The Leaflet

| @theleaflet_in | August 17,2019

[dropcap]N[/dropcap]OTED Kashmiri artist Inder Salim alias Inder Ji Tickoo and a veteran journalist Satish Jacob have jointly approached the Supreme Court challenging recent Presidential orders on Article 370 and bifurcation of Jammu and Kashmir into two Union Territories.

The petitioners said that the manner in which the Presidential orders have been issued and the Jammu and Kashmir Reorganisation Act, 2019 passed amid clampdown and communication blackout in Jammu and Kashmir, it not only violates the provisions of Article 370 but also breaches the solemn constitutional guarantees made to the people of the state.

It went on to add that the government move undermines the Constitution of India and amounts to a brazen breach of India‘s International contractual obligations.

“Since no change could have been brought about in Article 370 without the democratic will of the people of Jammu and Kashmir, the Union of India acted upon a well-thought out stratagem, cleverly devised with the specific intent of evading mandatory constitutional requirements, invading settled Rights of constitutional bodies and brazenly defiling and defacing the federal Constitutional scheme and legislative intent”, the petition read.

Here’re major takeaways from the petition:

 

  • The ruling party first entered into an alliance with the People‘s Democratic Party [PDP] in the state of Jammu and Kashmir and formed the state coalition government. It then prematurely withdrew support from the alliance and let the state government collapse. Thereafter, on the ground that the government had collapsed, the central government (acting through the Governor) first imposed Governor‘s rule in the State and, then, followed it up with President‘s rule.
  • Consequently, the powers and functions of the state government were assumed by the President and those of the Legislative Assembly became exercisable by Parliament. While President’s rule was still in operation, the powers of the state government were being exercised by the President and those of the state Legislature were exercisable by Parliament, the President issued an order purportedly in concurrence with the state government to amend Article 367 of the Constitution. Since the President himself was exercising the powers of the state government, he issued the order in concurrence with himself.
  • The amendment made in Article 367 resulted in a consequential amendment to Article 370, which could not have been done without the prior recommendation of the Constituent Assembly. Article 370 was, therefore, indirectly modified by a backdoor method by pressing into service an interpretational clause for making a substantive amendment.
  • The modification thus made to Article 370, resulted in making it possible for the President to abrogate the said Article upon the recommendation of the State Legislature;
  • Since, on account of the ongoing President’s rule, the functions and powers of the state Legislature were exercisable by Parliament, the President fully abrogated Article 370 upon a purported recommendation of Parliament, which could not have been done

 

Maintaining that Article 367 is a provision dealing with interpretation of terms, the petition argued that “the amendment made to Article 367 is not merely interpretational; it is substantive as it literally deletes the expression ‘Constituent Assembly of the state’ referred to in clause (2) and substitutes it with ―Legislative Assembly of the State‖, resulting in a complete modification of Article 370.”

It added that a substantive amendment to Article 367 itself could have been brought about only by following the procedure prescribed in Article 368 and not by a Presidential order.

“The Union of India has deliberately kept the people of Jammu and Kashmir, who agreed to accede to India only on the basis of the terms of that Article 370. Without their democratic will the Article could not have been touched,” the petition further read.

The government move, according to the petition, has resulted in a direct violation of the fundamental rights guaranteed to the people of Jammu and Kashmir under Articles 14, 19 and 21 of the Constitution of India.

The petition—which has been drawn by Dr. Saif Mahmood and filed through advocate-on-record D. Abhinav Rao—can be read here: 

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