Article 370: Former Bureaucrats, Defence Personnel Move SC Against Taking Away Of J&K's Special Status

The petition has been filed by Radha Kumar, a former member of the Home Ministry's Group of Interlocutors for Jammu and Kashmir (2010-11); Hindal Haidar Tyabji, a former Chief Secretary of the State of Jammu and Kashmir, Air Vice Marshal (Retired) Kapil Kak and Major General (Retd.) Ashok Kumar Mehta, who held postings in Uri Sector, south of the Pir Panjal in Rajouri and fought in the 1965 as well as 1971 Indo-Pak war.

The petitioners also include Amitabha Pande, a former member of the Punjab Cadre of the Indian Administrative Service who retired as Secretary of the Inter State Council of the Government of India and also Gopal Pillai, a former IAS Kerala Cadre officer, who retired as Union Home Secretary in June 2011.

The petition has been drafted by advocates Arjun Krishnan, Kaustubh Singh and Rajlakhsmi Singh, Advocates and settled by senior advocate Prashanto Chandra Sen.

The petitioners submit that the amendments taking away the special status of the State is "striking at the heart of the principles on which the State of J&K had integrated into India. It has also been described as having no affirmation/sanction from the people of J&K which, according to the petition, is a constitutional imperative as far as the State of J&K is concerned".

Talking of the two Presidential orders and the Act, the petition says, "the impugned orders/acts are arbitrary and contrary to the basic structure principles of Rule of Law, Federalism, Democracy and the Separation of Powers, apart from violating fundamental rights of citizens of India".

The petition follows a series of petitions on the subject including the ones moved by Shakir Shabir, a lawyer from Kashmir and the one by the leaders of National Conference.

Art 370 could not have been done away with sans recommendation of the Constituent Assembly

The petition states that, "The (erstwhile) State of Jammu & Kashmir, though a State within the meaning of Article 1 of the Constitution of India, has been accorded a special status from the very beginning because of certain events that took place at the time that the erstwhile ruler of Jammu & Kashmir acceded to the Indian union. The (erstwhile) State of Jammu & Kashmir was therefore dealt with by a special provision namely Article 370 of the Constitution.

"The marginal note states that it is a temporary provision with respect to the (erstwhile) State of Jammu & Kashmir. However, unlike Article 369 which is also a temporary provision limited in point of time for five years from the commencement of Constitution, no such limit is to be found in Article 370. Despite the fact that it is, therefore, stated to be temporary in nature, clause (3) of Article 370 makes it clear that this Article shall cease to operate only from such date as the President may by public notification declare and 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 petition highlights that the Constituent Assembly is not the same as the Legislative Assembly.

Violation of Quasi Federal Balance

The petition further states that, "The principle of pluralistic federalism would be set at naught if one of the two parties to the federal relationship (i.e., the Union) can unilaterally amend the terms of their relationship, without even passing through the rigours of the amending process under Article 368".

"The distribution of power between the Union and the (erstwhile) State of Jammu & Kashmir reflected that matters of national importance in which a uniform policy is desirable is retained with the Union of India and matters of local concern remain with the State of Jammu & Kashmir. Thus, with the State of Jammu & Kashmir, the quasi federal structure of the Constitution of India continues, but with certain differences. These have been on account of historical developments already explained hereinabove and in fact many states enjoy a special relationship in view of the peculiar facts and circumstances relating to that State. This is reflected in Article 371-A to 371-J which provide a special status, in different respects, to the states of Nagaland, Mizoram, Manipur, Maharashtra, Karnataka, Sikkim, and others.

"By the impugned acts, the respondent has sought to completely destroy the very basis on which the (erstwhile) State of Jammu & Kashmir had been integrated into India and, in the process, has also jeopardized the quasi federal balance envisaged by the Indian Constitution," it says.

The petitioners argue that the principle of pluralistic federalism would be set at naught if one of the two parties to the federal relationship (i.e., the Union) can unilaterally amend the terms of their relationship, without even passing through the rigours of the amending process under Article 368 (Amendment to the Constitution),

President's order a colourable exercise of power

The petition further states that the President's Order passed under Article 370(1) taking away special status of the State is "ultra vires the authority conferred by that Article".

"this is because, first, the Presidential Order incorrectly invokes Article 370(1)(d) to effectively amend the proviso to Article 370(3); secondly, the concurrence in question is an insufficient constitutional foundation upon which to base a Presidential Order of this nature; thirdly, 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"; and fourthly, even if C.O. 272 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," says the petition.

The petitioners further submit that, "the President completely eliminated the Constitution of Jammu & Kashmir by altogether superseding the 1954 Order... In doing so, the President conflated powers under Article 370(1)(d) with the powers under Article 356 of the Constitution of India as applied to the (erstwhile) State of Jammu and Kashmir. The power of the President under Article 370(1)(d) is under the Constitution of India qua India, while the power of the President under Article 356 is under the Constitution of India as applied to Jammu and Kashmir, and that the merger of powers granted to the President in two separate capacities is unconstitutional".

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