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Two Kashmiri Pandits, Tej Kumar Moza and Karishma Tej Kumar Moza and All India Kashmiri Samaj, an apex body of various associations formed by Kashmiri Pandits have approached the Supreme Court supporting the recent decision of the Central Government to abrogate Article 370 and divide the State of Jammu & Kashmir into two Union Territories.
By way of their applications, the applicants have supported the Presidential Order of August 5 abrogating Article 370 and the Jammu & Kashmir Reorganisation Act, 2019 which bifurcated the State of Jammu and Kashmir into two Union Territories – Union Territory of Jammu & Kashmir, and Union Territory of Ladakh.
The applications have been drawn by advocates Rahul G Tanwani, Manan Sanghai, VC Shukla and Prashant Singh.
Filed through advocate Anantha Narayana MG, the applications state that Article 370 was a transitory provision that was enacted keeping in mind the peculiar situation of Jammu & Kashmir and to enable the State to completely integrate into the Union of India. It categorically provides power to the President to cease the operation of the Article by way of public notification.
They have submitted that the 2019 notification is in consonance with the provisions of Article 370.
The Treaty of Accession of Jammu & Kashmir to the Republic of India was an unconditional one and it was always the intention of the State of Jammu & Kashmir to be completed integrated with the Republic of India. Article 370 was a temporary provision inserted with the object of peace, security, law and order in the State, the application filed by All India Kashmiri Samaj states.
Further, the provision for a separate Constitution was derived from the temporary Article and once that Article ceases to operate, Jammu & Kashmir would be subject to the Constitution of India.
The applicants have also pointed out that the region has been consistently threatened by infiltration from Pakistan and China with frequent incidents of cross-border radicalism and terrorism. It is their contention that the State government has been unable and unwilling to resolve security issues and governing the region as Union Territory would ensure better administration, security, defence and law and order.
The present 2019 Order and Act would enable in restoring normalcy to the fragile political and security conditions in Kashmir. Further, it will also help in creating a safe environment for the safe return of the exiled Kashmiri Pandits to the valley.
The applicants have stated that Article 370 does not form part of the Basic Structure of the Constitution. On the contentions regarding the right of Kashmiris to self-determination, it is the case of the Kashmiri Pandits that the region of Jammu & Kashmir under no circumstances qualifies for self-determination. Upon passing of the Constitution of Jammu & Kashmir in 1956 it has been categorically held that Jammu & Kashmir is an integral part of India under Section 3. Unlike in international law, subsequent State practice does not trump the written word in Municipal law. Once a constitutional declaration of such nature is made any contrary action claiming rights of self-determination do not stand, the applicants claim.
The contention of violation of federal principles have also been rebutted with the applicants claiming that the Constitution of India is quasi-federal with a strong tilt towards the Centre.
When a State is under President’s rule, the decisions taken by the President cannot be presumed unconstitutional since the President exercises legislative functions during such period. The same applies to Jammu & Kashmir, it is contended.
“It is submitted when a state is placed under the President’s Rule by a proclamation under Article 356, the President takes over the administration of the State. By taking over such administration, the Parliament usually and generally performs the legislative functions of the State Assembly and any such legislative decision taken cannot be presumed unconstitutional as in times of President’s rule, the Parliament is a repository of legislative power.
Now admittedly Jammu & Kashmir has been placed under the President’s Rule. Therefore, it is no longer the federal lens but the unitary lens that applies and the Parliament has to perform functions under List-I, List-II and List-III of the Seventh Schedule.”
The applicants have prayed for allowing them to intervene in the petition and have also prayed that the petition challenging Article 370 and Reorganisation Act be dismissed.
The first step to the removal of Article 370 came on August 5, when the Constitution (Application to Jammu & Kashmir) Order, 2019, was introduced to supersede the Constitution (Application to Jammu & Kashmir) Order, 1954. The 1954 Order had listed out provisions of the Constitution of India that would not apply to Jammu and Kashmir.
In its place, the 2019 Order introduced on Monday provided that all provisions of the Constitution of India will apply to the state of Jammu and Kashmir, with a few exceptions and modifications.
Though the power to abrogate or modify Article 370 was conferred with the President under clause (3) of the Article, there was a pre-condition to the same – concurrence by the Constituent Assembly of the State of Jammu & Kashmir. The Constituent Assembly had, however, ceased to exist as far back as in the 1950s.
In order to get over this hurdle, the Presidential Order had amended Article 367 to replace the reference to Constituent Assembly under Article 370(3) to mean Legislative Assembly.
Subsequently, the President had issued another order on August 6 making Article 370 redundant.
The Presidential Order of August 5 also paved the way for the introduction of the Jammu & Kashmir Reorganisation Act, 2019 which bifurcated the State of Jammu and Kashmir into two Union Territories – Union Territory of Jammu & Kashmir, and Union Territory of Ladakh.
These have been challenged in Supreme Court by various persons and will be heard by a Constitution Bench.
[Read Intervention Applications]