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Regular-article-logo Saturday, 20 April 2024

Omar’s party approaches top court

Petitions are likely to be heard this week along with two other public interest pleas already filed on the matter

Our Legal Correspondent New Delhi Published 10.08.19, 09:01 PM
A protest march in Srinagar after Friday prayers.

A protest march in Srinagar after Friday prayers. (AP)

Three fresh petitions have been moved in the Supreme Court assailing the amendment of Article 370 as unconstitutional and seeking immediate withdrawal of the unprecedented media curbs in Jammu and Kashmir.

The petitions are likely to be heard this week along with two other public interest pleas already filed on the matter.

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Two of the petitions — one from National Conference MPs Mohd Akbar Lone and Hasnain Masoodi and another from Kashmir Times executive editor Anuradha Bhasin — were moved on Saturday.

The MPs’ joint petition alleges that the presidential order removing Kashmir’s special status and the parliamentary enactment splitting the state into two Union Territories “unconstitutionally undermine” the scheme of Article 370.

Filed through advocate Mahesh Babu, the petition offers four arguments in favour of quashing the presidential order and the Jammu and Kashmir Reorganisation Act.

First, it says, the presidential order invokes Article 370(1)(d), which was meant to apply the other provisions of the Constitution to Jammu and Kashmir, to alter Article 370 itself.

Second, the Centre has fundamentally, permanently and irreversibly altered the status of Jammu and Kashmir without the concurrence of, or any consultation with, its people or their elected representatives.

This has been done during a spell of President’s rule, a temporary situation meant to hold the field until the return of an elected government. Ironically, the presidential order substitutes the concurrence of the governor for that of the government, which effectively means the Centre has, acting through the President, taken its own consent.

The decision amounts to an overnight abrogation of the democratic rights and freedoms guaranteed to the people of Jammu and Kashmir upon its accession.

Third, by making all the provisions of the Indian constitution applicable to Jammu and Kashmir, the presidential order undermines one of the basic purposes of Article 370.

This purpose, the plea says, was to facilitate the extension of the provisions of the Indian constitution to the state in an incremental and orderly manner, based on the requirements at a particular time and without dismantling the state constitution.

Fourth, the presidential order has, by replacing the Constituent Assembly’s recommendation with that of the legislative assembly to alter the terms of Article 370, assumed that the legislative assembly has a power that is wholly unconstitutional.

Further, Parliament has “attempted to degrade the status (of the state) into two Union Territories” although “the Indian federal scheme — as exemplified by Article 1 and Article 3 — does not permit Parliament to retrogressively downgrade statehood into a less representative form such as a Union Territory”.

Supreme Court advocate Shakir Shabir, advocate Manohar Lal Sharma and Congress politician Tehseen Poonawala have filed the three other petitions.

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