August. Chief Justices have in the past promised early listing and hearing of the petitions. Justice Chandrachud had said in February that he would consider taking them up. It is only now that the matter is showing progress.  

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A total of 23 petitions are there before the court relating to various aspects of the government’s decision. Some of them have challenged the merit and constitutionality of the decision, and others the manner in which the decision was taken and implemented.

It has been contended that the decision was arbitrary and unilateral and taken without the consent of the people and without going through the prescribed processes and procedures.

The state had no legally constituted Assembly then and so it is argued that a temporary administrative situation in the state, created by the central government, was used to create a major and lasting change in its status. Issues of federalism are also involved, and for the first time in the country a state was converted into two Union Territories. There is no representative government and elected Assembly there in the last five years. 

These are issues which not only involve serious legal and constitutional questions but have implications for the polity and governance. They also have political importance because the positions relating to Article 370 and the government’s handling of it were political, too. Many of the issues are important not only for J&K but also for other states. Such issues should be decided by courts without delay.

Courts have heard cases involving the rights of citizens even in extraordinary sittings at night. Very often when cases are delayed, the situation created by a decision which is under challenge in the court becomes irreversible.

In such cases, the court’s view may even become infructuous, futile, or only of academic interest. The Supreme Court upheld the government’s demonetisation decision in January this year, six years after the decision.

The decision on the 2017 Electoral Bonds scheme is still awaited. Hopefully, the decision on Article 370 will not be further delayed, and other crucial cases that are pending will be taken up soon.