CPI(M) filed Intervention Application in the pending Special Leave  Petition in the Supreme Court challenging Article 370

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By FK WEB DESK on 15/12/2018.

CPI(M) filed Intervention Application in the pending Special Leave  Petition in the Supreme Court challenging Article 370

New Delhi,  December 15: Communist Party of India (Marxist) has filed Intervention Application in the pending Special Leave Petition in the Supreme Court challenging Art. 370 of the Constitution of India – Special Provision for the State of Jammu and Kashmir. The Party is of the unequivocal opinion that Art. 370, shall in no circumstance be annulled, modified or repealed. The party opposes the relief sought in the Special Leave Petition.

As a matter of fact, the declaration sought and the grounds projected and highlighted in the above writ petition have already been adjudicated by the Supreme Court in State Bank of India v Santosh Gupta and Another in (2017) 2 SCC 538  and Purandal Lakhanpal Vs. President of India and others [(1962) 1 SCR  688, AIR 1961 SC 1519], Sampat Prakash Vs. State of Jammu and Kashmir and Anothers. [(1969) 2 SCR 365, AIR 1970 SC 1118].  The Contentions were rejected in those cases.

The partyfirmly believes that for attainment of the goals of part- IV Directive Principlesof State Policy and the Fundamental Rights under part-III, unity in diversity of India is to be protected. Further, the special status guaranteed to the State of Jammu Kashmir under the Constitution of India which has assumed the permanent feature of the Constitution requires protection as any alteration would be against the policy of federalism   envisaged by the framers of Constitution.

Considering the given geographical and topographical position of the Jammu & Kashmir, invasion by tribals at the instigation, aid and support of Pakistan, the majority of Muslim community in Kashmir ,and its identity etc., it can be seen that Jammu & Kashmir has acceded to India in unique circumstances and it possess unique problem which requires a unique solution.

Jammu & Kashmir was the only state to declare its intention to have its own constitution drafted by its own constituent assembly, as far back as 5thMarch 1948. At the time of partition and after, it was free to accede to Pakistan or India, or to become an Independent country. But it decided to accede to India on specific terms, despite the fact that religiously the majority population was following Islam. This unique circumstance was a matter of prime consideration for evolving constitutional machinery to prescribe relationship of the state with the Union of India. It is well documented and recorded that “Jammu & Kashmir state now stands acceded to the Indian Union in respect of 3 subjects namely Foreign affairs, Defence and Communication. It will be for the constituent assembly of the state when convened, to determine in respect of which other subjects the state may accede’’. Article 370 embodies this basic principle of solemn compact pact. It is the machinery to integrate the people of Kashmir with India with heart and soul and to stop their alienation.

The challenge against continuance of Art. 370 has been rejected by the constitutional bench of the Supreme Court in Sambat Prakash’s case. The challenge/contention is that Art. 370 of the Constitution could only have been intended to remain effective until the Constitution of the State was framed and the will of the people of Jammu and Kashmir had been expressed and, thereafter this Article must be held to have become ineffective, so that the modifications made by the President in exercise of the powers under this Article subsequent to the enforcement of the Constitution of the State, would be without an authority of law. The constitution bench was of the opinion that the provisions of Art. 370 continue in force and remain effective even after the Constituent Assembly of the State had passed the Constitution of the State as it has not decided to make Art. 370 inoperative or to cease to exist. The most important provision in this connection is contained in Clause 3 of the Article which lays down that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date, as the President may specify by public notification, if the Constituent Assembly so recommended. Clause (3) is extracted as follows:

“ Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to  be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

The above clause clearly envisages that the Article will continue to be operative and can cease to be operative only if, on the recommendation of the Constituent Assembly of the State, the President makes a direction to that effect. In fact, no such recommendation for abrogation of Art. 370 was made by the Constituent Assembly of the State, nor was any order made by the President declaring that the Article shall cease to be operative.

Federalism is a basic feature and part of basic structure of the constitution of India. To promote fraternity among all the people-citizens assuring the dignity of the individual and the unity and integrity of the nation is our constitutional motto as declared in the preamble of our Constitution. The concept of unity in diversity in the contest of innumerable sub-nationalities, culture of grater and little traditions has got multilayered meaning. Relative autonomy of states on Federal principle is a pre condition for preserving and developing unity and integrity of the nation based on fraternity of all the people with dignity of the individual. Federalism also presupposes acknowledgment of historical realities and special nature and objective factors  with  respect to deferent states and their population and this would give colour and content  federal  relationship of the states with Union of India.

      The Intervention Application is filed through Resmitha R. Chandran Advocate-On-Record. Senior Advocate P.V. Surendranath will appear and argue the matter in the supreme court for the party.

   Intervention Application is attached herewith.

Filed by – Mohammed Yousuf Tarigami, CPI (M) Former Member of Legislative Assembly of Jammu and Kashmir representing Kulgam Constituency. He is also the Member of the Jammu and Kashmir State Committee and Central Committee of   the Communist party of India (Marxist) [CPI (M)].

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