The Indian government’s decision to abrogate the special status of Jammu and Kashmir was unconstitutional, petitioners told the Supreme Court on Tuesday, PTI reported. A five-judge bench of Justices NV Ramana, SK Kaul, R Subhash Reddy, BR Gavai and Surya Kant began hearing a batch of petitions challenging the constitutional validity of the Centre’s decisions in the erstwhile status.
India had on August 5 rescinded the special status of Jammu and Kashmir under Article 370 of the Constitution, paving the way for the creation of the Union Territories of Jammu and Kashmir, and Ladakh. These came into existence on October 31.
The Centre also imposed curfew-like restrictions in August. The restrictions have gradually been eased in Kashmir, with mobile phone connectivity restored and schools and colleges reopened. However, an internet ban continues, and senior leaders of local political parties remain in detention. There have also been reports of clashes between security personnel and protestors. Several petitions in Supreme Court have challenged these restrictions and detentions.
Senior advocate Raju Ramachandran, who appeared for petitioners such as Shah Faesal and Shehla Rashid, said the “will of the people” was not there in the decision as Jammu and Kashmir was under President’s Rule between December 2018 and October 31. He said the Centre brought in the changes under the “temporary cover” of the President’s Rule, but that temporary cover cannot be used to bring in irreversible changes.
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“A presidential notification 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),” he told the court, according to The Times of India. “J&K 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 J&K that Article 370 shall cease to have effect.”
Records show that neither the president nor the governor held any consultations on the matter either with the people of the state or members of legislative council, Ramachandran said, according to PTI. “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,” he added.
“The strength of sovereignty lies with the people,” he said, adding that the recommendation “made by Parliament on behalf of the constituent Assembly of the state (and by implication, Legislative Assembly of the state) is undemocratic not only for want of will of the people of the state but also undemocratic for want of public reason”.
“The haste and the perfunctory nature of the proceedings in Parliament of a change of this nature clearly violate the principle of deliberative democracy,” he added. “If the impugned Constitution orders and impugned Act are upheld, India can be reduced to a ‘Union of Union Territories’ merely by parliamentary legislations, which is neither permitted by the text nor the spirit of the Constitution.”
Attorney General KK Venugopal appeared for the Centre. He said Ramachandran had made a wrong statement that the reorganisation bill was not shown to members of the Lok Sabha.
The arguments will continue on Wednesday.