Altering Article 370 by purporting to apply Article 367 fraud on Constitution; Retired Military Officers, Bureaucrats move SC

Altering Article 370 by purporting to apply Article 367 fraud on Constitution; Retired Military Officers, Bureaucrats move SC

Murali Krishnan

Retired Military Officers and bureaucrats have filed a petition in the Supreme Court of India challenging the Presidential Orders by which Article 370 of the Constitution of India was abrogated.

The petitioners are:

  1. Radha Kumar, a former member of the Home Ministry’s Group of Interlocutors for Jammu and Kashmir (2010- 11)
  2. Hindal Haidar Tyabji, a former IAS Officer belonging Jammu & Kashmir Cadre
  3. Air Vice Marshal (Retd) Kapil Kak, who was also Deputy Director of Institute for Defence Studies and Analyses
  4. Major General (Retd) Ashok Kumar Mehta
  5. Amitabha Pande, former member of Punjab Cadre of IAS
  6. Gopal Pillai – former IAS officer of Kerala cadre who retired as Union Home Secretary in 2011

The petition has been 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.

Article 370, the petition states, shall cease to operate only from such date as the President may by public notification declare. Further, 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.

The Constituent Assembly is completely different from a Legislative Assembly. 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.

Moreover, in case of the erstwhile State of Jammu & Kashmir, both Lok Sabha and Panchayat elections had been held recently, so there was no reason why Legislative Assembly elections could not have been held and these constitutional changes proposed and debated in the Assembly.

Due to above reasons, the action of the Union of India, without ascertaining the will of the people either through its elected government or legislature or through public means such as referenda, has undermined the basic principle of democracy.

Further, the petition alleges violation of principles of Federalism.

Regarding the Presidential Order, the petitioners have submitted that it has incorrectly invoked Article 370(1)(d) to effectively amend the proviso to Article 370(3).

The power under Article 370(1)(d) does not contemplate the wholesale application of “all provisions of the Indian Constitution” – at present and in perpetuity – to “apply in relation to the state of Jammu and Kashmir”.

Even if the Presidential order was otherwise valid, insofar as it seeks to amend Article 370(3), it is legally invalid as the Legislative Assembly of the (erstwhile) State of Jammu & Kashmir has no power under the Constitution of Jammu & Kashmir to bring about an amendment to any provision under the Constitution of India. The Presidential Order purports to do indirectly what cannot be done directly.

Further, Article 367 is a provision dealing with the interpretation of terms. Amendment to the same through which Article 370 was made redundant is not really “interpretational”. It is substantive as it deletes the expression “constituent assembly” and replaces it with the expression “legislative assembly” which are two wholly different concepts, the petition contends.

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.

Thus, the petitioners have sought quashing of Presidential Order as well as Jammu & Kashmir (Reorganisation) Act, 2019.

This is the seventh petition filed in Supreme Court challenging abrogation of Article 370. Six other petitions have already been filed and are pending before the Court.

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