A day after President Ram Nath Kovind signed the Jammu and Kashmir Reorganisation Bill, 2019, making it into law, the National Conference today (Saturday, Aug 10) went to the Supreme Court against the government’s move to scrap Jammu and Kashmir’s special status and divide the state into two union territories.
The Presidential Order on Article 370 had revoked Jammu and Kashmir’s special status earlier this week, on Aug 5.
The petition was filed by NC leaders Mohammad Akbar Lone and Hasnain Masoodi who sought a direction from the apex court to declare the Presidential Order relating to Article 370 as “unconstitutional, void and inoperative” in Jammu and Kashmir.
The NC also sought to declare the Jammu and Kashmir Reorganisation Act, 2019 as “unconstitutional”.The reorganisation law provides for the formation of the Union Territory of Ladakh without legislature and a separate one for Jammu and Kashmir with the legislature.Jammu and Kashmir, and Ladakh will come into existence as separate Union Territories on October 31, Sardar Patel’s birth anniversary.
Under Jammu and Kashmir Reorganisation Act, 2019,for both the Union Territories carved out of Jammu and Kashmir state, key subjects such as law and order will be with the Centre.
The UT of Jammu and Kashmir will have a Lieutenant Governor and the maximum strength of its assembly will be of 107 which will be enhanced to 114 after a delimitation exercise. Twenty-four seats of the Assembly will continue to remain vacant as they fall under Pakistan-occupied Kashmir (PoK).
The current effective strength of the Jammu and Kashmir Assembly is 87, including four seats falling in Ladakh region, which will now be a separate UT without a legislature. The UT of Ladakh will have Kargil and Leh districts. The Act said Jammu and Kashmir UT will have reservation in the assembly seats.
The Lieutenant Governor of the successor UT of J-K may nominate two members to the Legislative Assembly to give representation to women if in his opinion, women are “not adequately” represented in the Legislative Assembly.
The Lok Sabha will have five seats from the UT of J-K, while from Ladakh the Lower House of Parliament will have one seat.
The NC has contended that the special status has been given to Jammu and Kashmir under the Constitution and the Presidential order to scrap them is constitutionally invalid, since the consent of the assembly of Jammu and Kashmir has not been taken.
The rationale given by the government was that since the state was under President’s rule, the powers of the assembly of Jammu and Kashmir devolved upon Parliament, empowering it to speak for the state.
The government has used a provision under the Article 370 that empowers the President to declare the special status inoperative anytime. The Section 3 of the Article 370 states: “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify”.
The NC petition has challenged this arguing that since the President was acting on the advice of the Union Cabinet, this move amounted to the “same constitutional functionary taking its own consent, to effect a fundamental structural change without consultation or concurrence of the persons affected by that change, or their elected representatives”.
This, the petition said, was arbitrary and contrary to the rule of law.
The petition further said the Jammu and Kashmir (Reorganisation) Act, 2019 – under which the state was divided into two union territories, is “constitutionally invalid”.
The Constitution does not permit parliament to retrogressively downgrade statehood into a less representative form such as a union territory, the petition said.
Today’s petition said the government decision “amounts to an overnight abrogation of the democratic rights and freedoms guaranteed to the people of the State of Jammu and Kashmir upon its accession”.