National Conference has filed a petition in the Supreme Court challenging Centre’s move to remove special status granted to Jammu and Kashmir and bifurcate it into two Union Territories. Parliament had passed a resolution supporting the presidential order abrogating Article 370 which conferred J&K, special status and a bill to reorganize the state into two Union Territories of Jammu-Kashmir and Ladakh on August 5-6.
National Conference leaders, Mohammad Akbar Lone and Hasnain Mahsood filed the petition on party’s behalf.
Challenging the bifurcation of J&K, NC’s petition says, “The Jammu and Kashmir (Reorganisation) Act, 2019 is constitutionally invalid.”
It goes on to raise further legal questions. “The Power under Article 370(1)(d) does not extend to a wholesale replacement of the Constitution of Jammu and Kashmir.” Says the petition.
The petition suggests that the Central government’s decision amounted to “taking its own consent” since the Presidential Order (to revoke Article 370) was issued on the concurrence of J&K Governor and not of J&K government.
“The Presidential Order substitutes the concurrence of the Governor for that of the Government (and effectively, therefore, amounts to the Central Government (acting through the President) taking its own consent (under President’s Rule) to change the very character of a federal unit.” The petition said.
The status of the state of Jammu and Kashmir, the petition alleges, was changed “irreversibly” without “the concurrence of the people of the State acting through their elected representatives” (J&K Assembly) and therefore amounted to “an overnight abrogation of the democratic rights and freedoms guaranteed to the people of the State of Jammu and Kashmir upon its accession.”
The petition goes on to question the bifurcation of Jammu and Kashmir by claiming that the federal scheme of Indian constitution doesn’t permit Parliament to downgrade the statehood.
“It is respectfully submitted that the Indian federal scheme – as exemplified by Article 1 and Article 3 of the Indian Constitution – does not permit Parliament to retrogressively downgrade statehood into a less representative form such as a Union Territory,” reads the portion challenging the Jammu and Kashmir Reorganisation Act, 2019.
National Conference leader Omar Abdullah had attacked the Centre on the day Rajya Sabha cleared the resolution. He had called it ‘deceit and stealth’ and warned that it will have ‘dangerous consequences’.
“Government of India’s (GoI) unilateral and shocking decisions are a total betrayal of the trust that people of Jammu and Kashmir had reposed in India when they acceded to it in 1947…GoI has resorted to deceit and stealth to lay ground for these disastrous decisions,” the former chief minister said in a statement issued after Home minister Amit Shah introduced the resolution in Rajya Sabha on August 5.
Another regional leader, Mehbooba Mufti of the PDP had also attacked the Centre over the move and called it ‘the darkest day in Indian democracy’.Her party’s MPs Nazir Ahmad Laway and MM Fayaz had attempted to tear the constitution when the bill was introduced in the upper house. Fayaz also tore his kurta in protest.
The scrapping of Article 370 has led to split legal opinion on the validity of Centre’s move, while several legal experts agree that the J-K Governor had the authority to recommend abrogation of Article 370 in the absence of J&K Assembly which had been dissolved, several others suggest, it was against the spirit of the Article.
Whether Article 370 should have been treated as a permanent or temporary provision, has also been debated by legal luminaries and political parties across the spectrum.
Parties in Jammu and Kashmir suggest that special provisions in Article 370 enabled J&K’s accession to India and disabling it would cast a long shadow on the act of accession itself.
Under Article 370 of the constitution, the state of Jammu and Kashmir enjoyed complete autonomy and the state legislature was free to draft its own laws except in the areas of communications, defense, finance, and foreign affairs, while non-state subjects were prohibited from purchasing land in the state.