CPI(M) Leader's Fresh 370 Petition Shows BJP's Efforts to End J&K Deadlock Aren't Working

Tarigami's petition to the Supreme Court asks for the annulment of the Jammu and Kashmir Reorganisation Act as well as two related Presidential Orders.

Srinagar: The BJP’s efforts to end the political deadlock in J&K have begun to unravel with CPI (M) leader M.Y. Tarigami on Friday approaching the Supreme Court with a fresh petition challenging the “illegal” reading down of Article 370.

Citing Article 32 of the Constitution of India which deals with the violation of the citizens’ fundamental rights, Tarigami, who has been a vocal critic of the BJP’s Union government, has appealed the apex court to expedite the hearing of his previous petition seeking the restoration of Article 370.

The apex court has admitted around two dozen writ petitions from political parties, social activists and others who have challenged the legality of the Centre’s decision to read down Article 370.

In his latest petition, Tarigami, who is also the spokesperson of the Gupkar alliance, a conglomerate of regional parties backing the restoration of Article 370, has alluded that there was a threat to his life and that a delay in hearing the petition he had filed in 2019 may cause him “irreparable loss” or “injury”.

The petition asks the apex court to annul the J&K Reorganisation Act which bifurcated and downgraded the erstwhile state of Jammu and Kashmir into two union territories. It also urges the court to declare Presidential Orders GSR 551 (E) (CO 273) and GSR 562 (E) (CO 273) as “unconstitutional, void, and inoperative.”

Presidential orders and Article 35(A)  

CO 273 or Constitution (Application to Jammu and Kashmir) Order, 2019 GSR 551 (E) was issued by President Ram Nath Kovind on August 5, 2019, the day when the Centre scrapped J&K’s special status.

CO 273 states that all the provisions of the Constitution of India shall apply to Jammu and Kashmir, replacing the Constitution (Application to Jammu and Kashmir) Order, 1954, which also introduced Article 35-A into the Constitution of India.

Article 35-A empowered the J&K assembly to define the state subjects of Jammu and Kashmir while granting them exclusive rights over land, property and government jobs.

In his petition, Tarigami’s counsel argues that as per law, the recommendation of the J&K assembly is necessary to extend any provision of the Indian constitution to J&K or to make any other changes to Article 370.

As the J&K assembly was dissolved after the collapse of PDP-BJP coalition, the August 5 order introduced new clauses under Article 367 which allowed the Centre to make Article 370 inoperative merely by obtaining J&K governor’s – or in other words, its own – consent, the petition argues.

It states that since August 5, 2019, the central government has taken “irreversible actions” which have violated the “fundamental rights” of the people of Jammu and Kashmir under Articles 14 and 21 of the Constitution of India.

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Centre’s “illegal” moves

Tarigami’s petition cites the “illegal” constitution of the Delimitation Commission, which has been tasked by the central government to increase the number of assembly seats from the present 87 to 94 before assembly elections are held in J&K.

The commission has fuelled fears in Kashmir that the BJP was orchestrating changes in the unique demographic character of the country’s only Muslim majority state.

Moreover, under Section 96 of the Jammu and Kashmir Reorganisation Act, at least 37 central laws are now applicable to J&K while several laws, including J&K’s progressive legislations for farmers and land use, have been scrapped.

Tarigami’s counsel mentions the shuttering of several semi-constitutional bodies, such as J&K’s State Human Rights Commission, State Women’s Commission and State Accountability Commission for “expediting” the hearing in his petition.

These commissions, which were the last resort for the victims of excesses by state and non-state actors, have become redundant after central laws were extended to J&K.

“If the matters are not heard immediately, grave injustice will be caused to the Applicant … [who] will be put to irreparable loss, injury and hardships” the petition states.

Political logjam

Tarigami filed the petition on a day when the People Democratic Party (PDP) revealed that its chief, Mehbooba Mufti, had been put on notice by the J&K administration led by Lieutenant Governor Manoj Sinha.

Mufti had presided over a youth workers’ meeting in southern Kashmir’s Shopian on August 19 which had been attended by around 250 youth workers, according to PDP spokesman Suhail Bukhari.

The Shopian administration has accused Mufti of calling the convention in “violation of COVID-appropriate behaviour” since mass gatherings remain banned in J&K to prevent the spread of COVID-19.

“It is strange and baffling that on the very same day, Honourable LG presided over a function attended by hundreds of people and that too indoors. If Covid-19 is indeed why this workers’ meet was flagged in the first place, then why wasn’t the same yardstick applied to honourable LG’s programme,” Mufti asked in her response.

“Your actions reek of bias and political space for those who disagree with the ruling party is deliberately being choked,” the PDP chief asked the administration which has threatened to book her under Disaster Management Act and Indian Penal Code.

The Centre has failed to achieve a political breakthrough in J&K with the regional parties such as the National Conference and the PDP continuing to seek the restoration of J&K’s special status.

The National Conference (NC) also asked the Centre on Friday to reverse its “unilateral move” of reading down Article 370 to avoid a spillover of the Afghanistan crisis into Jammu and Kashmir.

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In a briefing by the Ministry of External Affairs on Afghanistan, NC Member of Parliament from Anantnag, Hasnain Masoodi, sought the restoration of Article 370.

“To ensure that the anticipated spillover doesn’t play out in a manner that affects peace and stability in the region, the government must restore its August 4, 2019 position to ease out the situation and generate goodwill among the populace of J&K,” he said.