After four years, the Supreme Court decided to hear (Number:WP (C) 1013/2019 challenged by Petitioner Manohar Lal Sharma; “We the Citizens; Dr. Charu Wali Khanna; Mohammed Akbar Lone; Hasnain Masoodi; Shakir Shabir; Anuradha Bhasin”. While famous Lawyers who were challenging this question Raju Ramachandran; Gopal Sankaranarayanan; M.L. Sharma; Shakir Shabir;)The act of Government on August 5th and 6th, 2019, throws a serious challenge before Supreme Court. Which is constitutionality of the Presidential Orders that removed Jammu and Kashmir’s special constitutional status, and the Jammu and Kashmir Reorganisation Act, 2019[1], which bifurcated the State into two Union Territories.Two additional petitions on Article 32 were filed by Kashmiri advocate Shakir Shabir and the Jammu and Kashmir National Conference leaders, Mohammed Akbar Lone and Hasnain Masoodi.
J & K to become State.
On 30th August, the Chief Justice of India D.Y. Chandrachud was given a very important assurance by Central Government on 31st August, i.e., tomorrow. gave the Centre leeway to claim it had converted Jammu and Kashmir (except Ladakh) into a Union Territory for a “stipulated period” in order to protect national security, but pushed the government to commit to a time frame by which it will be restored to a full-fledged State.
“We will make a positive statement the day after tomorrow [August 31] on Jammu and Kashmir. Ladakh will, however, remain a Union Territory,” Solicitor-General Tushar Mehta informed the court, saying, the Centre said the Union Territory status of Jammu and Kashmir was not a permanent feature…He said elections in Ladakh would be over in September”. Mr. Mehta said in the Parliament from day one “Jammu and Kashmir will return to being a State after return to normalcy,” he assured.
Chief Justice had asked the Solicitor-General, and Attorney-General R. Venkataramani, to secure instructions from the government on the period of time within which Jammu and Kashmir would return to being a State. CJI said: “…When will you restore J&K Statehood…We do not want to bind you… We understand there are matters of national security involved… We know that preservation of the nation is the overriding concern… So, without putting you [the Solicitor-General] or the Attorney-General in a bind, can you seek instructions on whether there is some time frame? The government has to make a statement before us that the progression back to Statehood will take place within a time… that this is not a Union Territory permanently… had reminded the Centre that the “restoration of democracy is a vital component for our nation”.
The court also voiced its apprehensions about the source of the Parliament’s power to convert States to Union Territories even as Mr. Mehta said the case of J&K, which has seen violence and cross-border terrorism for decades, was “one of its kind”.Justice Sanjay Kishan Kaul said there was a “problem” with the Centre’s argument that J&K was one of its kind. He pointed to Punjab, another border State which saw violence, and the northeastern States. “We cannot choose our neighbours. What the Chief Justice apprehends is would you go ahead and reorganise any of these States when you see trouble? You cannot say that just because it is a border State, it has to be treated differently,” Justice Kaul observed.
Point to be noted is that this major change in the Constitutional authority which is not Constitutionally provided in our Constitution of India. On August 5th, 2019, President Ram Nath Kovind issued a presidential order (C.O. 272)[2] amending Article 367 of the Constitution which explains how the Constitution should be interpreted. The amendment made it such that the reference to the ‘Constituent Assembly’ in Article 370(3) became a reference to the ‘Legislative Assembly’. Initially, Article 370 could only be amended by the recommendation of the Jammu and Kashmir ‘Constituent Assembly’.
C.O. 272 allowed the Union to amend Article 370[3] without the recommendation of the Constituent Assembly. Since Jammu and Kashmir was under President’s Rule at the time, the powers of the Jammu and Kashmir Legislative Assembly were vested in the Union Parliament. So, a few hours after C.O. 272[4] was issued, the Rajya Sabha recommended the abrogation of Article 370, through a Statutory Resolution[5].
A Constitution Bench presided by the Chief Justice has been hearing (and live streaming) oral arguments, will surely change political history and ‘the recovering of the special status of Jammu and Kashmir’.
These issues are four: First, can Article 370(1)(d) be validly used to alter the interpretation of Article 370, as was done by presidential order CO 272? Second question is “do the Statutory Resolution and CO 273 violate the fundamental democratic rights of the people of J&K under Articles 14 and 21 of the Constitution, by abrogating Article 370 without their consent during President’s Rule?”, The most agitating point is “does the Jammu and Kashmir (Reorganisation) Act, 2019 violate Article 3 and Part III of the Constitution?”
On August 9, 2019, the Union Parliament bifurcated the State of Jammu and Kashmir into two Union Territories by passing the Jammu and Kashmir Reorganisation Act, 2019. The two new Union Territories are Jammu and Kashmir and Ladakh—only the former retained a legislative assembly.
Among them are a few excerpts from Anuradha Bhasin’s book The Dismantled State: The Untold Story of Kashmir, which deep dives into the region’s history and the lived experience of its people.
This challenge constitutional promises: ‘India is a Union of States’, the ‘concurrence’ and ‘consultation’ of a state government, the ‘satisfaction’ of a President that ‘government cannot be carried on in accordance with the provisions of the Constitution.’ It was it beyond the letter of the Constitution.
Article 367, Part XIX, says:
Interpretation
(1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.
(2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a Governor, as the case may be.
(3) For the purposes of this Constitution “foreign State” means any State other than India:
Provided that, subject to the provisions of any law made by Parliament, the President may by order declare any State not to be a foreign State for such purposes as may be specified in the order.[6]
It has taken four years since the fateful abrogation for the case to make its way to the Bench. For the past many decades, Jammu and Kashmir has lived on the fault lines: disputed borders, contested populations, wars and military occupations, forced disappearances, shrinking civil liberties, a repressed press that leaves countless stories untold. All this time, J&K has remained ripped off its statehood, bereft of a representative government. It effected invocations of the spirit, and the delicate fabric of federalism. It raised a down whether the court can sustain to hold the country together. Some examples are from a few excerpts from Anuradha Bhasin’s book The Dismantled State: The Untold Story of Kashmir, which deep dives into the region’s history and the lived experience of its people.
In court, Kapil Sibal warned that the issues that will need consideration were “never raised, never decided by this court.” Solicitor General Tushar Mehta declared that Article 370 promoted a “psychological duality” which was being taken advantage of by “forces against India.” While arguing for the petitioners, Gopal Sankaranarayanan explained the principle of “obsta principiis”: when something is damaging in the beginning itself, he said, we should nip it in the bud.
[1]Jammu and Kashmir Reorganisation Act, 2019https://www.scobserver.in/wp-content/uploads/2021/09/AAA2019__34.pdf
[2]Presidential Orders of 2019 on August 5th, 2019, CO 272 https://www.scobserver.in/wp-content/uploads/2021/09/370_PO_CO2721.pdf
[3] Article 1, https://www.constitutionofindia.net/articles/article-1-name-and-territory-of-the-union/Name and Territory of the Union(1) India, that is Bharat, shall be a Union of States.(2) The States and the territories thereof shall be as specified in the First Schedule.(3) The territory of India shall comprise —
(a) the territories of the States;(b) the Union territories specified in the First Schedule; and
(c) such other territories as may be acquired.
[4] Notification August 6, 2019, CO 273https://www.scobserver.in/wp-content/uploads/2021/09/370_PO_CO273_proclamation.pdf
[5] Statutory Resolution as recommended by Rajya Sabha https://www.scobserver.in/wp-content/uploads/2021/09/S050819.pdf
[6]Article 367, Part XIX
