A group of retried defence personnel and bureaucrats have petitioned the Supreme Court challenging the Presidential orders through which Article 370 of the Constitution of India was abrogated to take away the special status granted to J&K and bifurcate the state into two Union territories.
Among the petitioners are Air Vice Marshal Kapil Kak, Major Gen (Retd) Ashok Mehta, former civil servants Hindal Haidar Tyabji, Amitabha Pande, Gopal K Pillai and Radha Kumar, one of the interlocuters appointed by the Home Ministry in 2010, according to a report in Bar & Bench.
On August 5, the Narendra Modi government had abrogated Article 370, after massive troop deployment and calling off the Amarnath Yatra midway, claiming a terror threat. Since then, the state, especially the Valley, has been under complete lockown with shut down of internet, telephone, mobile and television services to deter any protests against the revocation of special status. The local media was also restricted from reporting or publishing.
According to Bar & Bench, the petition was drawn by advocates Arjun Krishnan, Kaustubh Singh and Rajalakshmi Singh and settled by Senior Advocate Prashanto Sen.
“The petitioner has stated that the erstwhile State of Jammu & Kashmir, though an integrated part of India, enjoyed a special autonomous status which was concretized in Article 370 of the Constitution of India.”, the report says.
Alleging violation of the principles of federalism, the petition says that the Union government has undermined the basic principles of democracy by its action “without ascertaining the will of the people either through its elected government or legislature or through public means such as referenda”, the report said.
As per the order, Article 370 “shall cease to operate only from such date as the President may by public notification declare”. This cannot be done under the proviso to Article 370(3) unless there is a recommendation of the Constituent Assembly of the State to do so.
It pointed out that a Constituent Assembly is “completely different” from a Legislative Assembly, adding that “ Even if such an interpretation that Constituent Assembly is equivalent to Legislative Assembly is possible, the reference to “legislative assembly” must necessarily be to the elected representatives of the people of the state based on adult franchise in a free and fair election.”
Questioning why the Assembly elections were not held as these changes could have been debated in the House, the petition pointed out that there is no reason this could not have been done, as J&K had just witnessed Lok Sabha elections, as also panchayat and civic elections earlier.
Thus, according to the petitioners, the method of altering Article 370 by purporting to apply Article 367 with modifications to the State of Jammu and Kashmir is nothing but a fraud on the Constitution, the B&B report said
The petitioners have therefore sought the quashing of the Presidential order as well as the Jammu and Kashmir (Reorganisation) Act, 2019.
This is the seventh petition filed in the Supreme Court challenging the abrogation of Article 370. Earlier, six other petitions have already been filed and are still pending before the apex court.