Two Lok Sabha MPs of the National Conference moved the Supreme Court on Saturday, urging it to declare the Presidential orders revoking the special status of Jammu and Kashmir, and the law reorganising the state into two Union Territories, as unconstitutional.
The petition focussed its challenge on the Centre’s use of Article 370 to undo Article 370, and on the manoeuvre of taking what amounted to its own consent, to change the federal character of the Union.
Also on Saturday, the Executive Editor of the Kashmir Times daily newspaper moved the Supreme Court against the “communication blackout” in Jammu and Kashmir, and sought directions to authorities to take steps to ensure free and safe movement of reporters, journalists, and other media personnel.
In their petition, Mohammad Akbar Lone, MP from Baramulla, and Hasnain Masoodi (Anantnag), said that “the impugned Presidential Orders and Jammu and Kashmir Reorganisation Act unconstitutionally undermine the scheme of Article 370 (of the Constitution)”.
One of the Presidential Orders, they said, “uses Article 370(1)(d) — which was meant to apply other provisions of the Constitution to the state of Jammu and Kashmir — to alter
Article 370 itself, and thereby, the terms of the federal relationship between the state of Jammu and Kashmir and the Union of India”.
Pointing out that the Order was passed when the state was under Presidents’ Rule, the petition says that it “substitutes the concurrence of the Governor for that of the Government and effectively, therefore, amounts to the Central Government… taking its own consent… to change the very character of a federal unit”. “In other words, the Presidential Order takes cover of a temporary situation, meant to hold the field until the return of the elected government, to accomplish a fundamentally, permanently, and irreversibly alteration of the status of the State of Jammu and Kashmir without the concurrence, consultation or recommendation of the people of that State, acting through their elected representatives.”
State’s consent, use of Art 370
The main arguments in the plea are against the Centre’s use of Article 370 to alter Article 370, and substituting the concurrence of the state Assembly with concurrence of the Governor — which amounts to the Centre taking own consent to change the character of a federal unit.
This, the MPs have argued, “amounts to an overnight abrogation of the democratic rights and freedoms guaranteed to the people of the State… upon its accession”. The petitioners have also objected to the amendments making the Constitution of India applicable to J&K. The Order, they have said, “undermines one of the basic purposes of Article 370, which was to facilitate the extension of constitutional provisions to the State in an incremental and orderly manner, based upon the needs and requirements at a particular time, without dismantling the state Constitution”.
The question, the petition says, is whether the Centre can “unilaterally unravel” the country’s federal scheme “under cover of President’s Rule, while undermining crucial elements of due process and the rule of law”. This, the MPs have said, “goes to the heart of Indian federalism, democratic processes and the role of this Hon’ble Court as the guardian of the federal structure”.
On the rationale for Article 370, the petitioners have said that the framers of the Indian Constitution believed that national integration would be best served by a pluralistic federal model.
“Under this model, one size need not always fit all, and the requirements of different states — based on unique historical, cultural, social, and political factors — could be accommodated within the overall constitutional framework.”
Lone and Masoodi have also argued that the Constitution does not allow the downgrading of the state to a Union Territory.
“…The Indian federal scheme — as exemplified by Article 1 and Article 3 of the Indian Constitution — does not permit Parliament to retrogressively downgrade statehood into a less representative form such as a Union Territory,” the petition says, adding that the Supreme Court has “repeatedly held that federal republican democracy is a basic feature of the Indian Constitution”.
According to the petitioners, “the right to autonomous self government and to one’s identity within a federal framework are essential fundamental rights”. These “valuable rights”, they have said, “have been taken away without the procedure established by law”, in a manner that “violates every canon of Constitutional morality”.
In her plea, the Executive Editor of Kashmir Times, Anuradha Bhasin, said that the “strict and harsh curfew-like restrictions on movement imposed by the State through the heavy presence of police and military forces, using barricades, checkpoints, etc., are enforced in a manner so as to restrict and block the movement of reporters and journalists in the Kashmir valley, and the same is excessive, disproportionate and gross abuse of State power in violation of the rights and in derogation of the duty of the free press”.
The petition said that the Srinagar edition of the Kashmir Times could not be circulated on August 5, and the newspaper has not been published since then. The paper’s Jammu office has no means to communicate with its Srinagar office “due to the communication blackout enforced by the State”. Bhasin said she feared for the safety of the journalists, reporters, and other staff of Kashmir Times working in the Srinagar office, with whom she is unable to have any contact or communication.
Besides these two petitions, three other petitions related to the developments in Jammu and Kashmir are already pending before the top court.
One of these is by activist Tehseen Poonawala who has sought directions for lifting of the curfew, release of arrested political leaders, and restoration of Internet services. The plea has been listed for hearing before a Bench headed by Justice Arun Mishra on August 13.
Advocate M L Sharma has filed a petition challenging the notification amending Article 367.
Shakir Shabir, a lawyer from Kashmir, moved the court on Friday, also contending that the notification amending Article 367 was illegal, unconstitutional, void ab-initio and ultra vires the Constitution.
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