NAME OF THE CASE: DR. SHAH FAESAL AND ORS V. UNION OF INDIA AND ANR.
CITATION: AIR 2020 SUPREME COURT 3601, AIRONLINE 2020 SC 269, AIRONLINE 2020 SC 933
DECIDED DATE: 2nd MARCH 2020
PETITIONER: DR. SHAH FAESAL AND ORS
RESPOMDENT: UNION OF INDIA AND ANR.
BENCH/JUDGES: Justice Surya Kant, Justice B.R. Gavai, Justice R. Subhash Reddy, Justice Sanjay Kishan Kaul, Justice N.V. Ramana
LEGAL PROVISION: Indian Constitution (Article 370)
The Article 370: Temporary provisions with respect to the State of Jammu and Kashmir
INTRODUCTION:
The Constitution of India was enforced on January 26, 1950, with the unique provision of Article 370, which accords special status to Jammu and Kashmir. This article was added on October 17, 1949, and empowered the State to formulate its own Constitution. The legislative power of the Parliament was restricted in respect of Jammu and Kashmir. The State Government’s approval was necessary for the enforcement of items mentioned in the Union List, and Indian citizens who were not permanent citizens of the State were not allowed to buy properties in the State. On August 5, 2019, Article 370 was abrogated by the Indian Government, making the laws of the Indian Constitution applicable to all residents of Jammu and Kashmir and Ladakh. However, the nature of Article 370 remains a contentious issue, as evident in Supreme Court judgments. In the case of Prem Nath Kaul v. State of Jammu and Kashmir, the Supreme Court held that Article 370 is temporary, while in Sampat Prakash v. State of Jammu and Kashmir, the Supreme Court recognized it as a permanent provision, giving perennial power to the President to regulate the relationship between the Union and the State. The contradictory views were resolved in the case of Shah Faesal v. Union of India, where the Supreme Court rejected the plea to refer these petitions to a larger bench.
FACTS:
The Shehla Rashid (graduate of JNU) and Shah Faeshal (Retired IAS officer) filed a petition in the Supreme Court to reverse the decision for abrogating the Article 370 which gave a special status for Jammu and Kashmir and spilt the Jammu and Kashmir into two Union Territories. They contested the government’s modification of Article 370 in the Supreme Court of India, arguing it was unconstitutional and violated fundamental rights like freedom of speech and movement. They also argued that the reorganization of a state does not fall within Parliament’s legislative competence.
As per Article 370, the State (Jammu and Kashmir) was authorized to have its own Constitution and also the legislation passed by the Parliament of India was applicable only when the recommendation of the State Government of Jammu and Kashmir. In whatever way, the Article 370(3) of the Constitution of India enhance the power to the President of India to amend or repeal the Article 370 and by this power the president of India declared the Article 370 to be inoperative on 5th Augutus 2019. As well as any order made by the parliament which is intra vires to the Constitution are applicable to the State of Jammu and Kashmir like other States in India. Mr. Raju Ramachandran, senior counsel, has argued the constitutionality of certain orders. However, senior advocates Dinesh Dwivedi and Sanjay Prakash argue that the Supreme Court in Sampat Prakash v. State of Jammu and Kashmir (1969 AIR 1153) did not consider the facts in Prem Nath Kaul v. State of Jammu and Kashmir (1959 AIR 749), both related to Article 370. They argue that this oversight calls for a larger bench to resolve any conflict between these decisions, as the current bench is of the same strength as Sampath Prakash and Prem Nath Kaul benches.
ISSUES RAISED
Whether the resolution passed by the legislation for abrogating the Article 370 is constitutionally valid or not?
Whether the parliament of India violates the fundamental rights of the people of State of Jammu and Kashmir?
CONTENTION
Petitioner’s Contentions: –
Abrogation of Article 370 is Unconstitutional
The Petitioners argued that the government of India abrogated the Article 370 is ultra vires to the Constitution of India. Furtherly, they argued that the Article 370 clause (3), that an amendment Can be made to get rid of or change the status quo if there is a presidential order to do, but at the first, there must be get the approval from the Constituent Assembly of State of Jammu and Kashmir.
Failure of Federalism
The petitioners argued that the abrogation of Article 370 by the Central Government of India without consulting with the State Government of Jammu and Kashmir. They contested that as per the concept of federalism the Central and State has a power, with the consult of the State can implement any law in the State. But by abrogation of Article 370, disturb the concept of federal structure as the center unilaterally took the decision.
Violation of Fundamental Rights
The petitioners argued that the complete suppression for communication and also restriction on movement, interaction and meetings violated the fundamental rights of the people of Jammu and Kashmir which was ensured in the Article 19 and also violating the Article 21 of the Constitution of India which ensures the right to life and personal liberty.
Questioning the authority of parliament
The Petitioners argued that the parliament didn’t have the competency to divide the State into the Union Territories. As well as for dividing the State into the Union Territories, there must be a concurrence of a house but it didn’t exist because there was no elected Jammu and Kashmir Legislative Assembly in the house.
Respondent’s Contentions: –
Presidential power to abrogate
The Respondents contended that under Article 370(1)(d), the President of India had the authority to amend the Jammu and Kashmir’s special status. Thus, the abrogation of Article 370 is not unconstitutional. The President has the power to amend.
Parliament’s Authority
The Respondents contended that the under Article 3, the parliament has the power to Form a new State or alter the area, boundaries or names of existing States. The dissolution of the legislative assembly of Jammu and Kashmir doesn’t impede the ability of the Article 3.
Fundamental Rights were not an Absolute Right
The Respondents contended that the Fundamental Rights under the Constitution of India are not an absolute right which has a reasonable restriction. They contented that on upholding the national security for preventing the violence, impose the restrictions on communication and movement.
RATIONALE
The Court firstly dealt with the power of the President under Article 370(1)(d). The Court held that the President has the power under this Article by considering the historical context and nature of the Article. So, the Abrogation of Article 370 is Constitutionally valid.
Furtherly, the court deals with whether the fundamental rights are being violated or not. The court measures the risk of violating the fundamental rights and the court noticed that the action made by the Government that is restriction for movement and communication were necessary.
Then the Court dealt with the problems related the federalism. Here, the Court tested whether the abrogation of Article 370 and Conversion of State were against the principles of federalism. The court held that the Centre has only the power to form or alter the State not the Union Territories under Article 3 but it now talks about converting the States into Union Territories. By restoring the Statehood of Jammu and Kashmir by the Central Government showed the Federal structure of India.
DEFECTS OF LAW
The decision made by the central government to abrogate the Article 370 leads to the unitary overcome the federalism. This is referred to as the central Government assault on federalism. The court enquire and investigate that by restoring the statehood of that state by Central Government showed the federal structure.
The Parliament decides to the divide the State of Jammu and Kashmir into two Union Territories without a legislative assembly of that State. The court interpret the Article 3 and allow the converting of State into Union of Territory.
The violation of fundamental rights by blocking the communication of the people and violate their civil liberties. As well as restricting their right of movement. The Supporters of Government used a ground as national security as a defense for imposing this restriction.
INFERENCE
In this case the abrogation of Article 370 marked a significant shift in the constitutional relationship between Jammu and Kashmir and the Union of India. The Supreme Court upheld the government’s actions, focusing on Article 370(1)(d). However, the case raises questions about the provisional nature of Article 370 and its potential to undermine democratic legitimacy. The reorganization of Jammu and Kashmir into two Union Territories without state legislature consultation sets a dangerous precedent, as it could be interpreted as centralizing or acting at variance with the federal principle of the Indian Constitution. The government argued that imposing communication blackouts and movement restrictions was necessary for national security, but the long-lasting internet blackout had overwhelming socio-economic and psychological effects on the people of Jammu and Kashmir. The case raises questions about the applicability of state power and fundamental rights enforcement. The court’s decision to allow the reorganization of Jammu and Kashmir to continue despite no functioning state legislature and political party references raises procedural ambiguity, potentially undermining democratic procedures. Stronger procedural safeguards are crucial to ensure open, democratic approval, and honourable involvement of affected states.
CONCLUSION
The Supreme Court’s Judgment on Dr. Shah and Ors. V. Union of India and Anr. made a drastic change in the India. This shows the restriction on fundamental rights while on the ground of national security. By this case, the Jammu and Kashmir Reorganization Act, 2019 was declared as Constitutionally valid, by which bifurcated the State into Two Union Territories. By this case the court affirmed that the Article 370 was a temporary provision for giving a special status to the State of Jammu and Kashmir.
ESAKKIPANDI B
3rd YEAR B.A., LL.B.
CHENNAI DR. AMBEDKAR GOVERNMENT LAW COLLEGE, PUDUPAKKAM