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"People Of The Region Have Been Left At The Mercy Of Administration": Ladakh Residents Move Supreme Court Challenging Abrogation of Article 370

LIVELAW NEWS NETWORK
10 Aug 2021 12:40 PM GMT
People Of The Region Have Been Left At The Mercy Of Administration: Ladakh Residents Move Supreme Court Challenging Abrogation of Article 370
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The Reorganization Act along with the corresponding Presidential Orders is alleged to have a "chilling effect of extinguishing a 'State' by overriding the constitutional scheme to establish Union Territories, which do not conform to the democratic pattern envisaged by the Constitution of India".

Two politicians and a journalist from Ladakh have filed an impleadment application before the Supreme Court in the matter pertaining to the constitutional validity of Jammu and Kashmir (Reorganisation) Act of 2019.The applicants have sought an impleadment in the plea filed by Lok Sabha MP Mohammad Akbar Lone and Justice (retd) Hasnain Masoodi.The three applicants Qamar Ali Akhoon, Asgar...

Two politicians and a journalist from Ladakh have filed an impleadment application before the Supreme Court in the matter pertaining to the constitutional validity of Jammu and Kashmir (Reorganisation) Act of 2019.

The applicants have sought an impleadment in the plea filed by Lok Sabha MP Mohammad Akbar Lone and Justice (retd) Hasnain Masoodi.

The three applicants Qamar Ali Akhoon, Asgar Ali Karbalai and Sajjad Hussain who are also the Permanent Residents of the newly formed Union Territory of Ladakh are aggrieved by the chilling effect of the impugned Act which has extinguished a "State" which thus overrides the constitutional scheme.

"The Impugned Presidential Orders along with the Impugned Reorganization Act have eroded the legislative and executive organs and have denied the Constitutional rights of the inhabitants of the State of Jammu and Kashmir including the Inhabitants of the region which is now the Union Territory of Ladakh", the plea adds.

The applicants have alleged that the impugned Act has unconstitutionally undermined the scheme of Article 370 and usurped the power from the people to elect their own representatives and imposed a dictatorial regime wherein the inhabitants have been left at the mercy of administrators who do not possess the mandate of inhabitants of the region.

Since the action was effectuated during an extended period of President's Rule, whereby, through the Presidential Order, the President for the Government taking its own consent (under President's Rule) has changed the very character of the State, the Impugned Orders are said to undermine the basic purposes of Article 370, which was to facilitate the extension of constitutional provisions to the State in an incremental d orderly manner, based upon the needs and requirements at a particular time, without dismantling the State Constitution.

Moreover, the separation of UT of Ladakh, which due to its terrain and climatic conditions is dependent on the erstwhile State of Jammu and Kashmir, has also gravely affected the people.

The rights of people to be governed by their elected representatives have also been taken away, in as much as the administration of the UT of Ladakh has been now placed under the control of a Lieutenant Governor who is required to be appointed by the President under Article 239. The President by virtue of the said Act has also been bestowed upon the power to make regulations for the peace, progress and good government of the Union Territory of Jammu and Kashmir under Article 240, states the application.

While alleging sheer abuse of the process of law, it is submitted that the power to manage the administration of a Union territory may flow from the Constitution, however, in absence of any express power, the same cannot be provided by way of a statue.

"…. Article 240 of the Constitution of India, in so far as it related to Part VIII, specifically provided for the power of the President to provide for the regulations for peace, progress and good governance in specific Union Territories. However, in the case of Jammu, Kashmir and Ladakh, no such amendment has been made and indirectly, such a power has been granted by way of an Act, whereas no explicit power exists with the President under the Constitution of India to do so. This is clear from the reading of section 58 of the Act, which provides for the power of President under Article 240 of the Constitution of India."

The Reorganisation Act is further said to have interfered with various Laws formed by the erstwhile Legislature of Jammu and Kashmir.

The action of extinguishing the Legislature itself amounts to overreaching the powers conferred, states the application. In this regard, reliance is place on section 96 of the J&K reorganisation Act, which empowered the Central Government to adapt and modify any law by way of repeal or amendment before the expiration of one year from the appointed day of the Union Territory of Jammu and Kashmir which is 31.10.2019.

The applicants state that while exercising the power under section 96 of the J&K Reorganisation Act, 2019, amendments to various laws applicable in Jammu and Kashmir have been carried out without any express approval or sanction of the people.

Further, due to a non-existent legislature, there exists a limited political space for holding discussions and finding more satisfactory solutions for problems, says the application.

Thus, it has been sought that impugned Act of 2019 be declared unconstitutional, void, and inoperative; along with the corresponding Presidential orders that have been passed.


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