New Delhi: The Narendra Modi government has defended its decision to scrap Article 370, claiming that the constitutional provision led to “grave problems of terrorism, militancy and separatism” in the “erstwhile state of Jammu and Kashmir”.
Replying to a number of petitions challenging its decision in the Supreme Court, the government has also stated that a Presidential order is not amenable to judicial review.
The government has further claimed that the “regime” in place in J&K, when Article 370 was operational, had led to “inimical forces from across the border” exploiting the state.
“This regime has worked to the detriment of the state itself and has significantly contributed to the grave problems of terrorism, militancy and separatism which plague it,” the affidavit filed by the Ministry of Home Affairs (MHA) reads.
“Inimical forces from across the border have exploited it. Growth potential of J&K is largely untapped despite large monetary support from the government of India,” it adds.
The apex court is hearing a batch of 10 petitions challenging the constitutionality of the abrogation of Article 370, which granted special status to Jammu & Kashmir. ThePrint has accessed the reply filed by the Modi government on 9 November.
A five-judge Constitution bench headed by Justice N.V. Ramana had on 1 October allowed the Centre and the Jammu and Kashmir administration to file counter-affidavits to the petitions. As of now, however, only the MHA has filed its counter.
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Presidential order not subject to judicial review
The Modi government also asserted in court that the 5 August Presidential order, which de-operationalised Article 370 and repealed Article 35A, and other such presidential orders are not “subject to judicial review” or interference by a court.
“While judicial review is a part of the constitutional power of this honorable court, it is submitted that the justification efficacy desirability and the wisdom of such decisions of the honourable president as well as the parliament is not amenable to Judicial review,” the Centre stated.
The petitioners have claimed that the 5 August Presidential order was a “colorable exercise of power” or an exercise of power beyond prescribed limits. It was through this order, the petitioners state, that an amendment was made by which reference to the expression “Constituent Assembly of the State” has been read as “Legislative Assembly of the State”.
The government has, however, argued that the August 5 order was not the first one and that “under Article 370 (1)(d) as many as 54 orders have been issued from time to time”.
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Article 35A obstacle to socio-economic development
The 5 August Presidential order had also repealed Article 35A, which was included in the Constitution through a presidential order of May 1954. The provision safeguarded the interests of “sons of the soil” and envisaged creation of a group of persons, “permanent residents”, who are entitled to be provided “special rights and privileges” in matters such as employment in the State government and acquisition of immovable property.
In its affidavit, the government has stated that Article 35A was an “obstacle for the socio economic development of J&K”.
“It prevented investment in the state and adversely impacted job creation of the youth which again resulted in a cascading effect on other developmental indicators. Women of J&K were also discriminated against if they chose to marry a non permanent resident,” the affidavit reads.
The government has also lamented the fact that when constitution of India was not in operation as a whole in the valley, there was a huge loss of not only civilian lives but also that of jawans.
“The unfortunate situation prevailing on the ground affected not only the people of the region but also the brave and dedicated member of the armed forces and police forces coming from different parts of the country,” said the government adding that “since 1990 till 4th August 2019, a total of 41,861 persons have lost their lives in over 70,000 incidents of terrorist violence”.
The five-judge Constitution bench will now begin hearing the case from 14 November.
This is an old trick of Modi government, to declare something out of the very purview of the Supreme Court. They tried to do it in the case of Rafale. Now they are saying the same for 370 and 35 A. This may be or may not be true, only legal experts can comment, but ANY action that hurts the citizens’ FUNDAMENTAL RIGHTS will definitely fall within the powers of the courts. Let the government restore internet and rights of speech etc in Kashmir and then argue about 370 being or not being within the ambit of the SC.
How would 35A impede development? In Himachal Pradesh also outsiders cannot buy property, but how does that state have a booming pharmaceutical manufacturing industry and not Kashmir? Can Modi government point out SPECIFIC cases since 2014 when its development initiative in Kashmir was frustrated because of 35A?
If restrictions on “ outsiders “ buying property or settling freely are hurting investment and economic activity, there should be a national consensus on doing away with similar restrictions that exist in a number of hill states and a large part of the north east.