In top courts, tussle over Article 370
http://indianexpress.com/article/explained/supreme-court-delhi-high-court-mehbooba-mufti-article-370-tussle-pdp-bjp-tension-4516507/
Written by Muzamil Jaleel
| New Delhi |
Updated: February 13, 2017 11:52 am
Sharp words in the J&K House by CM Mehbooba Mufti underscore tensions between the PDP, BJP over special status for state. Article 370 and other aspects of special status have been challenged in 6 important cases in SC and Delhi HC.
While coalition partners PDP and BJP had agreed not to touch Article
370 in their “agenda of alliance” in Jammu and Kashmir, sharp
differences on the issue were on display during the latest session of
the Assembly. After Leader of Opposition Omar Abdullah warned Chief
Minister Mehbooba Mufti in the House that the BJP might use the
judiciary to scrap Article 370 because “it has understood it cannot use
legislation”, the Chief Minister said any move to change J&K’s
special status would be “anti national”.
Her comments led to a protest from BJP members, and Speaker Kavinder Gupta expunged the CM’s remarks.
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We the Citizens Vs Union of India and Others, in SC
The petitioner has challenged Article 35A as applicable to J&K on
the ground that the President has no power to modify/amend an article
of the Constitution of India while applying it to J&K. Article 35A
gives special rights and privileges to permanent residents of J&K,
and empowers its legislature to frame any law without attracting a
challenge on grounds of violating the right to equality of people from
other states or any other right under the Indian Constitution. It was
added to the Constitution by a Presidential Order issued in 1954 under
Article 370.
Should Article 35A be struck down, not only will it mean an end to
the special status of permanent residents of J&K, the doors can
opened for the invalidation of 41 Presidential Orders, each of which was
an amendment to, or modification of, the 1954 Order. It is through
these Presidential Orders that the Centre has extended 94 out of 97
entries in the Union List to J&K, and made applicable to the state
260 out of 395 articles of the Indian Constitution.
Mohammad Hanif Lone and Others Vs State and Others, in SC
This case pertains to the issue of reservation in promotion of government officials in J&K. The petition asks “whether Parliament in exercise of its constituent powers under Article 368 could at all amend Article 370 which is a temporary provision”.
A senior law officer of the J&K government said that “as 16(4A)
[the 1995 amendment to Article 16(4) that allowed reservation in
promotions] is not applicable to J&K, the reservation is limited to
recruitment in government service and not to promotions…” The J&K
High Court had, relying on Article 370, ruled that 16(4A) wasn’t
applicable, the official said. The HC had held that “Article 370,
notwithstanding its title showing it a temporary provision, is a
permanent provision of the Constitution and cannot be abrogated,
repealed or even amended… Furthermore, Article 368 cannot be pressed
into service in this regard in as much as it does not control Article
370 — a self contained provision of the Constitution.”
The ruling was challenged in the SC, which has said it would hear the
Government of India’s stand on Article 370, the officer said.
The petitioner has sought a Minority Commission Act for Hindus in
J&K, challenged benefits given to Muslims on the ground that they
are in a majority in the state, and asked for the benefits to be given
to Hindus. The court last month imposed fines of Rs 15,000 on both the
state and central governments for not filing their replies. A J&K
law officer said the PIL had been dismissed by the J&K High Court
earlier. “Minorities at the national level are the majority in 6 states
and UTs across the country. In Punjab, Sikhs are the majority,
Christians are the majority in Meghalaya, Arunachal Pradesh and Mizoram,
while Muslims are the majority in Lakshadweep and J&K. But the
petitioner seeks this change only in J&K. The largest minority in
J&K is part of the largest majority in the country. How can you
change the yardsticks for determining a minority?”
J&K National Panthers Party Vs Union of India, in SC
The petitioner has challenged the Jammu and Kashmir Grant of Permit
for Resettlement in (or Permanent Return to) the State Act, 1982. The
law gives a right of return and resettlement in the state to all
permanent residents who migrated to Pakistan after March 1, 1947. While
the Indian Constitution has a provision for such return, the J&K
Constitution gives the right of resettlement to those who were permanent
residents until 1954.
The Bill was first passed by the Assembly in 1982, and for a second
time after Governor B K Nehru returned it for reconsideration. The
Governor gave his assent, but the legislation had meanwhile been sent to
the Supreme Court by President Giani Zail Singh
for its opinion on whether it would be “constitutionally invalid”. On
November 8, 2001, a five-judge bench “declined to express its advisory
opinion” and returned it “unanswered”. Immediately afterward, a PIL was
filed before the SC and the implementation of the law was stayed.
The law provides people who left the state especially during the
communal carnage in Jammu in 1947, the right to return. It has been
vehemently opposed by every government at the Centre. The primary
beneficiaries of the law would be Muslims.
Surjeet Singh Vs Union of India and Others, in Delhi High Court
The petition has challenged the 1954 Order that adds a proviso to
Article 368 of the Constitution, saying “no such amendment shall have
effect in relation to the State of Jammu and Kashmir unless applied by
order of the President under Clause (1) of Article 370”. After Delhi HC
asked the petitioners why they hadn’t gone to the J&K HC, their
counsel said “judges in J&K High Court do not take oath to bear true
faith and allegiance to the Constitution of India as by law
established”, and a question regarding a Constitutional principle could
not, therefore, be heard before that court. Delhi HC has asked for a
reply from the J&K government and Centre.
As explained above, the ramifications of the 1954 Order being struck
down would be manifold. J&K has fielded the state Advocate General
before the Delhi HC. In fact, J&K HC judges take oath under the
J&K Constitution, where as they also take oath to uphold the
sovereignty and integrity of India.
The petitioner has challenged Article 370, and a Division Bench of the court has reserved its order in the matter.
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The reason why the CM broke her silence on Article 370 is the
apprehension that an adverse court order in any of these cases can
trigger another uprising in Kashmir. While the BJP and groups associated
with it have been encouraging a legal challenge to Article 370 and
other aspects of J&K’s special status, there is a growing suspicion
that the state’s Law Ministry, which is with the PDP, has not put up a
decent legal defence, especially after its failure in the Supreme Court
over the applicability of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest (SARFAESI) Act to
J&K. This Act, which allows banks and financial institutions to
auction residential or commercial properties to recover loans, is seen
as an attempt to breach the Permanent Resident Act, which disallows
non-state subjects to procure and own properties in J&K.
While the Law Ministry has said that it contested the applicability
of the central Act to the state, the state’s former chief standing
counsel in the Supreme Court — he was sacked this week — Sunil Fernandes
has maintained that he “argued strictly as per instructions of the
state government… that the SARFAESI Act indeed applies to the State of
J&K”. According to sources, Advocate General Jahangir Ganai too
wasn’t kept in the loop by the Law Ministry on this sensitive case.
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