New Delhi: Nearly four years after the Govt of India led by BJP scrapped the autonomous status of Jammu and Kashmir (Article 370 of the Indian Constitution), the Supreme Court on Monday announced that it will hear a batch of 20 petitions on 11 July, challenging the constitutional validity of the J&K Reorganisation Act 2019 and the August 5 Presidential Orders nullifying Article 370.
The Bench comprises CJI (Chief Justice of India) Mr Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant.
A wide range of lawyers, activists, politicians and retired civil servants are among the petitioners. They include advocates M L Sharma, Soayib Qureshi, Muzzafar Iqbal Khan, Rifat Ara Butt and Shakir Shabir; National Conference Lok Sabha MPs Mohammad Akbar Lone and Hasnain Masoodi, CPI(M) leader Mohammed Yousuf Tarigami, the Jammu and Kashmir Peoples Conference, Kashmiri artist Inder Salim, and journalist Satish Jacob.
Also among the petitioners are Radha Kumar, a former member of the Home Ministry’s Group of Interlocutors for J&K, Hindal Haidar Tyabji, a former Chief Secretary of J&K, retired Air Vice Marshal Kapil Kak, retired Major General Ashok Kumar Mehta, Amitabha Pande, a former Secretary to the Inter State Council of the Government of India, and Gopal Pillai, a former Union Home Secretary.
Former IAS officer Shah Faesal, activist Shehla Rashid, the People’s Union for Civil Liberties, and the Jammu and Kashmir Bar Association have also petitioned the Supreme Court.
However, Faesal moved an application to get his name deleted from the petition, last year which is co-petitioned by six other people.
The court has also listed for directions on July 11, if the Court will also take up the issue whether the petition by bureaucrat Shah Faesal can be withdrawn.
What Does the petition say:
“Article 370 of the Constitution of India provided the State of Jammu and Kashmir (J&K) special constitutional status. The provision substantially limited Parliament’s power to legislate for the State in comparison to other states. Article 370 was the result of the Instrument of Accession, which was signed by the erstwhile ruler of J&K, Maharaja Hari Singh in 1947. Article 370 was intended to be a temporary provision to allow J&K to transition from an independent princely state to a democratic state under the dominion of India.”
“Over two days, starting from August 5 2019, the Union government diluted Article 370, revoking J&K’s special status. First, President Ram Nath Kovind issued presidential order CO 272. Article 370 could only be amended by the recommendation of the J&K Constituent Assembly.
The presidential order (CO 272) allowed the Union to amend Article 370 without the recommendation of the Constituent Assembly. It did this by amending another part of the Constitution which explains how the Constitution should be interpreted (Article 367). The amendment made it such that the reference to the ‘Constituent Assembly’ in Article 370(3) became a reference to the ‘Legislative Assembly’.
Since J&K was under President’s Rule at the time, the powers of the J&K Legislative Assembly were vested in the Union Parliament. So, a few hours after CO 272 was issued, the Rajya Sabha recommended the abrogation of Article 370, via a Statutory Resolution under Article 370(3).
On August 6, President Kovind issued a Proclamation, CO 273, putting into effect the Rajya Sabha’s recommendation. All clauses of Article 370 ceased to operate, except clause 1 which was amended to state that the Constitution of India applies to the State of J&K. This removed the special status of J&K.
Finally, on August 9, the Union Parliament bifurcated the State of J&K into two Union Territories by passing the Jammu and Kashmir Reorganisation Act, 2019.
The petitions raise broadly two challenges. While the first challenge pertains to the erosion of Article 370, the second one challenges the bifurcation of the State of J&K into two Union Territories. Regarding the first, the petitioners can broadly be said to be applying the ‘doctrine of colourability’.
The doctrine prohibits the passing of legislation which seeks to indirectly do something which is not allowed to be done directly. Article 370(3) prohibits the President from amending Article 370 without the concurrence of the Constituent Assembly. CO 272 and 273 in effect amend Article 370 without the Assembly’s concurrence. The steps in this process are: The Constituent Assembly dissolved in 1957. CO 272 uses Article 370(1)(d) to amend the interpretation provision Article 367, inserting clause 4. Article 367(4) states that the reference to ‘Constituent Assembly of the State’ in Article 370(3) shall mean ‘Legislative Assembly of the State’.
The Rajya Sabha Statutory Resolution recommends the President under Article 370(3) to amend Article 370(1), to make the Constitution of India applicable in the State of J&K.
The Rajya Sabha was able to exercise the powers of the J&K Legislative Assembly because J&K was under President’s Rule at the time. CO 273 uses Article 370(3) to amend Article 370. It removes all clauses, except Article 370(1), which it amends to make the Constitution of India applicable to the State.
Regarding the second, they contend that the Jammu and Kashmir Reorganisation Act of 2019 was unconstitutional under Article 3. Article 3 of the Constitution does not give the Parliament powers to downgrade federal democratic states into a less representative form such as a Union Territory.
The petitioners further contend that in a federal democracy, the right to autonomous self-government, specifically with respect to constitutional and political status, is a fundamental right under Part III of the Constitution and cannot be taken away without the due procedure established by the law.