Arguments NC is Making in SC to Term Centre’s Art 370 Move Illegal

The first major challenge against Modi and Shah’s Kashmir reorganisation has been filed in the Supreme Court.

MPs from Omar Abdullah’s National Conference have moved the Supreme Court asking it to declare the moves by the central government – to end the special status of Jammu & Kashmir under Article 370, and to reorganise it into two Union Territories – as “unconstitutional, void and inoperative.”

Mohd Akbar Lone and Hasnain Masoodi filed their petition in the apex court on Saturday, 10 August. They have challenged the two Presidential Orders (CO 272 and CO 273) as well as the Jammu and Kashmir Reorganisation Act 2019, the combination of which has been used by the Modi government to achieve its landmark changes in J&K.

Omar Abdullah continues to be detained in J&K under the J&K Public Safety Act 1978. MPs from other political parties in the region are also expected to file petitions shortly. PILs have already been filed in the Supreme Court against the effective revocation of Article 370 by advocate ML Sharma and Kashmiri advocate Shakir Shabir.

What are the Arguments Against Constitutionality of the Govt’s Moves?

THE FIRST PRESIDENTIAL ORDER (CONSTITUTION ORDER 272)

Home Minister Amit Shah’s series of chess moves began with a Presidential Order on the morning of 5 August. This order – CO 272 – applied the whole of the Constitution to J&K, superseded the old Constitution Order from 1954 (which brought in Article 35A) and added a new set of J&K-specific interpretation clauses to the Constitution.

The petition makes four broad arguments to say that CO 272 was unconstitutional:

• First, CO 272 uses Article 370(1)(d) to make changes to scheme, but Article 370(1) was only meant for application of other provisions of the Constitution to J&K. It was never meant to alter Article 370 itself. This argument has been justified using well-established rules of statutory interpretation, as well as the history of Article 370 in the Constituent Assembly Debates.

“During the debates around Draft Article 306A (and later Article 370) on 17th October 1949, Shri Gopalawami Ayyangar – the mover of the Article – made it clear that the terms of the relationship between the State of Kashmir and the Indian Union could only be altered following the method set down in clause (3) of the Article.”

• Second, to satisfy the procedural requirements under Article 370, CO 272 has relied on concurrence of the Governor to mean concurrence the “Government of the State of J&K” (which is supposed to be representative of the will of the people). What this actually means is that the central government (through the President) is taking its own consent (because J&K is under President's Rule) to change the character of a federal unit. This is basically the use of a temporary situation (President's Rule) to achieve a permanent alteration of status. This amounts to

“an overnight abrogation of the democratic rights and freedoms guaranteed to the people of the State of Jammu and Kashmir upon its accession.”

• Third, making all provisions of the Constitution applicable in perpetuity to J&K undermines the basic purpose of Article 370, which was supposed to allow extension of provisions to the state at particular times as and when they were considered relevant or needed. This was also supposed to be done without getting rid of the J&K Constitution.
• Fourth, the new interpretation clause brought in by CO 272, which helped justify what it had done, and laid the groundwork for the subsequent Presidential Order and Reorganisation Act, is legally invalid. The key change – substituting the requirement of a recommendation of the J&K Constituent Assembly for any revocation of Article 370, with that of the legislative assembly – was not possible since Article 147 of J&K Constitution expressly forbids this from happening.

THE SECOND PRESIDENTIAL ORDER (CONSTITUTION ORDER 273)

Relying on the new interpretation clause added in the first Presidential Order, a second was issued by the Centre under Article 370(3) on 6 August – CO 273. This order which removed all the sub-clauses of Article 370 except the first. The remaining sub-clause was also modified to state that all provisions of the Constitution would apply to J&K in perpetuity without any modification.

• The petition argues that CO 273 is “constitutionally invalid” because it relies on the modifications brought in by CO 272. As these were themselves invalid, the precondition to get a recommendation from the J&K Constituent Assembly still stood, which of course was not fulfilled in this case.
• The petition also makes an interesting argument to say that even if CO 272 were accepted as valid, this only allowed modifications to Article 370 as applicable in J&K. It did not, however, allow a modification of Article 370(3) for the Union of India. For Article 370 to be amended as it has been for India as a whole, the regular procedure for a constitutional amendment needs to be followed – which again hasn’t happened here.
• Both CO 272 and CO 273 are also argued to be “arbitrary exercises of government power in violation of fundamental rights and further, are in violation of Constitutional morality.”

JAMMU AND KASHMIR REORGANISATION ACT 2019

The third part of the government scheme in J&K was the bifurcation of the erstwhile state into Union Territories of J&K and Ladakh. This was done through an Act of Parliament, rushed through both the Lok Sabha and Rajya Sabha in two days. It will come into force on 31 October.

The petition argues that this Act is also “constitutionally invalid” for the following reasons:

• The Indian federal scheme under Constitution "does not permit Parliament to retrogressively downgrade statehood into a less representative form such as a Union Territory." This argument primarily relies on the wording of Article 3 of the Constitution, which sets out the Parliament’s power to make new States and UTs. You can read more about this here.
• The Supreme Court has repeatedly held that federalism is part of the basic structure of the Indian Constitution. This federalism is meant to allow for different relationships between States and the Union “based upon their terms of accession, historical, social, political and cultural circumstances”, as the court held in RC Poudyal vs Union of India (1994, SC). Other states also have special status under Articles 371A to 371J. The Union government cannot unilaterally amend this federal relationship without following the procedures for a constitutional amendment.
• The right to autonomous self government and the right to an identity within the federal framework are fundamental rights under the Constitution, flowing from the right to life and personal liberty in Article 21, the right to equality in Article 14 and the right to freedom of expression in Article 19. The petition argues that

“Their removal in a manner that has made a mockery of the “procedure established by law” is clearly in violation of fundamental rights and ought to be struck down forthwith.”

Read the full petition here:

Draft Writ - Mohd Akbar (9.8.19) by Aliza Noor on Scribd