New Delhi: The government of India (GoI) justified in the Supreme Court on Monday the abrogation of Article 370 of the Indian Constitution, which gave special status to Jammu and Kashmir, saying the militants and separatist elements, with the support of foreign forces inimical to India, were taking advantage of the situation.
A five-judge bench of Justice N V Ramana, Justice S K Kaul, Justice R Subhash Reddy, Justice B R Gavai and Justice Surya Kant is scheduled to take up for hearing a batch of petitions challenging abrogation of provisions of Article 370 and Article 35A on November 14.
In its reply to the batch of petitions, the GoI said that Article 370, in its original form, was constitutionally described as a temporary provision with respect to Jammu and Kashmir, formed a part of the Constitution of India as adopted by the Constituent Assembly on November 26, 1949.
The GoI’s affidavit said it was observed over the years that the existing regime under Article 370 of the Constitution, and the exceptions/modifications carried out to other provisions of the Constitution of India by Presidential Orders issued under Article 370(1)(d), were impeding, rather than enabling or facilitating, the full integration of the erstwhile state of Jammu and Kashmir with the rest of the country which was neither in the national interest nor in the interest of the State of Jammu and Kashmir.
“The militants and separatist elements, with the support of foreign forces inimical to India, were taking advantage of the situation and sowing discord, discontent and even secessionist feelings among the populace of the state,” the affidavit said.
It said, “What is more, the residents of the erstwhile state were also being denied all the benefits of the rights guaranteed by the Constitution of India to all other citizens of the country.”
The government said it cannot be disputed that the existence of Article 370 for over seven decades, in spite of it being merely a temporary provision, prevented the people of the erstwhile state of Jammu and Kashmir to receive benefits of evolving legal systems as even the amendment of the Constitution of India and other law of Parliament were not applicable to the said state creating a separatist mindset.
It said that accordingly, a decision was taken that it would be in national interest and in the interest of the security and integrity of the country, that the existing regime under Article 370 be discontinued.
“It was also decided that it would be essential that the entirety of the provisions of the Constitution of India be made applicable to the erstwhile State of Jammu and Kashmir, so that the said State and its people may enjoy the full protection of all of the provisions of the Indian Constitution as well as all civil/penal welfare legislations are made applicable,” the affidavit said.
The Centre further said the abrogation of Article 370 would also act as a catalyst for enabling the state to achieve its development potential to the fullest, and to provide to its people the best possible standard of living in an “atmosphere of peace, amity and tranquillity”.
It said these constitutional decisions were effectuated strictly in accordance with the requirements of the Constitution of India.
The government further said that though judicial review is part of the Constitutional power of the court, the justification, efficacy, desirability and the wisdom of such decisions of the President as well as Parliament “is not amenable to judicial review”.
“It is submitted that the sphere of constitutional challenge is to be limited to Part III of the Constitution and the pleadings of the petitioners with regard to the rationality or the wisdom of impugned decision/legislative measures, are to be rejected by this court,” the affidavit said.
Referring to Chapter 21 of the Constitution that deals with temporary, transitional and special provisions in relation to certain states, the Centre said the special provisions from Article 371A to Article 371J contain specific provisions for certain states such as Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Telangana, Sikkim, Mizoram, Arunachal Pradesh, Goa and Karnataka.
“However, the entirety of the Constitution of India is applicable to all of these states. On the other hand, in case of the then State of Jammu and Kashmir, in the first instance, on the Constitution of India coming into force, only Article 1 and Article 370 applied to that State. All other provisions of the Constitution were to be made applicable to the then State of Jammu and Kashmir by the President of India, with such exceptions and modifications as considered necessary,” it said.
The GoI also justified the abrogation of Article 35A of the Constitution which “enabled the then State to make laws giving special rights and privileges to permanent residents, while imposing restrictions upon others”.
Several political parties, including the National Conference (NC), the Sajjad Lone-led J&K Peoples Conference and CPI (M) leader Mohd Yousuf Tarigami have filed pleas, challenging the Centre’s August 5 decision.
The petition was filed by Lok Sabha MPs Mohammad Akbar Lone and Justice Hasnain Masoodi (retd) on behalf of the NC. In 2015, Justice Masoodi had ruled that Article 370 was a permanent feature of the Constitution.
Several other individuals have also moved the apex court challenging the Centre’s decision. PTI

Press Trust of India