NEW DELHI – The Supreme Court Thursday said the petitions challenging the validity of provisions of Article 370, which was abrogated by the Centre on August 5, and Article 35-A would be dealt with by its 5-judge Constitution bench which is hearing the Kashmir matter.
While the provisions of Article 370 granted special autonomous status to Jammu and Kashmir, Article 35-A provided special rights and privileges to natives of the state.
NGO ‘We The Citizens’ had filed a petition in the apex court in 2014 challenging the constitutional validity of Article 35A. Later, six other pleas were filed in the top court on the issue.
Similarly, Kumari Vijayalakshmi Jha had filed an appeal in the top court in 2017 against the Delhi High Court verdict rejecting her plea challenging the validity of Article 370.
The Constitution bench recently fixed November 14 to commence hearing on a batch of pleas challenging the constitutional validity of the Centre’s decision to abrogate the provisions of Article 370.
When these pleas came up for hearing on Thursday before a 3-judge bench headed by Justice N V Ramana, the court said that these matters were old and there was no urgency to hear them.
“When the Constitution bench will decide the Article 370 issue, we think these petitions might not survive,” said the bench, also comprising justices R Subhash Reddy and B R Gavai.
“These matters should not come in the way of the hearing on petitions (challenging validity of Centre’s decision to abrogate provisions of Article 370),” the bench said.
The apex court later said that these pleas be posted for hearing along with the petitions pending before the constitution bench.
“Let these matters be posted along with the constitution bench matters…which are coming up for hearing on Thursday, the November 14, 2019,” the bench said in its order.
The top court also said that a separate plea filed by CPI(M) General Secretary Sitaram Yechury, who has referred to other issues that have arisen in Jammu and Kashmir after the abrogation of provisions of Article 370, would also be heard by the Constitution bench.
In her petition, Jha has claimed that the high court had dismissed her plea by “wrongly following and misreading” the earlier judgement of the apex court.
She had contended in the high court that Article 370 was a temporary provision that had lapsed with the dissolution of the state’s Constituent Assembly in 1957.
In July 2014, the Supreme Court had dismissed a plea challenging the special status granted to Jammu and Kashmir and had asked the petitioner to move the high court.
Similarly, the NGO and six other petitioners have moved the apex court challenging the constitutional validity of Article 35A.
Article 35A, which was incorporated in the Constitution by a 1954 Presidential Order, accords special rights and privileges to the citizens of Jammu and Kashmir and bars people from outside the state from acquiring any immovable property in the state.
It denies property rights to a woman who marries a person from outside the state. The provision, which leads to such women from the state forfeiting their right over property, also applies to their heirs.
Besides the NGO, the other petitioners on the matter are West Pakistan Refugees Action Committee Cell 1947, Dr Charu Wali Khanna, Kali Dass, Radhika Gill, Reapan Tikoo and Major Ramesh Upadhyay.
The five-judge constitution bench had on October 1 given four weeks to the Centre and Jammu and Kashmir administration to file counter-affidavits on the petitions and had also put an embargo on filing of any fresh writ petition challenging the constitutional validity on abrogation of Article 370.
Some of the petitioners had told the constitution bench that they have filed pleas challenging the existence of provisions of Articles 370 and 35-A according special status to J&K before the Centre came out with the decision to abrogate them.
Several political parties including the National Conference (NC), the Sajjad Lone-led J&K Peoples Conference and CPI (M) leader Mohd Yousuf Tarigami have filed pleas in the top court challenging the Centre’s August 5 decision.
SC Asks J&K HC To Expeditiously Decide Plea On Detention
The Supreme Court asked the Jammu and Kashmir High Court on Thursday to “expeditiously” pass order on a petition seeking directions to the authorities to produce before it some persons, including an NRI businessman, detained following the abrogation of provisions of Article 370.
The apex court, which was hearing a plea filed by the wife of a Malaysia-based NRI businessman against detention of her husband, said this after it was informed that the high court has reserved its order on the plea pending before it.
“Having regard to the fact that the matter involves personal liberty of an individual, we request the said high court to pass appropriate order on the habeas corpus petition expeditiously and in accordance with law,” a bench headed by Justice N V Ramana said.
The bench, also comprising Justice R Subhash Reddy and Justice B R Gavai, deferred the matter pending before it to await the order of the high court.
The top court was hearing a plea filed by Asifa Mubeen, the wife of Mubeen Ahmad Shah, seeking quashing of the authorities’ August 7 order of detention along with the grounds of detention under section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978.
At the outset, the bench said according to the affidavit filed by the Jammu and Kashmir administration, the brother-in-law of the petitioner was present during the hearing of the plea pending before the high court.
Senior lawyer Gopal Sankaranarayanan, appearing for the Asifa Mubeen, told the court that petitioner before the high court was not authorised by them to file a plea there.
He said a US-based attorney had filed the petition before the high court seeking direction to the authorities to produce before the court some persons, including Mubeen Ahmad Shah, who were under detention.
Solicitor General Tushar Mehta, appearing for the Jammu and Kashmir administration, told the court that there is a valid order of detention and the petitioner should challenge it before the high court.
“We will wait for the high court’s order,” the bench said.
When Sankaranarayanan said that they want to argue the matter before the top court, the bench said, “We do not understand this. You want a relief that this man should be freed. If the high court decides this, why you do not want it?”.
It also asked the senior lawyer as to whether they had brought it to the notice of the high court that the US-based attorney had not taken their consent before filing the plea.
Attorney General K K Venugopal told the bench that the high court should deliver the order and if aggrieved, the petitioner can approach the top court in appeal.
“As prayed, liberty is granted to the senior counsel appearing for the petitioner to mention this matter for listing if he is aggrieved with the order passed by the high court,” the bench noted in its order.
The apex court on October 16 asked the Jammu and Kashmir administration as to why it has not filed a reply on the plea. The petitioner has said that her husband is currently lodged at Agra Central jail and has been “wrongfully deprived” of his liberty.
“The detenu (Shah), a senior and well respected citizen of India, a qualified doctor and leading NRI businessman based in Malaysia, with a serious medical illness, has been illegally deprived of his life and liberty for more than 40 days since August 5, 2019,” the plea has said.
The petitioner has said that Shah had come to Srinagar on April 18 to attend the last rites of his sister-in-law and continued to stay there since his father-in-law was unwell and passed away in July.
The plea said since Shah was not keeping well during that period, he was admitted to a hospital in Srinagar in May.
“In the intervening night of August 4-5, 2019, the detenu (Shah) was arrested illegally without any warrant from his residence at Buchwara, Dalgate, Srinagar and taken to the local police station. At the time of the arrest, the detenu was not even informed about reasons and grounds of his arrest,” it has said.
The plea has said that Shah is suffering from multiple ailments, including acute renal problem which has aggravated during the course of lodgement at Agra jail.