Saturday, September 30, 2023

Supreme Court begins hearing on petitions challenging abrogation of Article 370

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The Supreme Court Constitution Bench comprising Justices N V Ramana, Sanjay Kishen Kaul, R Subhash Reddy, B R Gavai and Surya Kant are hearing today the petitions against the validity of abrogation of Article 370 of the Constitution of India by President’s order, which revoked the special status of Jammu and Kashmir.

Advocate ML Sharma, who is one of the petitioners requests the bench to hear the case in the largest courtroom to accommodate everyone present and for the live telecast of the proceedings.

The Court has listed out the main issues before it which include–Abrogation of article 370, Reorganization of J&K, and the President’s Rule. Senior Advocate Ramachandran, who is representing petitioners, including Former IAS officer Shah Faesal, Shehla Rashid and others, begin to make his submissions.

The key issue in the matter before the bench is whether the Centre has the authority to make such drastic changes to a state under the guise of temporary power when the state was under the President’s Rule.

Ramachandran argues that the proposal to alter the Constitution of Jammu and Kashmir must emanate from the people of the state through their elected Constituent Assembly. Article 370 having been enacted by the whole of India for the State of Jammu and Kashmir and the same had to be altered under the scheme of this article, the same could emanate only from the people of Jammu and Kashmir through their Constituent Assembly.

Reading Article 147 of Constitution of Jammu and Kashmir, Ramchandran says that no amendment seeking to change the provisions of the Constitution of India dealing with the relationship between the Centre and state of Jammu and Kashmir can be introduced in either House of the Legislature.

“The legislature of Jammu & Kashmir does not possess the constituent power to alter the relationship between Jammu and Kashmir and the Union, which vested only with the constituent assembly. The nature of the power of a body is changed from a constituent body to a legislative body. This legislative body did not possess the constituent power under the provisions of the Constitution”, said Ramachandran.

Ramachandran in his argument told the bench that Governor is the representative of the Union. A concurrence of this nature would not represent the will of the people, which can only be reflected through the elected government. He further highlights that the footnote to Article 356 makes a reference to the provisions of the Constitution of Jammu & Kashmir.

“The Governor giving concurrence (that is provided for under Article 370) is like the Union giving concurrence to itself. Once President’s Rule is lifted from the State and an elected state government comes to power, the decisions taken by Parliament on state subject matters can be repealed”, senior advocate replied when the bench sought clarification on the issue.

Justice Surya Kant asked Ramachandran when did the Constituent Assembly cease to exist. Ramachandran replied, “In 1956, the Constituent Assembly of Jammu and Kashmir approved and adopted the Constitution of Jammu and Kashmir. Simultaneously with the coming into force of the Constitution of Jammu and Kashmir”, it ceased to exist.

On August 28, the bench of former CJI Gogoi, Justices Bobde and Abdul Nazeer referred the matter to the constitution bench. Former IAS officer Shah Faesal, activist Shehla Rashid, Kashmiri lawyer Shakir Shabir, Advocate ML Sharma, National Conference leader Mohammad Akbar Lone and former Jammu and Kashmir High Court judge Hasnain Masoodi, are some of the petitioners.

The petitions challenge the constitutional validity of the Jammu and Kashmir Reorganization Act, 2019, which bifurcated the state into Union Territories of Jammu Kashmir and Ladakh.

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