Retired military officers and bureaucrats on Saturday filed a petition in the Supreme Court, challenging the Presidential order by which Article 370 was abrogated, saying that the order was constitutionally invalid. The petitioners have also challenged the Jammu & Kashmir Reorganisation Bill.
The petitioners include former Air Vice Marshal Kapil Kak, Retired Major General Ashok Mehta, former IAS officers Hindal Haidar Tyabji, Amitabha Pande and Gopal Pillai, and former member of the Home Ministry’s Group of Interlocutors for J&K Radha Kumar. The petition has been drawn by advocates Arjun Krishnan, Kaustubh Singh and Rajalakshmi Singh and settled by Senior Advocate Prashanto Sen.
Terming the presidential order on abrogation of Article 370 as constitutionally invalid, the petition states that a presidential order under “Article 370(3) of the Constitution requires the Constituent Assembly of Jammu and Kashmir to recommend a presidential notification under Article 370(3) declaring that Article 370 shall cease to be operative”.
“The Jammu and Kashmir Constituent Assembly no longer exists and thus could not have made a recommendation to that effect,” the petition states.
The petition describes the amendments “as striking at the heart of the principles on which the State of J&K integrated into India, especially as they had 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.”
Speaking of the amendments, the petition states that the alteration which says that the “legislative assembly of J&K doesn’t have the power to alter state’s relationship with India on account of Article 147”, it said, “has the effect of undermining the very basis on which the state of J&K had integrated into India”.
PRESENT ACTION VIOLATES BASIC PRINCIPLES OF DEMOCRACY
The petitioners have said that the decision to abrogate the provisions under Article 370 which has been effectuated “without ascertaining the will of the people either through its elected government or legislature or public means such as referenda, violates the basic principles of democracy, federalism, and fundamental rights”.
“The unconstitutionality of the act is further exacerbated by the fact that this declaration had been made with the concurrence of the Governor [Satya Pal Malik] at a time when the state of Jammu and Kashmir was under the President’s rule,” the petition read.
The petitioners also said that the brazen unconstitutionality of the act is unprecedented. Challenging the division of the state into two union territories, the petition states that downgrading the status of J&K and creating two union territories could not have been exercised without the consent of the state of J&K.