Article 370 : CPI(M) Leader Tarigami Moves SC Challenging Abrogation Of J&K Special Status

Challenging the constitutionality of the abrogation of special status of Jammu and Kashmir,  former J&K legislator Mohammad Yousuf Tarigami has filed a writ petition in the Supreme Court.

Tarigami, a four time MLA from Kulgam constituency of the now dissolved J&K Assembly, has challenged the Presidential orders issued on August 5 and 6 under Article 370 of the Constitution and Jammu and Kashmir Reorganization Act 2019, which divided the state into union territories of Jammu and Kashmir and Ladakh.

The petition challenges the August 5 order of President Ram Nath Kovind, which amended Article 367 to change the meaning of 'Constituent Assembly of J&K' as 'Legislative Assembly of J&K' and to include within the term 'Government' the 'Governor', as a colourable exercise of power.

"it is submitted that neither can Article 370 be directly amended through a Presidential Order nor can it be amended by way of insering a new provision into Article 367, in relation to the State of Jammu and Kashmir", states the petition.

Following the August 5 order, the Parliament passed a statutory recommendation for repeal of J&K special status. Based on that the August 6 order was issued, which read down Article 370 to completely abrogate the special status of J&K.

This action is challenged contending that power under Article 370 cannot be used to destroy the very same provision. Also, these powers cannot be invoked when the state is under Presidential rule, the petition further contends.

"The President does not have the power to change the provisions of the Constitution of India, as applied to Jammu and Kashmir, during President's rule under Article 356(1). The President can issue a proclamation under Article 356(1), as applied to the State of Jammu and Kashmir by Constitution (Application to Jammu and Kashmir) Order 1954, if he is "satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution of the State of Jammu and Kashmir. Therefore, by necessary inference, President's intervention under Article 356 must be to ensure that Government in Jammu and Kashmir can be carried out in accordance with the provisions of the Constitution of Jammu and Kashmir, and towards restoring constitutional machinery in the state. As a corollary, the President ought not amend the provisions of the Constitution of Jammu and Kashmir through the powers under Article 356(1) as applied to Jammu and Kashmir." 

To downgrade the status of the State of Jammu and Kashmir into a Union Territory (with legislature), the J&K (Reorganization) Act is ultra vires of Article 3 of the Constitution of India, the petition further states.

The bifurcation of the state when it was under Presidential rule infringes the basic feature of federalism.

"the right to autonomous self government and the right to an identity within the federal framework are fundamental rights flowing from the right to life and other provisions contained in Part III of the Constitution. Their removal in a manner that has made a mockery of the "procedure established by law" is clearly in violation of fundamental rights and out to be struck down forthwith"

Tarigami is allegedly under illegal detention since August 5. A petition filed by CPI(M) general secretary Sitaram Yechury for his release from detention is pending in SC.

The Constitution Bench will commence hearing of the petitions concerning Central Government measures in J&K from tomorrow.

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