Article 370: Can the Centre unravel Federal Structure under the cover of Presidents’ rule? National Conference MPs move SC

Two Lok Sabha MPs belonging to the Jammu & Kashmir National Conference Party have approached the Supreme Court challenging the Presidential Order of August 5 which paved the way for the abrogation of Article 370 of the Constitution..The petitioners, Mohammad Akbar Lone and Hasnain Masoodi, represent the Baramulla and Anantnag constituencies respectively. They have sought quashing of the Presidential Order by which Article 367 was amended to modify Article 370..They have also assailed the Jammu and Kashmir (Reorganisation) Act, 2019 by which the State of Jammu & Kashmir was bifurcated into two Union Territories..Article 370, the petition states, was extensively considered and carefully drafted, in order to ensure the peaceful and democratic accession of the former princely State of Jammu & Kashmir to the Indian Union..The provision was a self-contained Code that defined and regulated the relationship between the State of Jammu & Kashmir and the Union of India. Apart from Article 370, Article 1 of the Indian Constitution would apply – unchanged – to the state of Jammu & Kashmir..From time to time, the President of India could, with the concurrence of the government of the state, pass orders applying – with exceptions and modifications – specific provisions of the Indian Constitution to the state, based upon the exigencies of the situation..To this end, through numerous Presidential Orders, provisions of the Indian Constitution were applied to the state in a modified form..Meanwhile, the Constituent Assembly of Jammu & Kashmir drafted a Constitution for the state, specifically recognising that it was an integral part of the Union. Crucially, the existence of the Constituent Assembly of Jammu & Kashmir is recognised in the scheme of Article 370. Clause (3) of Article 370 provided that any change to the relationship between the State of Jammu & Kashmir and the Indian Union could only be brought about on the recommendation the Constituent Assembly..Despite all these, two Presidential Orders and the Jammu and Kashmir Reorganisation Act were unconstitutionally used to undermine the scheme of Article 370, the petition states. The Presidential Order CO 272 was used to supersede the Constitution (Application to Jammu and Kashmir) Order, 1954. It also added Clause (4) to Article 367, making the Constitution of India applicable to the State of Jammu & Kashmir by modifying Article 370..Presidential Order CO 273 was then issued to completely remove the special status of Jammu & Kashmir..The Jammu and Kashmir Reorganisation Act, 2019 was then passed to bifurcate the State of Jammu & Kashmir into two Union Territories..The challenge to the Presidential Orders has been raised on the following grounds:.Firstly, the Presidential Order uses Article 370(1)(d) – which was meant to apply other provisions of the Constitution to the State of Jammu & Kashmir – to alter Article 370 itself, and thereby the terms of the federal relationship between the state and the the Union of India..It is the petitioner’s case that Article 370(1)(d) cannot be invoked to (indirectly) amend Article 370(3) of the Constitution of India. Though Clause (2) of the Presidential Order purports to amend Article 367 of the Constitution, the effect of these amendments is to bring about changes in the text of Article 370 of the Constitution..It is a well-established principle that “what cannot be done directly cannot be done indirectly.” If, therefore, Article 370 cannot be directly amended through a Presidential Order. Neither can it be amended through the device of inserting a new provision into Article 367, the petition states..Secondly, it is contended that having been passed during an extended period of President’s Rule, the Presidential Order substitutes the concurrence of the Governor for that of the government (and effectively, therefore, amounts to the Centre taking its own consent to change the very character of a federal unit)..In other words, the Presidential Order takes cover of a temporary situation, meant to hold the field until the return of the elected government, to accomplish a fundamentally, permanently, and irreversibly alteration of the status of the State of Jammu & Kashmir without the concurrence, consultation or recommendation of the people of that state, through their elected representatives..The petitioner has submitted that “government” cannot be equated with “Governor” in matters involving the fundamental and permanent restructuring of the state itself. This is because, as is well-established, President’s Rule is a temporary and exceptional phenomenon, designed to address an emergent situation until such time an elected government is restored to power. An interpretation of Article 370(1)(d) that would include “Governor” within the meaning of “government” during the imposition of President’s Rule would destroy the principle of representative government, the petitioners contend..Doing so, the petition states, amounts to an overnight abrogation of the democratic rights and freedoms guaranteed to the people of the State of Jammu & Kashmir upon its accession..Thirdly, by making all the provisions of the Indian Constitution applicable per se – and in perpetuity – to the State of Jammu & Kashmir, the Presidential Order undermines one of the basic purposes of Article 370, which was to facilitate the extension of constitutional provisions to the state in an incremental and orderly manner, based upon the needs and requirements at a particular time, without dismantling the State Constitution..Fourthly, the Presidential Order – by replacing the recommendation of the Constituent Assembly with that of the legislative assembly in order to alter the terms of Article 370 – assumes that the legislative assembly of the State of Jammu and Kashmir has a power that its own Constitution, under Article 147, denies to it. Thus, at the very least, the impugned Presidential Order is ineffective insofar as it seeks to alter the scheme of Article 370..Jammu and Kashmir (Reorganisation) Act.The petitioners have assailed Jammu and Kashmir (Reorganisation) Act, 2019 on the basis of Article 3 and Article 1..They submit that Article 3 authorises the formation of new States, and the alteration of areas, boundaries or names of existing states, but it does not authorise the degradation of the status of an existing state into a Union Territory. T.his is made even clearer by Explanations I and II to Article 3, where the word “State” is to be read to include a “Union Territory”. Article 3 provides a range of powers involving the inter-se alteration of States, the inter-se alteration of Union Territories, but conspicuously does not authorise the degradation of the status of a State into a Union Territory..Further, Article 1 states that “India, that is Bharat, shall be a Union of States.” Article 1(3) of the Constitution further stipulates that “the territory of India shall comprise – (a) the territories of the States”; (b) the Union territories specified in … the First Schedule…” .For the purposes of Article 1, “States” and “Union Territories” are treated differently, and “States” remain the constituent units of the Indian Union. Consequently, it is the submission of the petitioners that Article 3 of the Constitution cannot be read to grant the power to the Union to convert the status of States into Union Territories, as this power carries with it the necessary implication that the Union could – if it chose – convert India into a “Union of Union Territories” instead of a “Union of States.”.The petitioner cites SR Bommai v Union of India, wherein it was held,.“the Courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the states…let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle – the outcome of our own historical process and a recognition of the ground realities.”.The above interpretation is supported by the consistent history of the nation, where the movement has always been from the status of Union Territory to Statehood, and never the other way round, the petitioners contend..Earlier, advocate ML Sharma and Kashmiri lawyer Shakir Shabir had also approached the Supreme Court seeking quashing of the Presidential Order..[Read Petition]