Former IAS officer Shah Faesal and activist Shehla Rashid on Monday told the Supreme Court that the “people of Jammu and Kashmir either through their legislature or through their voices in public were not heard” before the Centre abrogated Article 370 of the Constitution, granting special status to the state, The Indian Express reported.
Senior advocate Raju Ramachandran, representing the petitioners, told a five-judge Constitution Bench headed by Justice N V Ramana that the language of Article 370 was clear — that any alteration could only have been at the instance of the people of the state. He took the Bench, also comprising Justices S K Kaul, R Subhash Reddy, B R Gavai and Surya Kant, through the Instrument of Accession signed by Maharaja Hari Singh, by which J&K ceded to the Indian Union on October 26, 1947, it said.
For matters outside the Instrument, concurrence given by government has to be placed before the constituent Assembly of J&K, which means people of the state will have to approve of the arrangement, the counsel said. There is no arrangement for the Parliament to alter the arrangement, he pointed out.
The question, the counsel said, was whether the temporary cover of President’s Rule, which is restorative and ameliorative in character, can be used to bring about irreversible change in a federal relationship between a state of the Union and the Union government, which includes altering the identity of a state altogether and splitting it into a Union Territory.
The move by the Centre was “unconstitutional and involved impermissible use of constitutional powers” and it was “exercised by disregarding the wishes of people of J&K”, Ramachandran claimed.
The counsel said the preamble of the J&K Constitution says that the state is an integral part of the Indian Union.
“Legislature of J&K does not possess the constituent power to alter the relationship between state and Union, which is vested only in the constituent Assembly,” he said. “The sequitur of that is if the state legislature did not possess constituent power, then Parliament exercising the powers of the state legislature during the currency of Presidential Rule cannot have more powers than what the state legislature had.”
The counsel said that members of the Parliament “did not have time to see Bill” for amending Article 370. Though it may not be something which court can go into, it is “a bearing on the nature and haste of legislative process, whether a presumption of constitutionality can lie in such a situation”, he said.
Attorney General K K Venugopal, appearing for the Centre, opposed the contention in the written submission submitted by the petitioners — that MPs were “not shown” the Bill was “incorrect” as they had stated to the contrary in their own petition, The Indian Express reported.