The President’s proclamation to scrap the special status accorded to Jammu and Kashmir on August 5 and the subsequent “rushing through” of the State’s reorganisation law by Parliament amounted to an “irreversible” alteration without taking the consent of the Kashmiri people, their elected representatives or any institutions established by the State of Jammu and Kashmir under the law, IAS topper-turned-J&K political leader Shah Faesal contended in his petition before the Supreme Court on Tuesday.
The plea by Mr. Faesal, represented by senior advocate Raju Ramachandran, was the first to be heard from among a bunch of petitions challenging the legality of the Presidential proclamation of August 5, abrogating the special status of J&K by blunting Article 370 of the Constitution. The petition also challenges the constitutionality of the Jammu and Kashmir Reorganisation Act of 2019.
J&K was under President’s Rule (under Article 356) from December 19, 2018, to October 31, 2019 — when the Reorganisation Act, bifurcating the State into the Union Territories of J&K and Ladakh, came into effect. The people of J&K have been facing restrictions in movement and communication since August 5 when several political leaders and activists were detained. Mr. Faesal is also still under detention, Mr. Ramachandran told The Hindu .
In the day-long hearing before a Constitution Bench led by Justice N.V. Ramana, Mr. Ramachandran said the J&K reorganisation law was enacted when the State was under President’s rule. When a State is under President’s rule as per Article 356 of the Constitution, the Parliament takes on the mantle of the State’s legislature.
But Parliament’s legislative powers in such cases tend to be only “temporary and restorative”, the petitioner argued. Mr. Faesal contended that Parliament cannot take any irreversible decisions concerning the State, which a constitutionally elected government and a competent State legislature cannot subsequently undo. In the case of J&K, Parliament had used its temporary legislative powers to ‘illegally’ change the very character of a State, the petitioner asserted.
“The Reorganisation Act, 2019, is manifestly ultra vires the Constitution of Jammu & Kashmir, which not only recognises and mandates the status of Jammu and Kashmir as a ‘State’ but also defines its territory under Article 4,” Mr. Ramachandran submitted.
Attorney-General K.K. Venugopal, however, objected to the assertion made in Mr. Faesal’s petition that not a single member of Parliament had seen the reorganisation Bill before its introduction in the House.
Mr. Ramachandran said the abrogation of the special status was done without the consent of the Kashmiri people. The will of the local people was neither known nor sought before the President’s proclamation on August 5. There was no prior discussion with the public. Nor was there any consent or concurrence taken from the State Assembly as required under Article 370. The ‘cloak’ of President’s rule in the State did away with the need for people’s participation and consent.
“The President does not acquire the constituent powers of the Government of the State of Jammu & Kashmir under Article 370(I)(d), to give concurrence to a modification of the Constitution as applied to the State. Hence such power to give concurrence cannot be exercised by the Governor either, as he is merely a delegate of the President in the State, under President’s Rule,” Mr. Ramachandran submitted.
The President, the petitioner argued, should have governed J&K in accordance with the Indian Constitution and the Constitution of Jammu & Kashmir.
