Article 370: Petition filed in Supreme Court against Centre’s notification on J&K

Advocate says the move was unconstitutional and illegal

A writ petition was filed in the Supreme Court on Tuesday challenging the August 5 notification of the Constitution (Application to Jammu and Kashmir) Order of 2019, which amends Article 370 of the Indian Constitution and scraps its 65-year-old predecessor — The Constitution (Application to Jammu and Kashmir) Order of May 14, 1954 — as unconstitutional, illegal and arbitrary.

The petition filed by advocate M. L. Sharma is likely to be mentioned before Justice N.V. Ramana on Wednesday. The Chief Justice of India and Justice S.A. Bobde, the second senior most judge, are sitting in a Constitution Bench in the Ayodhya title suit appeals. Justice Ramana is ranked third in seniority.

Mr. Sharma said his petition refers to how the political leaders of Jammu and Kashmir were detained/arrested before the issuance of the August 5 notification. There was no meaningful legislative or representative debate, he submitted.

By junking the 1954 Order, the notification takes away the special rights and privileges enjoyed by the residents of Kashmir. It has effectively allowed the entire provisions of the Constitution, with all its amendments, exceptions and modifications, to apply to the area of Jammu and Kashmir, the petitioner contended. The 2019 notification superseded the 1954 Order and declared that “all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir”.

The August 5 notification has been issued under Article 370 of the Constitution. In short, the government employed Article 370, which had once protected the 1954 Order giving special rights to the people of J&K, to scrap the more than 60-year-old Order. The government justified the notification by saying that it closes the “chasm” between residents of J&K and citizens of other parts of the country.

The second part of the August 5 notification dealt with the addition of a new clause to Article 367, which amends the proviso to clause (3) of 370. Article 367 deals with the applicability of the General Clauses Act, 1897, to interpret the provisions of the Constitution. The August 5 notification amends the expression “Constituent Assembly”, contained in the proviso to clause (3) of Article 370, to mean “Legislative Assembly”.

Clause (3) of Article 370 gives the President power to end the special rights and privileges of the people of J&K under the 1954 Order. However, the clause carried the rider that the President had to first get the consent of the Constituent Assembly of J&K before issuing such a notification. This rider or check on the President’s power was intended to give the people of the State a say in their own future.

However, the Constituent Assembly ceased to exist in 1956 and did not abrogate Article 370, which was deemed to be a permanent feature of the Constitution.

The August 5 notification tided over the obstacle of a non-existent ‘Constituent Assembly’ by amending the expression in the proviso to ‘Legislative Assembly’. An amendment in Article 370 should have undergone the constitutional amendment procedure envisaged under Article 368 of the Constitution, the petitioner said.

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Printable version | May 24, 2020 7:48:24 PM |

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