Madras HC reserves orders on maintainability of plea challenging Jammu and Kashmir Reorganization Act, 2019

Madras HC reserves orders on maintainability of plea challenging Jammu and Kashmir Reorganization Act, 2019

Meera Emmanuel

The Madras High Court on Tuesday reserved orders on the maintainability of a Public Interest Litigation (PIL) plea filed challenging the Jammu and Kashmir Reorganization Act, 2019.

The plea filed by political party Desiya Makkal Sakthi Katchi, through its President ML Ravi came up today before a Division Bench of Justices M Sathyanarayanan and N Seshasayee.

The petitioner has argued that the 2019 Jammu and Kashmir Reorganization Act is liable to be declared unconstitutional and void as the Parliament does not have the legislative competence to reorganise Jammu ad Kashmir without a Constitutional amendment and without the concurrence of the State legislature.

Recalling that at the time of its accession to the Dominion of India, the Indian Government was only given control of three subjects, i.e.. External affairs, Defense and Communications, the petition states,

The relationship between the State of J&K and the Union of India is exceptional. The State enjoys a greater measure of autonomy and the power of the Union of India is restricted, as regards other States. The Union of India is incompetent to declare financial emergency and emergency in case of  failing  of  constitutional machinery with respect to the State of J&K. Only emergency due to War or External Aggression can be declared as it is within the scope of Defense as surrendered to the Union of India.

The Union Legislature cannot legislate on the matters provided in the Union list and Concurrent list which are not in accordance with the subjects provided in the instrument of accession. The consultation of the State Government is required in any matter that affects the State. It can be said that the Union of India has the power to act on an issue independently only if it is somehow related to the three subjects surrendered or those expressly mentioned in the instrument of accession.

The petitioner has also argued that the Government’s move to reorganise Jammu and Kashmir by the 2019 Act is also violative of the principle of federalism, which is a basic feature of the Constitution. It adds,

The basic feature of the constitution is federalism and thus, sabotaging the basic feature of the constitution of India is everybody’s concern and also, upholding the constitution is being the utmost duty of every citizen of this country, all citizens living in the nook and corner of this country, are aggrieved of the above said action of the Union of India and it is pertinent that there are certain articles like Article 368 which requires ratification by half of the states in respect of few matters and removal of states shall make imbalance between states resulting in many things imposed on all states. Thus, the action of the central Government by bringing this impugned 1. legislation has created repercussions impliedly all over India and the petitioner’s party has preferred this writ petition.”

Articles 1-4 and Article 368 of the Constitution are also cited to argue that,

“… no state can be reduced as union territories and any such attempt to treat a state as a union territory or union territories, requires constitutional amendment with the concurrence of the concerned state.”

In view of these submissions, and asserting that the petitioner has no other effective, speedy and alternative remedy, the petitioner has invoked the High Court’s writ jurisdiction praying for the Court to issue Writ of Declaration declaring the Jammu And Kashmir Reorganization Act, 2019 as unconstitutional, null and void. 

The Jammu and Kashmir Reorganisation Act, 2019 bifurcates the State of Jammu and Kashmir into two Union Territories – Union Territory of Jammu & Kashmir, and Union Territory of Ladakh. The Presidential Order of August 5, which eventually led to the abrogation of Article 370 of the Constitution (which had until then granted special autonomy to J&K in certain respects), had also paved way for the introduction of the 2019 Reorganisation Act. A batch of petitions challenging the constitutionality of the August 5 Presidential Order as well as the 2019 Reorganisation Act is presently pending before the Supreme Court.

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