[dropcap]S[/dropcap]HAKIR Shabir, a practising advocate from Kashmir, has approached the Supreme Court challenging the President’s Order of August 5, 2019, amending the text of Article 367, which in turn paved the way for amending Article 370 of the Constitution, making the whole of the Constitution of India applicable in Jammu and Kashmir.
In his petition, Shabir has stated that the action taken by the Union Government was reckless and absent of any power or constitutional authority.
The order issued by the President of India is arbitrary and whimsical without following the due process of law as laid by the Constitution of India and without the mandate of both the people of the state of J&K as well as their elected representatives, Shabir has alleged.
“The lives of millions of the inhabitants of the region of Jammu and Kashmir are jeopardized by the respondent (Union of India), by passing the constitutional order illegally through the back door”, he has said.
Shabir has also asserted that the Governor of the State of Jammu and Kashmir had exercised his power illegally, without the aid and advice of the Council of Ministers, who are the elected representatives.
The decision was taken unilaterally by the Executive without any consultation with the legislative assembly of the state, he has claimed.
The people of the region, he said, had been forcefully detained in their homes and the entire state has been turned into a garrison.
The very fundamentals of a democratic nation have been shaken by the illegal and arbitrary actions of the respondents, Shabir has asserted, even as he prayed for the quashing of the President’s order.
Background
On August 5, 2019, the President had issued an order called “The Constitution (Application to Jammu and Kashmir) Order, 2019” which in effect made Article 370, which provided for special status to Jammu and Kashmir, redundant.
The order had been issued by the President in exercise of the power vested in him under Article 370(1) of the Constitution of India. The order read as follows:
“…..2. All the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows: To article 367, there shall be added the following clause, namely: (4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir
(a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;
(b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;
(c) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and
(d) in the proviso to clause (3) of Article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”.
The Union Home Minister Amit Shah had moved a resolution to this effect in the Rajya Sabha and Lok Sabha, which read as follows:
“That this House recommends the following public notification to be issued by the President of India under Article 370 (3):
‘In exercise of the powers conferred by Clause (3) of Article 370 read with clause (1) of article 370 of the Constitution of India, the President, on the recommendation of the Parliament, is pleased to declare that, as from 5th of August, 2019, all clauses of the said article 370 shall cease to be operative except clause (1) thereof which shall read as under, namely:
“All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, byelaw, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.”
Subsequently, the President of India on August 6, 2019 signed an order declaring that all clauses of Article 370 of the Constitution of India would cease to be operative from August 6, 2019, except the following:
“370. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.”
The Presidential Order had come on the recommendation of the Parliament to the effect that Article 370 would cease to exist from the date the President of India issues a notification in this regard, after the recommendation of the Parliament. Consequently, the Constitution of India would be applicable to Jammu and Kashmir, on par with other states and union territories of the country.
The Parliament also passed “The Jammu and Kashmir Reorganization Bill, 2019” on August 6, 2019 seeking to bifurcate the state of Jammu and Kashmir by forming two new union territories – the Union Territory of Ladakh comprising “Kargil and Leh districts” and the Union Territory of Jammu and Kashmir comprising the territories of the existing State of Jammu and Kashmir other than Kargil and Leh.
