Shah Faesal,Shehla Rashid Move SC Challenging Abrogation Of Art.370, Bifurcation Of State [Read Petition]

Detained J&K politician Shah Faesal, activist Shehla Rashid and Five others have moved the Supreme Court challenging the presidential orders on abrogation of Article 370 and bifurcation of Jammu and Kashmir in to two Union Territories.

A three Judge bench of the Supreme Court headed by Chief Justice Ranjan Gogoi will hear the petitions on Wednesday.

The Petitioners also challenge the validity of The Jammu and Kashmir Reorganisation Act 2019

The petitioners submit that the constitutional relationship between the State of Jammu and Kashmir and the Union of India was radically altered in a matter of two days, even as the people of Jammu and Kashmir were kept in the dark as a curfew was imposed in the State of Jammu and Kashmir and all communication was cut off on August 4, 2019 midnight, in total violation of their rights under Article 14, 19 and 21.

According to the petitioners both impugned constitution orders are unconstitutional for being passed in disregard of the consent of the people of Jammu and Kashmir, as expressed through their chosen form of government - a popularly elected, republican form of government.

Petitioners submit that the state of Jammu and Kashmir has been under the President's rule under Article 356 of the Constitution of India (as applied under the 1954 Order) since June 2018 and all routine decisions are taken by the Governor, who is a delegate of the President.

"Therefore, the will of the people finds no expression in the concurrence of the government of the State provided by the Governor, who is merely substituting for a popularly elected government as an emergency measure under Article 356 of the Constitution. Without an Article 356 proclamation under operation, such concurrence could have been provided only pursuant to such aid and advice of the council of ministers of a government that is popularly elected. Absent that, the concurrence is invalid and liable to be set aside, for want of due process".

It is further submitted that the President does not acquire the constituent powers of the Government of the State of Jammu and Kashmir under Article 370(1)(d), to give concurrence to a modification of the Constitution as applied to the State. Hence, such power to given concurrence cannot be exercised by the Governor either, as he is merely a delegate of the President in the State, under president's rule.

Secondly the Parliament under Article 356 does not acquire the constituent power of the legislative assembly of the State of Jammu and Kashmir under Article 370(3) to recommend a presidential notification, (assuming but not conceding the validity of Impugned Order C.O. 272 redefining constituent assembly to mean legislative assembly).

Consequently, the resolutions passed by both houses of the Parliament, recommending the issue of an Article 370(3) presidential notification, purportedly in exercise of powers that vest in the "legislative assembly" of the State of Jammu and Kashmir is invalid and non est in the eyes of law.

The impugned order issued under Article 370(1)(d) attempts to modify the text of Article 370(3) as applied to the State of Jammu and Kashmir (via Article 367(4)) by stipulating that "Constituent Assembly" shall mean "Legislative Assembly" in Article 370.This is unconstitutional

It is also submitted that a presidential notification such as C.O. 273 can be issued only if the proposal for the cessation of Article 370 emanates from the State's Constituent Assembly (or its successor in law, if any).

The Jammu and Kashmir Constituent Assembly does not exist at the current time and thus could not have made a recommendation to that effect. Furthermore, no recommendation was made by any legislative body in exercise of its constituent power in Jammu and Kashmir that Article 370 shall cease to have effect. The state of Jammu and Kashmir not having validly initiated the process of abrogation of Article 370 (which, absent a mechanism to do so under the Constitution of Jammu and Kashmir could have been provided in the future by a suitable amendment made to the Constitution of Jammu and Kashmir by the legislature of the State in the exercise of its amending powers), the Union of India could not have initiated any process of any substantive change under Article 370(3) either. 

The Petitioners also submit that the Jammu and Kashmir Reorganisation Act 2019: The Impugned Act is clearly in violation of Article 3 of the Constitution, as the character of a state cannot be extinguished in its entirety in to two union territories. There is no precedent in our constitutional history, after the concept of Union Territories was introduced in the Seventh Amendment to the Constitution of India, in which a State was completely extinguished, and reduced only to Union Territory/Territories.

As per the petitioners all the Impugned orders and acts vitiate the principle of federalism, which is part of the basic structure of the Indian Constitution. Impugned Orders affect a complete and a wholesale supersession of the Constitution of Jammu and Kashmir even to the extent of Jammu and Kashmir ceasing to be State, as demonstrated by the passage of the Jammu and Kashmir Reorganisation Act, 2019 in Parliament. They are therefore in clear violation of this right to autonomy of the State that inhere in its residents' part III rights and destructive of the basic structure of the Constitution of India as applied to the State of Jammu and Kashmir and are therefore liable to be held to be void and inoperative under Article 13.

The petition has been drawn by Advocates Prasanna S; Aakarsh Kamra, Malavika Prasad; Jayavardhan Singh; Gautam Bhatia;Rupali Samuel.

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