National Conference Leaders Approach SC Against Presidential Order On Article 370, J&K Bifurcation [Read Petition]

National Conference leaders Mohammed Akbar Lone and Hasnain Masoodi have approached the Supreme Court challenging the Central Government measures which abrogated the special status of Jammu and Kashmir and also the Jammu and Kashmir Reorganization Act 2019 which bifurcated the state into Union Territories of J&K and Ladakh.

The petition challenges the constitutional validity of the Presidential Orders issued on August 5 and August 6 in relation to Article 370 of the Constitution of India.

The first order issued under Article 370(1) of the Constitution by President Ram Nath Kovind on August 5 - C.O 272 - paved way for the application of entire provisions of the Indian Constitution to Jammu and Kashmir, taking away its special status in effect.

The President's Order also had the effect of nullifying Article 35A of the Constitution, as it superseded the Presidential Order of 1954. Further, it made a change in the interpretation clauses in Article 367 to state that 'Constituent Assembly' will read as 'Legislative Assembly of the State' and 'Sadar-i-Riyazat' as 'Governor'.

Drawing power from these changes, the President later issued another order on August 6 (C.O 273), modifying Article 370 to completely abrogate the special status of J&K.

The petition drafted by Advocates Gautam Bhatia ,Rahul Narayan, and Malavika Prasad challenges the validity of these orders raising arguments such as : 

1. The Presidential Order C.O. 272 uses Article 370(1)(d) – which was meant to apply other provisions of the Constitution to the state of Jammu and Kashmir – to alter Article 370 itself, and thereby the terms of the federal relationship between the state of Jammu and Kashmir and the Union of India. 
2. Having been passed during an extended period of President's Rule, the Presidential Order substitutes the concurrence of the Governor for that of the Government (and effectively, therefore, amounts to the Central Government (acting through the President) taking its own consent (under President's Rule) to change the very character of a federal unit. In other words, the Presidential Order takes cover of a temporary situation, meant to hold the field until the return of the elected government, to accomplish a fundamentally, permanently, and irreversibly alteration of the status of the State of Jammu and Kashmir without the concurrence, consultation or recommendation of the people of that State, acting through their elected representatives.
3. By making all the provisions of the Indian Constitution applicable per se – and in perpetuity – to the State of Jammu and Kashmir, the impugned Order undermines one of the basic purposes of Article 370, which was to facilitate the extension of constitutional provisions to the State in an incremental an orderly manner, based upon the needs and requirements at a particular time, without dismantling the State Constitution.
4. The impugned Order – by replacing the recommendation of the Constituent Assembly with that of the legislative assembly in order to alter the terms of Article 370 – assumes that the legislative assembly of the State of Jammu and Kashmir has a power that its own Constitution, under Article 147, denies to it. Thus, at the very least, the impugned Presidential Order is ineffective insofar as it seeks to alter the scheme of Article 370. 
5. "Government" cannot be equated with "governor" in matters involving the fundamental and permanent restructuring of the state itself. This is because, as is well-established, President's Rule is a temporary and exceptional phenomenon, designed to address an emergent situation until such time that an elected government is restored to power. 
6. 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).

Challenge to state reorganization

The petition also challenges the Jammu and Kashmir Reorganization Act 2019 passed by the Parliament on August 6 to bifurcate the state into Union Territories of J&K and Ladakh.

 The petitioner argues that that the Indian federal scheme – as exemplified by Article 1 and Article 3 of the Indian Constitution – does not permit Parliament to retrogressively downgrade statehood into a less representative form such as a Union Territory. 

Article 3 provides a range of powers involving the inter-se alteration of states, the inter-se alteration of Union Territories, but conspicuously does not authorise the degradation of the status of a state into a Union Territory, the petition states.

"Union Territories (with legislatures) have always been the creations of Constitutional amendments, and not under the plenary power of Article 3. Examples include Pondicherry (Article 239A) and the National Capital Territory of Delhi (NCT) (Article 239AA). Indeed, at the time of the framing of the Constitution, the concept of a Union Territory with a legislature did not even exist. It is therefore submitted that Article 3 could not have been intended to authorise the degradation of a state into a Union Territory", says the petition.

The petition therefore seeks a declaration that C.O 272 and C.O 273 issued by the President on August 5 and 6 repsectively, and the J&K Reorganization Act are null, void, ultra vires and inoperative.

A Kashmiri lawyer, Shakir Shabir, filed a petition on Friday challenging C.O 272, raising the argument that President cannot invoke Article 370 to dilute the very same provision.

On the next day of issuance of the C.O 272, a petition in SC was filed by Advocate M L Sharma challenging it. Though he had made a mention for urgent listing of the petition on Thursday, the Court declined.

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