New Delhi A five-judge Constitution bench started hearing on Tuesday, 23 petitions on the abrogation of Article 370 and the legislation bifurcating Jammu & Kashmir into two union territories.
While some of the petitions challenge the abrogation of Article 370 and the subsequent Jammu & Kashmir (Reorganisation) Act , at least six petitions support the move.
The matter was heard by a bench headed by justice NV Ramana, and comprising Justices Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai and Surya Kant.
Article 370 was a temporary article in the Constitution which conferred special status on the state of Jammu & Kashmir (J&K) and provided that articles in the Indian Constitution and laws made by Indian parliament can be applied to J&K only with the concurrence of the local government
Since the state was under President’s rule at the time, the President assumed the powers of the government of J&K and the Parliament assumed the powers of the legislative assembly of J&K to issue orders scrapping the article on August 5 and 6.
The Jammu & Kashmir Reorganisation Act, 2019 (Reorganisation Act) bifurcating the state into two Union Territories, Jammu & Kashmir and Ladakh was also introduced.
The Presidential orders and the Reorganisation Act were challenged in Supreme Court by various persons, some claiming a violation of fundamental rights while others moved public interest litigation petitions.
{{/usCountry}}The Presidential orders and the Reorganisation Act were challenged in Supreme Court by various persons, some claiming a violation of fundamental rights while others moved public interest litigation petitions.
{{/usCountry}}Senior counsel Raju Ramachandran argued on Tuesday for Shah Faesal, Shehla Rashid and five other petitioners that exercise of the powers by the President under Article 356 was impermissible. Article 356 enables the President to exercise powers of the government of a state, if a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.
Ramachandran contended that the power of the President and Parliament during the period when a proclamation under Article 356 is in force, is temporary in nature and cannot be used to exercise any constituent power (power to modify the Constitution).
He also submitted that the Presidential orders scrapping Article 370 are unconstitutional as they were passed disregarding the consent of the people of J&K, since no elected government was in place in the state. The state was under the President’s Rule during the relevant period when Article 370 was scrapped and all decisions were taken by the Governor, who is a delegate of the President.
“A temporary power cannot be used to bring about an irreversible change with respect to the federal relationship between the centre and the state without participation of elected representatives of the concerned State”, Ramachandran said.
Besides, he also submitted that the Presidential orders were passed in violation of Article 370. It was submitted that such orders can be issued only if the proposal for the cessation of Article 370 emanates from the Constituent Assembly of J&K. Since the J& K Constituent Assembly did not exist when the notification was issued, the President could not have made a recommendation to scrap Article 370, he argued.
Ramachandran will continue his arguments on Wednesday.
Besides the petitions challenging the scrapping of Article 370, petitions were also filed in Supreme court challenging the restrictions on media and telecommunication in Kashmir. Those petitions were heard by a three-judge bench which reserved its judgment on November 27.