Abrogation of Article 370 unconstitutional, people of J&K bypassed: Petitioners to SC

New Delhi: The Centre's decision to abrogate provisions of Article 370 was "unconstitutional" since people of Jammu and Kashmir were "bypassed" and any proposal for altering the constitutional status of the erstwhile state should emanate from the citizens there, one of the petitioners said in the Supreme Court on Tuesday.

A 5-judge Constitution bench headed by Justice N V Ramana, which commenced hearing on batch of pleas challenging the constitutional validity of the Centre's decision, was told by the petitioner that it was violative of the Constitution as orders were passed in "disregard of consent" of people of J&K.

Provisions of Article 370, which gave special status to the erstwhile state of Jammu and Kashmir, was abrogated by the Centre on August 5.

A number of petitions have been filed in the matter including that of private individuals, lawyers, activists and political parties and they have also challenged the Jammu and Kashmir Reorganisation Act 2019, which splits J&K into two union territories -- Jammu and Kashmir and Ladakh.

Senior advocate Raju Ramachandran, appearing for bureaucrat-turned-politician Shah Faesal, Shehla Rashid and other petitioners, said that Jammu and Kashmir was under President's Rule from December 19, 2018 till October 31 this year and "will of the people" was not there in the concurrence given by state for abrogation of provisions of Article 370.

He told the bench, also comprising justices S K Kaul, R Subhash Reddy, B R Gavai and Surya Kant, that powers of the President and Parliament during period of proclamation under Article 356 is in its very nature "temporary" and it cannot be used to bring "irreversible" constitutional changes.

"The record indicates that neither the President nor the Governor held any consultations on the issue either with the public at large or with members of the legislative council," Ramachandran said in his outline of submissions which was handed over to the bench.

"The concurrence ought to be set aside for violating Article 14 of the Constitution for non-consideration of relevant factors and for not giving a hearing to affected parties - including the people of Jammu and Kashmir," he said.

Ramachandran said, "The will of the people finds no expression in the concurrence of the government of the State provided by the Governor, who is merely substituting for a popularly elected government as an emergency measure under Article 356 of the Constitution."

Referring to Constitutional provisions, he said law made by Parliament for a state which is under President's rule is "reversible" if the elected government later finds it to be bad and it can be repealed by subsequent law.

"The Constitutional order (abrogating provision of Article 370) was unconstitutional as it bypassed the people of Jammu and Kashmir," he said.

He said the Reorganisation Act 2019, is "manifestly ultra vires" the Constitution of Jammu and Kashmir "which not only recognises and mandates the status of Jammu and Kashmir as a state but also defines its territory under

Article 4".