[dropcap]F[/dropcap]ORMER IAS officer Shah Faesal and JNU alumnus Shehla Rashid, along with five others, have challenged in the Supreme Court the abrogation of the special status of Jammu and Kashmir and its bifurcation into two Union Territories.
In a petition before the Supreme Court Faesal and others have challenged the Presidential order that cancelled the special status of Jammu and Kashmir and also the Jammu and Kashmir Reorganization Act, 2017 which bifurcated the state into the Union Territories of Ladakh, comprising Kargil and Leh districts, and Jammu and Kashmir.
The petition, which begins with the submission that the state of Jammu and Kashmir is an integral part of India, contends that the unilateral action of the Union of India not only alters the relationship of the Union with the state of Jammu and Kashmir but is also unconstitutional and a frontal attack on the principles of ‘federalism’, ‘democracy’ and ‘the rule of law’, protected and guaranteed under the provisions of the Constitution of India, including its Part III and enforceable under Article 32 of the Constitution.
The petitioners have contended that the state of Jammu and Kashmir required an effective political solution to deal with militancy in the Kashmir Valley. Recent decisions of the Union of India, according to the petitioner, undermine the cherished values of ‘federalism’, ‘democracy’ and ‘the rule of law’, do not and cannot offer such a solution.
“The federal polity as provided for and practiced under the Constitution of India is sui-generis – for it takes into account the special needs and histories of different States. Accordingly, special provisions were made in respect of many States. Article 370 represents one such special relationship between India and the people of the State of Jammu and Kashmir”, say petitioners in their plea to the apex court.
The petitioners have contended that earlier decisions of the apex court have noted that the framework provided for under Article 370 has near permanence. Changes to the relationship between India and the state of Jammu and Kashmir within the framework of Article 370 thus necessarily required the consent of the people of the State, as expressed by a popularly elected government, either by way of a recommendation from the State Constituent Assembly or by way of the concurrence of the state government.
According to the petitioners, the Presidential Order dated August 5 & 6, 2019 are unconstitutional as the concurrence of state government taken is unconstitutional for the following reasons :
- The order issued by the President under Article 370(1) of the Constitution, has been issued pursuant to the “concurrence” of the government of Jammu and Kashmir, despite there being no popularly elected government in the state under the provisions of the Constitution.
- The state of Jammu and Kashmir has been under the President’s rule under Article 356 of the Constitution of India (applied under the 1954 Order) since June 2018, and all routine decisions of the Government of the State are taken by the Governor, who himself is a delegate of the President under the presidential proclamation issued under Article 356(1)(a). Therefore, the concurrence of the government of the State provided by the Governor does not express the will of the people, as the Governor is merely substituting for a popularly elected government, as an emergency measure under Article 356 of the Constitution.
- The state of Jammu and Kashmir has the right to decide who will provide consent on its behalf, as held in a Constitution Bench decision of this Court in Mohd Maqbool Damnoo v. State of Jammu & Kashmir 1972 SCR 2 1014. Since Jammu and Kashmir had constituted themselves into an elected republican government under the terms of the Constitution of Jammu and Kashmir, the only authority whose concurrence would be valid under Article 370(1)(d) is the concurrence of an elected government.
- Once the state of Jammu and Kashmir has chosen to be represented by an elected republican form of government under its Constitution, any constitutional functionary under the Indian Constitution must consult with a broad base of citizens and to deliberate on giving the concurrence for such a move is not only a requirement of Article 14 of the Constitution, wherein it is an obligation of the State to consider all relevant factors before such concurrence, but the practice of such democracy, as a deliberative democracy is a basic feature of the Constitution and operates as an implied limitation to the exercise of such power. Therefore, an exercise of power in the instant case to give concurrence to a radical change to Article 370(3) is a violation of the basic structure of the Constitution.
- Taking the concurrence of the state of Jammu and Kashmir at the time of such emergency in the State and absence of a popularly elected government is in violation of the principles of democracy, which is a basic feature of the Constitution (see S.R. Bommai v. Union of India (1994)3 SCC1); further, substituting the concurrence of State with concurrence by Governor under President’s Rule, thereby ignoring the need for significant political decisions flowing from a popularly elected government, is equally a violation of democracy. It is further an abuse of the provisions of Article 356 of the Constitution and a fraud on the Constitution of India, not dissimilar to abuse of the constitutional device of executive legislation under ordinance making powers – which has been held to be a fraud on the Constitution (See Krishna Kumar Singh v. State of Bihar 2017(2) SCJ 136)
- Any constitutional authority under the Indian Constitution must respect the decision of the State to be represented by a popularly elected government enabling democratic participation of people.
- A conjoint understanding of federalism and democracy requires the Union to respect and defer to the popularly elected government and the elected legislatures insignificant decisions concerning the state.
- Such concurrence provided by the Government is in effect manifestly arbitrary and irrational and unreasonable non-consideration of relevant factors and therefore in violation of Article 14 and unconstitutional. Such manifest arbitrariness and non-consideration of relevant factors is evidenced and further aggravated by the fact that the entire state is in a near lock-down mode since at least August 2 last and the evidence on record indicates how the proposal for the order under Article 370 did not reach the governor until the night of August 3 and that it is a factual impossibility of the governor having consulted or held dialogue with any of the officers of the state and any community representatives or civil society organisations. Taking the concurrence of a state government when the freedoms of the people are particularly restrained with Section 144 of the Code of Criminal Procedure, is clearly of a coercive nature.
Further, the petitioners have asserted that the said Presidential order is unconstitutional for exceeding the limits of the power of ‘modification’ under article 370(1). To buttress the argument on this point, the petitioners have given following grounds-
Through Article 370 (1)(d), the President – instead of merely modifying Article 367(4) of the Constitution of India as applied to the state of Jammu and Kashmir – has:
- Created a wholly new and substantive power in the hands of the Legislative Assembly of the State of Jammu and Kashmir, to recommend revocation of Article 370 under clause (3), to the President of India,
- Overridden the entire constitutional form of the state of Jammu and Kashmir by superseding the 1954 Order and applying all the provisions of the Indian Constitution to the State,
- By way of such supersession and creation of new substantive powers under Article 370(3) above described, has superseded the Constitution of the State of Jammu and Kashmir.
On J&K Reorganization Act, 2019, the petitioners have submitted that the passage of the legislation was enabled only by assuming the validity of the Presidential orders, noting that both of them are individually and independently unconstitutional.
The impugned Act, according to the petitioner, is clearly in violation of Article 3 of the Constitution insofar as the character of a state can be changed only under the procedure prescribed within Article 3 of the Constitution. Under the article, it is impermissible for Parliament to extinguish the character of the state in its entirety and create two union territories from it going against the federal structure of the constitution and violating the basic structure doctrine. Taking recourse to Article 3 in terms of the reconstituting Jammu and Kashmir is different from what has been done in the case of carving out states from existing states, like Telangana for instance, it stated.
Following the provisions under Article 3 of the Constitution in letter and spirit is an essential safeguard of India’s federal character and the principle of federalism, a basic feature of the Constitution, and has clearly not been followed in the case.
Petition has been jointly drawn by advocate Prasanna S, Aakarsh Kamra, Malavika Prasad, Jayavardhan Singh, Gautam Bhatia and Rupali Samuel.
The petition is slated for hearing tomorrow, August 28, before a three-judge bench comprising the Chief Justice of India Ranjan Gogoi, Justices SA Bobde and Abdul Nazeer. The court will also take up other similar petitions for consideration along with the present petition.