Governor of Jammu & Kashmir kept the nation in dark; Presidential Rule in Kashmir, abrogation of Article 370 challenged in SC

A petition has been filed in Supreme Court challenging the 2018 proclamation of Presidential rule in Jammu & Kashmir. The petitioners, Jammu & Kashmir People’s Conference and its Spokesperson Adnan Ashraf have also assailed the Presidential Orders of August 5 and August 6 on Article 370 and the Jammu & Kashmir Reorganisation Act, 2019..In the petition settled by Senior Advocate Rajeev Dhavan and filed through advocate Ejaz Maqbool, the petitioners have contended that the President’s Proclamation under Article 356 of the Constitution dated December 19, 2018 which was further extended with effect from July 3, 2019 is unconstitutional. It is the contention of the petitioners that the Presidential proclamation violates Article 14 for having no rational nexus with the objects of the proclamation, for being manifestly arbitrary and for being in violation of the basic feature of federalism..Consequently, the Presidential orders of August 5 and August 6 on Article 370 are unconstitutional as the “concurrence” of the State government has been taken despite there being no popularly elected Government in the State of Jammu and Kashmir, under the provisions of the Constitution. It is, therefore, an affront on the Constitution of India and a blatant attack on the federal nature of the Indian Constitution, the petitioners have contended..The State of Jammu and Kashmir has been under the President’s rule under Article 356 of the Constitution of India (applied under the 1954 order) since June 2018, and all routine decisions of the Government of the State are taken by the Governor, who himself is a delegate of the President under the Presidential Proclamation issued under Article 356 (1) (a)..Therefore, the concurrence of the Government of the State provided by the Governor does not express the will of the people, as the Governor is merely substituting for a popularly elected Government, as an emergency measure under Article 356 of the Constitution. The imposition of the President’s Rule for the abrogation of Article 370 of the Constitution of India was an illegal and unconstitutional exercise of Article 356 of the Constitution of India..The petitioners have also alleged that the Governor of State of Jammu and Kashmir kept the entire nation in the dark and the country was not informed that such a drastic action against the interest of the State was being taken..Amaranth pilgrims were asked to interrupt their religious pilgrimage and were asked to return to their home towns on the false pretext of the security threat to the country. All the outstation students from all communities were asked to vacate, again on the false pretext of a security threat. The entire State particularly the valley was put under curfew. Never ever in the history of the nation reorganization under Article 3 has taken place which shows a blatant attack on the Constitution and the freedom of people of a State, the petition submits..The petitioners contend that Jammu and Kashmir had a separate Constitution and the Parliament had a limited scope to enact legislation for the State of Jammu and Kashmir. The State of Jammu and Kashmir had a historical background for becoming a State of Union of India and it was governed by its own Constitution and the parliament could not have taken a short cut route to abrogate Article 370 of the Constitution of India without the popularly elected State government being in place..The petitioners have also adverted to Article 3 of the Constitution of India which deals with the formation of new States and alteration of areas, boundaries or names of existing States..It is the petitioners’ case that since the coming into force of the Constitution of India several reorganization of States have taken place. But none of the Reorganization Acts have been enacted by the parliament without seeking the approval of the concerned State legislature. However, in the present case, two Union territories have been created out of the State of Jammu and Kashmir during the Governor’s rule which is an affront on the Constitution..The petitioners have, therefore, prayed that the imposition of Presidential Rule in the State in December 2018 be declared void ab-initio. The petitioners have also prayed for quashing of Presidential Orders of August 5 and August 6 and the Jammu & Kashmir Reorganisation Act, 2019..The first step to the removal of Article 370 came on August 5, when the Constitution (Application to Jammu & Kashmir) Order, 2019, was introduced to supersede the Constitution (Application to Jammu & Kashmir) Order, 1954. The 1954 Order had listed out provisions of the Constitution of India that would not apply to Jammu and Kashmir..In its place, the 2019 Order introduced on Monday provided that all provisions of the Constitution of India will apply to the state of Jammu and Kashmir, with a few exceptions and modifications..Though the power to abrogate or modify Article 370 was conferred with the President under clause (3) of the Article, there was a pre-condition to the same – concurrence by the Constituent Assembly of the State of Jammu & Kashmir. The Constituent Assembly had, however, ceased to exist as far back as in the 1950s..In order to get over this hurdle, the Presidential Order under challenge here, had amended Article 367 to replace the reference to Constituent Assembly under Article 370(3) to mean Legislative Assembly..Subsequently, the President had issued another order on August 6 making Article 370 redundant..The Presidential Order of August 5 also paved the way for the introduction of the Jammu & Kashmir Reorganisation Act, 2019 which bifurcated the State of Jammu and Kashmir into two Union Territories – Union Territory of Jammu & Kashmir, and Union Territory of Ladakh..[Read Petition]