NEW DELHI: The government’s proposal to end the autonomy of Jammu and Kashmir can be challenged in court on several counts.
Both the President’s order as well as the resolution tabled in Parliament which proposes to effectively scrap the special status enjoyed by the state, are ought to be questioned in court, experts say. In the past, various high courts and the Supreme Court have ruled that the provision is a permanent one.
Legal experts, however, seemed divided over the Centre’s decision to abrogate provisions of Article 370. One section termed it a historic step while many described it as a complicated move fraught with serious political consequences.
Experts say that the Supreme Court will be called upon to decide for very technical interpretation of the law.
The President’s order, which paved way for issuance of the Resolution that proposes doing with special status of the state, states that the order has been issued with the “concurrence of the government of Jammu and Kashmir”. However, in the absence of an elected state government, can the President declare so? The very basis of the order may be challenged, say experts.
Also, the President’s order which amended Article 367 of the Constitution may not be able to stand legal credibility. Article 367 is meant to act as a guide; it helps in the interpretation of certain laws. But many experts feel that in Monday’s order, the government used it for major modifications to change the character of the state.
For instance, the President declared the Governor of J&K to be equivalent of Sadar-e-Risayat of the Constituent Assembly and also declared that the Constituent Assembly shall be considered as Legislative Assembly of the state. It is these changes which enabled the government to issue a resolution scrapping provisions of Article 370.
Senior advocate Rajesh Mishra said the SC may be asked if the government’s decision has impacted the basic structure of the Constitution, which Parliament has no power to alter. Though experts believe the order might not be stayed immediately but several litigations may reach court.
Former attorney general Soli Sorabjee was of the view that “nothing revolutionary has been done (by the government)”. Laws not applicable to the state so far will now be applicable. He was referring to earlier provisions of Article 370, which had provided that state assembly the power to enforce or not enforce the central law in Jammu and Kashmir.
Former solicitor general and senior advocate Harish Salve termed the legal situation pertaining to Articles 370 and 35A “very complicated”.
US ASKS INDIA- PAKISTAN TO MAINTAIN PEACE ALONG LOC
US on Monday said it was “closely” observing the events in Jammu and Kashmir following the revocation of Article 370 of the Constitution by the Indian government and urged all stakeholders to maintain peace and stability along the Line of Control (LoC). State Department Spokesperson Morgan Ortagus said, “We call on all parties to maintain peace and stability along the Line of Control.” “We are closely following the events in Jammu and Kashmir. We take note of India's announcement revising the constitutional status of Jammu and Kashmir and India’s plan to split the state into two union territories,” Ortagus said when asked to comment on India’s decision to revoke J&K’s special status.