Is the Division of J&K Unconstitutional? Here's What a Petition in SC Says

The petition challenging the Centre's decisions was filed by retired bureaucrats and defence personnel.

New Delhi: The petition filed in the Supreme Court by six prominent citizens challenging the constitutional validity of the president’s amendments to Article 370 and the J&K Reorganisation Bill has claimed that these orders were “unconstitutional, violative of the basic structure of the Constitution and violative of fundamental rights”.

The petition has been filed by retired bureaucrats and defence personnel who have been associated with Jammu and Kashmir or served there. The first petitioner is academic and political analyst Radha Kumar, who was also a member of the home ministry’s group of interlocutors for Jammu and Kashmir in 2010-11.

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The other petitioners are former J&K chief secretary Hindal Haidar Tyabji; Air Vice Marshal (Retired) Kapil Kak, who is a permanent resident of J&K; Major General (Retired) Ashok Kumar Mehta, who served in the state for many years; IAS officer Amitabha Pande, who retired in 2008 as the secretary of the Inter State Council of the Government of India; and former Union home secretary Gopal Pillai, who dealt closely with issues relating to Jammu and Kashmir.

The petition has listed several reasons why the petitioners believe the reading down of Article 370 and the reorganisation of the state were bad in law.

Supreme Court. Photo: PTI

It states that Article 370(3) prescribes the conditions under which Article 370 would cease to operate. It says that Article 370 can cease to operate only on the recommendation of the Constituent Assembly of the state and thereafter a public declaration by the president.

However, the petition charged, “there has been no such recommendation by the Constituent Assembly before such a declaration was made by the President of India.”

‘A colourable exercise of power’

Referring to the Presidential Order G.S.R. 1223(E), through which an amendment has been made to Article 367 of the Constitution of India by which the reference to the expression “Constituent Assembly of the State” has been read as “Legislative Assembly of the State”, the petition stated that this “amendment is a colorable exercise of power.”

It has claimed that the amendment “seeks to achieve indirectly what cannot be achieved directly. It seeks to force an interpretation of Article 370(3) which would not be possible on a plain reading of the terms of the Article 370(3) of the Constitution of India. At present, there is no Constituent Assembly which is in existence and hence a fundamental condition for the effectuation/invocation of Article 370(3) is absent.”

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The petition also points out that “the Legislative Assembly of Jammu and Kashmir does not have the power to alter the State’s relationship with India on account of Article 147 of the Constitution of Jammu & Kashmir.”

It has also stated that this act would undermine the very basis on which the (erstwhile) state of Jammu & Kashmir was integrated into India. “Both the Instrument of Accession as also Article 370 envisage a special autonomous status of the State of Jammu & Kashmir which could only be changed upon a recommendation of the Constituent Assembly.”

‘Action violates principle of democracy, federalism’

“The present action,” the petition noted, “which has been effectuated without ascertaining the will of the people either through its elected Government or legislature or public means such as referenda, violates the basic principle of democracy, federalism, and fundamental rights.”

It adds that “the unconstitutionality of the said act is further exacerbated by the fact that this declaration had been made with the concurrence of the Governor at a time when the State of Jammu & Kashmir was under President’s rule.”

The petition notes that the object of transfer of power of the state legislature to the parliament under state of emergency under Article 356 was of a purely temporary nature has been “completely overlooked” and “such a power could not have been used to change the very nature of the state/federal unit and to denude the power of the State Legislature itself.”

On the reorganisation of the erstwhile state and downgrading its status to that of two Union Territories, the petition said, “even this power could not have been exercised without the consent of the erstwhile State of Jammu & Kashmir.”

Giving reasons for this, it states that “the erstwhile state of Jammu & Kashmir was markedly different from that of other States. In the case of other states, only the views of their legislatures are ascertained by the President before recommending the introduction of a Bill relating to reorganisation of the areas of the state.  But in the case of Jammu & Kashmir, no such Bill can be introduced in the Parliament unless the State Legislature consents to the same.”

A view of the Jammu and Kashmir Legislative Complex. Credit: PTI

A view of the Jammu and Kashmir Legislative Complex. Credit: PTI

‘Unprecedented unconstitutionality’

Stating that “the unconstitutionality of the act is unprecedented,” the petition charges that “by way of an amendment in Article 367, conditions have been sought to be read into Article 370(3) which has the effect of completely nullifying the effect of Article 370 and superseding the Constitution of Jammu & Kashmir.”

The petition also notes that the follow-up action of reorganising the state was accompanied by a complete lockdown. This, it said, gave “no scope to the people of Jammu & Kashmir to have any say in the entire exercise.”

Therefore, this action “jeopardises and strikes at the very root of the integration of the erstwhile State of Jammu & Kashmir into India.”

Petition traced history of Jammu and Kashmir

The petition also traced the important dates and events in the history of Jammu and Kashmir, from 1846 – when the Treaty of Amritsar was signed between the East India Company (British Government) and Dogra ruler Maharaja Gulab Singh, whereby the independent possession of the Jammu & Kashmir region was transferred to the Maharaja and the heirs male of his body – till early August 2019, when the declaration was issued by the president under Article 370(3) and he gave assent to the Jammu and Kashmir (Reorganisation) Act, 2019.

The main petition also recorded in detail the events leading to the signing of the Instrument of Accession of India by Raja Hari Singh of Jammu and Kashmir on October 26, 1947.

It noted that “with the lapse of British paramountcy, the princely State of Jammu & Kashmir, like the other Indian States, was theoretically free from the limitations imposed by the said paramountcy.”

While Maharaja Hari Singh was weighing his options, conflict broke out in the state as refugees streamed in from West Pakistan. Poonch region of Jammu was the site of most acute conflict and was virtually taken over by “guerrillas backed by Pakistan”.

Also Read: The Backstory of Article 370: A True Copy of J&K’s Instrument of Accession

On October 22, 1947, tribal raiders from Pakistan, with support from sections of the Pakistan government and led by officers of the Pakistan Army, invaded the territory of the state; and this invasion presented a problem of unprecedented gravity before the Maharaja.

With the progress of the invading raiders, the safety of the state was itself in “grave jeopardy and it appeared that, if the march of the invaders was not successfully resisted, they would soon knock at the doors of Srinagar itself”.

This act of aggression set in motion a chain of political events, and on October 26, 1947, the Maharaja signed an Instrument of Accession with India, the petition says.

Correspondence between Hari Singh and viceroy

The petition also recorded some important correspondence between the Maharaja Hari Singh and the Viceroy of India, Lord Mountbatten during that time.

It stated that on October 26, 1947, Hari Singh wrote to the viceroy:

 “Geographically my State is contiguous to both the dominions. It has vital economic and cultural links with both of them.  Besides my State has common boundary with the Soviet Republic and China.  In their external relations, the Dominions of India and Pakistan cannot ignore this fact…..  I want to take time to decide to which dominion I should accede, whether it is not in the best interest of both the dominions and my State to stand independent, of course, with friendly and cordial relations with both.”

The letter also refers to Pakistan pressuring Jammu and Kashmir to accede, culminating in the communal tribal raids:

“With the conditions obtaining at present in my state and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian dominion.  Naturally they cannot send the help asked for by me without my State acceding to the dominion of India.  I have, accordingly decided to do so and I attach the Instrument of Accession for acceptance by your government.  The other alternative is to leave my state and my people to free booters.”

In his reply, dated October 27, 1947, Lord Mountbatten wrote:

“In the special circumstances mentioned by Your Highness, my Government have decided to accept the accession of Kashmir State to (the) dominion of India.  Consistently with their policy that, in the case of any state where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my government’s wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the state’s accession should be settled by reference to the people.”

Maharaja Hari Singh of Kashmir, who signed the Instrument of Accession that made Kashmir a part of India. Kashmir has been under AFSPA for several years. Credit: Wikimedia Commons.

Nehru’s letter

The petition also referenced a letter sent by then Prime Minister Jawaharlal Nehru to Sheikh Abdullah on May 17, 1948 “with the concurrence of Vallabh Bhai Patel and N. Gopalaswamy Ayyangar”. It stated:

“It has been settled policy of Government of India, which on many occasions has been stated both by Sardar Patel and me, that the constitution of Jammu & Kashmir is a matter for determination by the people of the state represented in a constituent assembly convened for the purpose.”

The petition sought the apex court’s urgent intervention under Article 32 in the matter. It said the petitioners are “personally concerned as citizens of India about the sanctity of the federal, secular and plural nature of India’s Constitution which has been put at risk by the impugned orders/actions.”

The petition also claimed that “Article 370, that accords special status to the erstwhile State of Jammu & Kashmir, has been unilaterally and arbitrarily nullified without any consultation with the people/residents of the State or their elected representatives” and thus challenged the Presidential Orders issued on August 5 and 6 respectively and the J&K Reorganisation Act 2019 to be “illegal and unconstitutional”.