29 Oct 2019 12:55 PM GMT
Showing their support to the abrogation of Article 370 of the Constitution, two Kashmiri Pandits namely, Tej Kumar Moza and Karishma Tej Kumar Moza, and the apex body of Indian and overseas Kashmiri Pandit Organisations, All India Kashmiri Samaj, have moved the Supreme Court seeking intervention as Respondents in the plea filed by Advocate M. L. Sharma, against such...
Showing their support to the abrogation of Article 370 of the Constitution, two Kashmiri Pandits namely, Tej Kumar Moza and Karishma Tej Kumar Moza, and the apex body of Indian and overseas Kashmiri Pandit Organisations, All India Kashmiri Samaj, have moved the Supreme Court seeking intervention as Respondents in the plea filed by Advocate M. L. Sharma, against such abrogation.
The Applicants have pleaded that Article 370 was not a basic part of Constitution of India as it was a temporary provision and that it was always the intention of Constituent Assembly of J&K for complete integration of the state with India. It submitted,
"Article 370 begins with "Temporary provisions with respect to the state of Jammu and Kashmir". It is essentially a transitory provisions which was enacted/ formulated keeping in mind the situation peculiar to Jammu & Kashmir to aid and enable in it being completely integrated with the Republic of India."
Stating that the 2019 Presidential Order, which kicked off the process of scrapping the special status of Kashmir, was constitutionally viable, the Applicants submitted,
"The Article  categorically provides a power to the President of India to cease the operation of this Article by way if a public notification. It is therefore submitted that the formulation and notification of the 2019 Order is in consonance with the provisions of Article 370 and the 2019 amendment act is a consequential legislative action that flows from it."
The argument has further been supported by citing Section 3 of the erstwhile Jammu & Kashmir Constitution, which recognized J&K as an integral part of India.
The aforementioned Presidential Order was promulgated on August 5, 2019, to supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 and abrogate the provisions of Article 370. Subsequently, the J&K Reorganisation Act, 2019 was passed by the Parliament to bifurcate the State into two separate Union Territories of J&K and Ladakh.
Stating that the aforementioned abrogation was crucial to combat the cross border terrorism prevalent in the State, the Applicants submitted,
"this reorganisation of the State of Jammu & Kashmir into two distinct Union Territories of Jammu & Kashmir and Ladakh is imperative and a critical move considering the ground realities of security, and actions being undertaken in the Pakistan-occupied-Kashmir (PoK) Territory of Jammu & Kashmir.
the State Government has been unable and unwilling to mitigate and commit itself to resolving the security issues prevalent in the State of Kashmir."
The Applicants have categorically submitted that the 2019 Order and Act is a step towards "restoring normalcy" to the "fragile" political and security conditions in Kashmir, which has long been plagued of incidents of violence and radical groups.
Stating that the Union of India was responsible for the defence of India, they said,
"this defence is not just limited to instances of external aggression but also internal security threats and conditions attributable to external aggression by way of effective control in hands of another State."
Arguing that conversion of the State into two separate UTs is also pertinent with regards the development and upliftment of the valley, the Applicants submitted,
"By coming directly under the purview of administration of the Union Territory by the President of India shall lead to a more effective and transparent channel for devolution of funds for infrastructure and development of the Union Territories of Jammu & Kashmir.
… two distinct union territories it shall lead to further effective management not just of law and order, security and defence situation but it provides effective devolution of power for the benefit of the citizens who have been marginalised and have been indoctrinated to be part of terrorist movements due to constant mal administration of successive state governments in the region."
The Applicants have argued that the State, being an integral part of India, had no self-determination rights. They said,
"the region of Jammu & Kashmir under no circumstances qualify for the self determination- upon passing of the Constitution of Jammu & Kashmir in 1956 it has been categorically held that Jammu & Kashmir is an integral part of India under Section 3.
…claim for self-determination is fundamentally flawed when tested on the principles of self-determination as envisaged in International Law."
Reiterating the Quai-Federal structure of Indian political system, the Applicants argued that the state of J&K had acceded to be controlled by the Centre. They submitted,
"Constitution of India is quasi Federal and Quasi Unitary in nature/ or quasi federal with a strong tilt to the centre (State of West Bengal v. Union of India (1964) 1 SCR 371). 40 By not being a pure federal state the overall control of the centre is generally accepted, as it is one of the foundations of the Indian Constitution. By ratifying and declaring itself to be an integral part of India the Constituent Assembly has accepted and acceded to this quasi- unitary and quasi-federal structure envisaged in the Indian Constitution."
Lastly commenting on the much controversial procedure adopted by the Centre to abrogate Article 370, the Applicants submitted,
"when a state is placed under the President's Rule by a proclamation under Article 356, the President takes over the administration of the State. By taking over such administration, the Parliament usually and generally performs the legislative functions of the State Assembly and any such legislative decision taken cannot be presumed unconstitutional as in times of President's rule, the Parliament is a repository of legislative power."
The Applicants have also expressed their belief that the 2019 Presidential Order and the subsequent the 2019 Reconstitution Act, will facilitate the return of the exiled Kashmiri Pandits to the valley, by reinstating a safe environment in the region.
Stating that while examining the 2019 Order and the Act, it was important to also take into consideration the oft-forgotten, oft-ignored and oft-overlooked Kashmiri Pandit perspective, they submitted,
"2019 Order and Act cannot be dealt with in isolation or sans any of the factors that have been mentioned above. The Kashmir Valley issue has to be examined from a Constituional lens, however this has to be reconcilled with the international law lens, the geo-political lens, the human rights lens and inherently with the view-point of the exiled and diplaced pandits who have not only been driven out of their rightful homes and lands but also been continously prevented to return back to their homeland and their temples and shrines inhrent to their faith, religion and practices."
Earlier, the Supreme Court had set up a Constitution Bench comprising Justices N V Ramana, Sanjay Kishen Kaul, R Subhash Reddy, B R Gavai and Surya Kant to hear all the petitions challenging the Presidential Orders under Article 370. The matter is scheduled to come up for hearing on November 14 and the present intervention application will also be placed before the bench, for admission.
The application has been drawn by Advocates Rahul G. Tanwani, Manan Sanghai, VC Shukla and Prashant Singh, and filed by AOR Anantha Narayana MG.