Ex-Defence Officers, Bureaucrats Move SC Against Article 370 Move

They sought directions declaring presidential orders of 5 August as “unconstitutional, void and inoperative”.

3 min read
Security personnel stand guard at a checkpoint during restrictions, after Centre abrogated Article 370 and divided Jammu and Kashmir into two Union territories in Srinagar, on Sunday, 18 August.

A group of former defence officers and bureaucrats have moved the Supreme Court challenging the presidential orders and the abrogation of the provisions of Article 370, which gave special status to Jammu and Kashmir.

The fresh plea has been filed by former member of the Home Ministry's Group of Interlocutors for Jammu and Kashmir (2010-11) professor Radha Kumar, former IAS officer of J&K cadre Hindal Haidar Tyabji, Air Vice Marshal (Retd) Kapil Kak, major general (retd) Ashok Kumar Mehta, former Punjab cadre IAS officer Amitabha Pande and ex-Kerala cadre IAS officer Gopal Pillai, who retired as Union home secretary in 2011.

They sought directions declaring presidential orders of 5 August as "unconstitutional, void and inoperative".


‘Unconstitutional, Void and Inoperative’

The plea said, "The brazen unconstitutionality of the Act is unprecedented. By way of an amendment in Article 367, conditions have been sought to be read into Article 370(3), which has the effect of completely nullifying the effect of Article 370 and abrogating the Constitution of Jammu & Kashmir."

It further said, "The state itself has been dismembered by being downgraded as a Union territory and part of it being split to form another Union Territory of Ladakh. This has been followed by a completely lock-in giving no scope to the people of Jammu & Kashmir to have any say in the entire exercise. The above action jeopardises and strikes at the very root of the integration of the erstwhile state of Jammu and Kashmir into India".

The former defence officers and bureaucrats sought declaring Jammu and Kashmir (Reorganization) Act of 2019 as "unconstitutional, void, and inoperative".

The petitioners have stated that Article 370 shall cease to operate only from such date as the president may by public notification declare and this cannot be done under the proviso to Article 370(3) unless there was a recommendation of the Constituent Assembly of the state to do so.

More than half a dozen petitions have been filed in the apex court against the abrogation of the provisions of Article 370 and for lifting of restrictions in Jammu and Kashmir.

These petitions have been filed by advocate ML Sharma, Congress activist Tehseen Poonwalla, advocate Shakir Shabir, National Conference MPs Mohammad Akbar Lone and Hasnain Masoodi, and Anuradha Bhasin, Executive Editor of Kashmir Times, and others.

On 16 August, the apex court had refrained from examining the legal challenges posed to the changes made in the Constitutional status of Jammu and Kashmir, saying that the petitions filed on the "serious issue" of the abrogation of the provisions of Article 370 of the Constitution suffer from defects.

The apex court, which was dealing with the first petition filed on 6 August, a day after the decision to scrap the provisions of Article 370 was announced, expressed its anguish that there have been six petitions on the issue and all were filed with the defects.

It had pulled up advocate Sharma, the first petitioner on the issue, saying his petition has "no meaning".

Chief Justice Ranjan Gogoi had said he spent 30 minutes reading the petition but could not make out anything and also could not understand what was the prayer.

While asking the lawyers to cure the defects in the petitions, the top court had directed the registry to place the matter before the Chief Justice on the administrative side no sooner the defects are removed.

While hearing a separate petition filed Bhasin, the apex court had said it would wait for sometime before passing any direction on the plea seeking removal of restrictions on the media in Jammu and Kashmir, after the Centre said curbs are being lifted gradually.

During the hearing on Friday, the Centre had told the apex court that the situation is improving in Jammu and Kashmir and the curbs are being lifted gradually.

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