The Madras High Court on Tuesday reserved its orders on the question of maintainability of a public interest litigation petition filed by Desiya Makkal Sakthi Katchi (DMSK), challenging the constitutional validity of the Jammu and Kashmir Reorganisation Act of 2019 which provides for bifurcating the State of Jammu and Kashmir into two Union Territories from October 31.
Justices M. Sathyanarayanan and N. Seshasayee deferred their verdict after hearing elaborate arguments advanced on behalf of the petitioner party represented by its president M.L. Ravi. Primarily, the judges raised the question of territorial jurisdiction and wondered how could such a case be filed in the Madras High Court. “No part of cause of action has arisen here except for the fact that you (petitioner) are from Tamil Nadu,” the senior judge in the Bench said. Shooting multiple questions to the petitioner’s lawyer, Justice Seshasayee asked: “How are you affected? You are not a resident of Jammu and Kashmir. If you want to share the sentiments of your fellow citizens, should you not have travelled to Jammu and Kashmir and filed this case in the High Court over there?” Justice Sathyanarayanan intervened to say: “We may not discount your arguments but where is the cause of action?”
Advocate K. Sakthivel said, federalism was a basic feature of the Constitution as per the celebrated decision of the Supreme Court in Kesavananda Bharati’s case (1973). “When such federalism is under threat by 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 contended.
‘Could happen to T.N.’
He claimed that what had happened to Jammu and Kashmir now might happen to Tamil Nadu too. Immediately, Justice Sathyanarayanan said: “You may act on the basis of surmises and conjectures but being an adjudicatory body we can go only by definite actions.” Justice Seshasayee went on to add: “Yours is a fear psychosis for which the court cannot lend its ears now. People of no other State appear to have had such a fear psychosis.”
However, Mr. Sakthivel persisted on his stand and argued that he had not approached the court merely on the basis of apprehensions since the Centre had already bifurcated one State in the country into two Union Territories and it might not take much time for it to do the same with other States. Not appearing to be satisfied with his submissions, the judges pointed out that the Supreme Court too was already seized of the same issue.
In its affidavit, the petitioner party made it clear that it was not challenging the Constitution (Application to Jammu and Kashmir) Order of 2019 issued by the President on August 5, by exercising his powers under Article 370 of the Constitution, for making all provisions of the Constitution applicable to the State of Jammu and Kashmir. It also did not challenge the repeal of the special status since it was a State specific issue.
Nationwide impact
Nevertheless, the consequent legislation which provides for reorganising the State of Jammu and Kashmir into two Union Territories would have a nationwide impact, and therefore, the party was keen on challenging it, the affidavit read.
Referring to Articles 2 and 3 of the Constitution which provide for altering the boundaries of existing States and union territories and to form a new State or union territory by uniting a part of any State or union territory to any other State or union territory, The petitioner party contended that the Constitution did not contain any provision for reducing the status of a State to multiple Union Territories.
