Holds as not maintainable a challenge made to the J&K Reorganisation Act of 2019
If at all any person could be aggrieved over the withdrawal of special status to Jammu and Kashmir and the bifurcation of the State into two Union Territories (with effect from October 31) without the approval of its Legislative Assembly, it could only be a permanent resident of the then State of Jammu and Kashmir and not anyone else, the Madras High Court ruled on Thursday.
A Division Bench of Justices M. Sathyanarayanan and N. Seshasayee said so while holding as not maintainable a writ petition filed by Desiya Makkal Sakthi Katchi (DMSK) challenging the constitutional validity of the Jammu and Kashmir Reorganisation Act of 2019 which bifurcated the State.
Since the political party had been represented by its president M.L. Ravi of Chennai, the Bench said: “The petitioner, admittedly, is not a resident of Jammu and Kashmir and if at all any person is aggrieved by the abrogation (sic) of Articles 370 and 35A of the Constitution and the enactment, it could be the person who is a permanent resident of the then State of Jammu and Kashmir.”
The petitioner’s counsel K. Sakthivel had argued that every citizen of the country was entitled to challenge a Central law that impinges upon the federal character of the nation. He pointed out that federalism had been recognised as a basic feature of the Constitution in the much-celebrated decision of the Supreme Court in Kesavananda Bharati’s case.
Apprehending that what had happened to Jammu and Kashmir might happen to Tamil Nadu too someday, the advocate said: “When federalism is under threat by the activities of the Centre which could end up converting the entire nation into a Union Territory, a citizen can approach any court of law in exercise of his duty to uphold the values of the Constitution.”
He also relied upon a judgement delivered by the Supreme Court in Kusum Ingots and Alloys Limited versus Union of India in 2004 to claim that a Central law could be put to challenge before any High Court in the country. However, rejecting his submission, the Bench pointed out that the apex court had held so when a central law applicable to the entire nation was challenged.
In Kusum Ingots’ case, what had been challenged was the constitutional validity of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act of 2002. Then, that Act was applicable across the country except the State of Jammu and Kashmir in view of the special status granted to the latter under Article 370 of the Constitution.
Therefore, the Supreme Court had held that the law could be challenged even in Delhi High Court though the appellant company had its registered office in Mumbai and the SARFAESI proceedings against it had been initiated by the Bhopal branch of a nationalised bank.
“The said decision will have no application to the case on hand especially with regard to the objection raised by the Registry of this court on the ground of territorial jurisdiction for the reason that the abrogation of Articles 370 and 35A by way of a Presidential order and the enactment of Jammu and Kashmir Reorganisation Act of 2019 would have application only to Jammu, Kashmir and Ladakh regions,” the Bench concluded.