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Kashmir experts challenge decision on scrapping of Article 370

By Nitya Chakraborty. Dated: 8/22/2019 12:26:13 PM

Tyabji and Kak's petition in Supreme Court assumes special significance

Since August 5, when Home Minister Announced in Parliament the centre's decision to scrap Article 370 and Article 35A of the Constitution, thereby removing the special status granted to Jammu and Kashmir as per the understanding at the time of accession to India, lot of petitions have been submitted to the Supreme Court by the aggrieved sections of the population challenging the actions of the Modi Government.
The Supreme Court has begun hearing of one petition filed by the Kashmir Times Executive Editor Anuradhaa Bhasin pleading for immediate withdrawal of all restrictions on the media and the movement of the media people in Jammu & Kashmir beginning from August 5. The Apex Court in its hearing last week, took the position that the government has to be trusted and two weeks time be given to the government for improvement of the situation. Though the database has not been fixed yet for the next hearing, it is expected next week, however, there are no signs of restoration of normal channel of communications for the media.
The more fundamental issue involving whether the centre's decision violates the Constitution will come up for hearing soon and among the petitions, the one filed by a group of eminent citizens including those who have worked in J&K, has assumed special significance. These persons who have served in Kashmir in high military and administrative positions have jointly filed a petition in the Supreme Court challenging the Presidential order by which changes were made to the Article 370 and argued that the order was constitutionally invalid.
They have also challenged the Jammu and Kashmir Reorganisation Bill, saying that it had downgraded the state by splitting it into two Union Territories without the consent of residents of the state.
The petitioners include Radha Kumar, a former member of group of interlocutors for Jammu and Kashmir (2010-11), Hindal Haidar Tyabji, a former IAS officer belonging to Jammu and Kashmir cadre, Air Vice Marshal (retd) Kapil Kak, Major General (retd) Ashok Kumar Mehta, Amitabha Pande, former member of Punjab cadre of IAS and Gopal Pillai, a former IAS officer of Kerala cadre who retired as Union Home Secretary in 2011.
Stressing that the scrapping of state's special status had no sanction from the people of Jammu and Kashmir, their petition described the amendments as striking at the heart of the principles on which the state integrated with India.
The petition stated that a presidential order under "Article 370(3) of the Constitution requires the Constituent Assembly of Jammu and Kashmir to recommend a presidential notification under Article 370(3) declaring that Article 370 shall cease to be operative".
But, the petition added, "the Jammu and Kashmir Constituent Assembly no longer exists and thus could not have made a recommendation to that effect."
It pointed out that an amendment has been made to Article 367 of the Constitution of India by which the reference to the expression "Constituent Assembly of the State" has been read as "Legislative Assembly of the state".
"It seeks to force an interpretation of Article 370(3) which would not be possible on a plain reading of the terms of the Article 370(3) of the Constitution of India," it stated, adding that "at present, there is no Constituent Assembly, which is in existence, and hence a fundamental condition for the invocation of Article 370(3) is absent."
Maintaining that the Legislative Assembly of the Jammu and Kashmir does not have the power to alter the state's relationship with Union of India on account of Article 147 of the Constitution of Jammu and Kashmir, the petition further stated that the Centre's move undermined the very basis on which the (erstwhile) state of Jammu and Kashmir had integrated into India. "Both the Instrument of Accession as also Article 370 envisage a special autonomous status of the Jammu and Kashmir which could only be changed upon a recommendation of the Constituent Assembly."
The petition asserted that the government move has violated the basic principle of democracy, federalism and fundamental rights. "This declaration had been made with the concurrence of the Governor at a time when the state of Jammu & Kashmir was under President's rule," it stated, adding that "the powers under President's rule are co-terminus with that of the Legislative Assembly of the state of Jammu and Kashmir and the Legislative Assembly of Jammu and Kashmir is barred from seeking to make any change in the provisions of the Constitution of India as applicable in relation to the state."
It further read, "It has been completely overlooked that the object of transfer of power of the state Legislature to the Parliament under the state of emergency under Article 356 is of a purely temporary nature during the existence of a proclamation under Article 356. Such a power could not have been used to change the very nature of the state or federal unit and to denude the power of the state Legislature itself."
All the petitioners are veterans who have been involved in assessing the situation in J&K for decades. Their insight perception and experience are of immense value and they know the J&K's polity and social convulsions from A to Z. this petition has given a new dimension to the present debate on the constitutional validity of the Modi Government's decisions.
—(IPA Service)