Article 370: Petition filed in Supreme Court against Centre’s notification on J&K

[Tom M]

Kashmir is not India's internal matter. Kashmir is on the agenda of United Nations Security Council as an unresolved international dispute whose final accession to India or Pakistan is yet to be decided under international law.

You can make as many amendments to your constitution as you like, it will not (and cannot) alter the disputed status of J&K under International Law

Exactly, your second statement is the answer to your first. Whatever changes that is being made is for internal administrative purpose, that will be what GOI will argue before the world and with good reasons. It can neither change the status of the dispute nor the territorial integrity of the place under question.

Article 370(3) states that a presidential order may revoke article 370 only when the president has received the recommendation of the Constituent Assembly of the state of Jammu and Kashmir. The power to recommend that Article 370 be declared inoperative or operative with modifications was specific to the constituent assembly which ceased to exist in 1957. Whether or not the legislative assembly (let alone governor) can have those powers is debatable. As per J&K Highcourt, it does not. It's not as simple as you think it is

It depends on the interpretation of the law, and I guess the SC is more than qualified to decide upon the merits and demerits. I strongly believe, the SC won't make the amendment null and void, rather it will put it on hold and ask the center to conduct the general elections, seek the opinion of the constituent assembly and then come back again to the court. Let's just wait and see.

 

[M. Sarmad]

Note one thing here... Parliament is always higher than Supreme Court.... Supreme Court can only give directions using the law passed from Parliament it can't order Parliament, by the way not even Supreme Court can do anything because the resolution is passed and has been published in government gazette....

Not necessarily. The Supreme Court of India has already ruled last year that Article 370 cannot be abrogated. As per article 147 of your Constitution, The SC has ultimate judicial authority to interpret the Constitution and decide questions of national law.

 

[waz]

Article 370: Petition filed in Supreme Court against Centre’s notification on J&K
Legal Correspondent
NEW DELHI, August 06, 2019 22:29 IST
Updated: August 06, 2019 22:54 IST

Advocate says the move was unconstitutional and illegal
A writ petition was filed in the Supreme Court on Tuesday challenging the August 5 notification of the Constitution (Application to Jammu and Kashmir) Order of 2019, which amends Article 370 of the Indian Constitution and scraps its 65-year-old predecessor — The Constitution (Application to Jammu and Kashmir) Order of May 14, 1954 — as unconstitutional, illegal and arbitrary.

The petition filed by advocate M. L. Sharma is likely to be mentioned before Justice N.V. Ramana on Wednesday. The Chief Justice of India and Justice S.A. Bobde, the second senior most judge, are sitting in a Constitution Bench in the Ayodhya title suit appeals. Justice Ramana is ranked third in seniority.

Mr. Sharma said his petition refers to how the political leaders of Jammu and Kashmir were detained/arrested before the issuance of the August 5 notification. There was no meaningful legislative or representative debate, he submitted.

By junking the 1954 Order, the notification takes away the special rights and privileges enjoyed by the residents of Kashmir. It has effectively allowed the entire provisions of the Constitution, with all its amendments, exceptions and modifications, to apply to the area of Jammu and Kashmir, the petitioner contended. The 2019 notification superseded the 1954 Order and declared that “all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir”.

The August 5 notification has been issued under Article 370 of the Constitution. In short, the government employed Article 370, which had once protected the 1954 Order giving special rights to the people of J&K, to scrap the more than 60-year-old Order. The government justified the notification by saying that it closes the “chasm” between residents of J&K and citizens of other parts of the country.

The second part of the August 5 notification dealt with the addition of a new clause to Article 367, which amends the proviso to clause (3) of 370. Article 367 deals with the applicability of the General Clauses Act, 1897, to interpret the provisions of the Constitution. The August 5 notification amends the expression “Constituent Assembly”, contained in the proviso to clause (3) of Article 370, to mean “Legislative Assembly”.

Clause (3) of Article 370 gives the President power to end the special rights and privileges of the people of J&K under the 1954 Order. However, the clause carried the rider that the President had to first get the consent of the Constituent Assembly of J&K before issuing such a notification. This rider or check on the President’s power was intended to give the people of the State a say in their own future.

However, the Constituent Assembly ceased to exist in 1956 and did not abrogate Article 370, which was deemed to be a permanent feature of the Constitution.

The August 5 notification tided over the obstacle of a non-existent ‘Constituent Assembly’ by amending the expression in the proviso to ‘Legislative Assembly’. An amendment in Article 370 should have undergone the constitutional amendment procedure envisaged under Article 368 of the Constitution, the petitioner said.
---
So the legal battle starts.

Lol what a joke.....They'll be rubbing stamping it.

 

[M. Sarmad]

Exactly, your second statement is the answer to your first. Whatever changes that is being made is for internal administrative purpose, that will be what GOI will argue before the world and with good reasons. It can neither change the status of the dispute nor the territorial integrity of the place under question.

Bifurcating / integrating a territory that is disputed (and whose accession is yet to be decided) under international law constitutes its violation. It's really that simple.

It depends on the interpretation of the law, and I guess the SC is more than qualified to decide upon the merits and demerits. I strongly believe, the SC won't make the amendment null and void, rather it will put it on hold and ask the center to conduct the general elections, seek the opinion of the constituent assembly and then come back again to the court. Let's just wait and see.

That's possible. But what makes you believe that the SC will go against it's earlier decision?

 

[Tom M]

Bifurcating / integrating a territory that is disputed (and whose accession is yet to be decided) under international law constitutes its violation. It's really that simple.

I think it is not. Actually it's Pakistan who set the precedent years back, by negotiating and ceding a portion of a territory under dispute to a third party. (The Trans-karakoram Tract)

That's possible. But what makes you believe that the SC will go against it's earlier decision?

Which earlier decision?? SC never told that Article 370 or 35A can't be removed as far as I know.

 

[El Sidd]

Article 370: Petition filed in Supreme Court against Centre’s notification on J&K
Legal Correspondent
NEW DELHI, August 06, 2019 22:29 IST
Updated: August 06, 2019 22:54 IST

Advocate says the move was unconstitutional and illegal
A writ petition was filed in the Supreme Court on Tuesday challenging the August 5 notification of the Constitution (Application to Jammu and Kashmir) Order of 2019, which amends Article 370 of the Indian Constitution and scraps its 65-year-old predecessor — The Constitution (Application to Jammu and Kashmir) Order of May 14, 1954 — as unconstitutional, illegal and arbitrary.

The petition filed by advocate M. L. Sharma is likely to be mentioned before Justice N.V. Ramana on Wednesday. The Chief Justice of India and Justice S.A. Bobde, the second senior most judge, are sitting in a Constitution Bench in the Ayodhya title suit appeals. Justice Ramana is ranked third in seniority.

Mr. Sharma said his petition refers to how the political leaders of Jammu and Kashmir were detained/arrested before the issuance of the August 5 notification. There was no meaningful legislative or representative debate, he submitted.

By junking the 1954 Order, the notification takes away the special rights and privileges enjoyed by the residents of Kashmir. It has effectively allowed the entire provisions of the Constitution, with all its amendments, exceptions and modifications, to apply to the area of Jammu and Kashmir, the petitioner contended. The 2019 notification superseded the 1954 Order and declared that “all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir”.

The August 5 notification has been issued under Article 370 of the Constitution. In short, the government employed Article 370, which had once protected the 1954 Order giving special rights to the people of J&K, to scrap the more than 60-year-old Order. The government justified the notification by saying that it closes the “chasm” between residents of J&K and citizens of other parts of the country.

The second part of the August 5 notification dealt with the addition of a new clause to Article 367, which amends the proviso to clause (3) of 370. Article 367 deals with the applicability of the General Clauses Act, 1897, to interpret the provisions of the Constitution. The August 5 notification amends the expression “Constituent Assembly”, contained in the proviso to clause (3) of Article 370, to mean “Legislative Assembly”.

Clause (3) of Article 370 gives the President power to end the special rights and privileges of the people of J&K under the 1954 Order. However, the clause carried the rider that the President had to first get the consent of the Constituent Assembly of J&K before issuing such a notification. This rider or check on the President’s power was intended to give the people of the State a say in their own future.

However, the Constituent Assembly ceased to exist in 1956 and did not abrogate Article 370, which was deemed to be a permanent feature of the Constitution.

The August 5 notification tided over the obstacle of a non-existent ‘Constituent Assembly’ by amending the expression in the proviso to ‘Legislative Assembly’. An amendment in Article 370 should have undergone the constitutional amendment procedure envisaged under Article 368 of the Constitution, the petitioner said.
---
So the legal battle starts.

So you trust the Indian justice system more than the Pakistani justice system?

 

[M. Sarmad]

I think it is not. Actually it's Pakistan who set the precedent years back, by negotiating and ceding a portion of a territory under dispute to a third party. (The Trans-karakoram Tract)

It sure is a violation of international law.

As for the Sino-Pak boundary agreement of 1963, it does not change the status of Kashmir as it is 'provisional'.
The article 6 clearly states :

“The two parties have agreed that after the settlement of the Kashmir dispute between Pakistan and India, the sovereign authority concerned will reopen negotiations with the Government of the People’s Republic of China on the boundary, as described in Article Two of the present agreement, .."

Which earlier decision?? SC never told that Article 370 or 35A can't be removed as far as I know.

There are multiple such decisions in fact. for example:

• The top court said the Article 370 has acquired permanent status through years of existence, making its abrogation impossible.

https://timesofindia.indiatimes.com...status-supreme-court/articleshow/63603527.cms

 

[Tom M]

It sure is a violation of international law.

Sorry but as far as I know. There is no such law.

Again who come when the two Articles 370 and 35A were incoperated as part of constitution of India years after the Kashmir dispute begin and it is between the constituent assembly of J&K and Union of India. It's a local law and as such the international laws won't have any precdence as long as the territorial integrity of the disputed territory is maintained. J&K including Ladakh is still a disputed territory no matter whatever changes happen for internal administrative purpose.

Moreover GOI had played it little cheeky, that never abolished Article 370, rather they made it toothless.

As for the Sino-Pak boundary agreement of 1963, it does not change the status of Kashmir as it is 'provisional'.
The article 6 clearly states :

“The two parties have agreed that after the settlement of the Kashmir dispute between Pakistan and India, the sovereign authority concerned will reopen negotiations with the Government of the People’s Republic of China on the boundary, as described in Article Two of the present agreement, .."

Wow, just like Pakistan don't consider any Indian agreements and law like Article 370 etc. legal. Why do you expect India to consider a Sino-Pak agreement of 1963 to be legal ??

No matter what, Pakistan had unilaterally negotiated a part of the disputed territory with a third party without involving other stakeholders. This in itself had set a precedent.

There are multiple such decisions in fact. for example:

• The top court said the Article 370 has acquired permanent status through years of existence, making its abrogation impossible.

https://timesofindia.indiatimes.com...status-supreme-court/articleshow/63603527.cms

I guess you missed the fundamental point here. Those articles can be removed only after the approval of the constituent assembly of J&K. And since it doesn't exist since 1957, the temporary Article became almost permanent.

That want I was also saying, that is the only point that will be contested in the court. And I guess the SC may very well give the center a chance to make arrangements to constitute an assembly and then proceed with the rest. Either way it will be complicated. Let's wait and see.

 

[RayOfLight]

Got this in WhatsApp: how BJP planned and executed this, good read!

At first The Crooked politicians in Kashmir Made sure that Article 370 (which was a Temporary measure in it's way for Kashmir to assimilated into the Indian state) stays hanging for generations.

They first put pressure on Nehru to constitute the "Constituant Assembly" and when it was made the same body recommended Article 370 and 35A which then came into effect easily thanks to Chachaji.

This would be removed and J&K assimilated into India after the Approval of Constituent Assembly within 10yrs. That was the original plan. But in 1957 Constituent Assembly got dissolved and never reformed again. This was done so that the temporary article 370 becomes permanent as it was written that without constituent assembly's approval this article can't be removed.

In 2018 A petition was filed in Supreme Court Asking why can't Article 370 be removed and the SC replied with the same judgement that as there is no constituent assembly hence the Article can't be removed. Most politicians mentioned that Article 370 can never be removed and if removed unlawfully by force then Kashmir will burn etc.

Now come to the Planning and execution of the current govt.

This started with the PDP BJP alliance govt (M not sure if they planned it beforehand or got the idea much after this unlikely alliance was formed). But by June 2018 BJP withdraws support and the govt falls.
Now J&K comes under Governor's rule but not before parties had some period of govt running. This way they can't say that the System was Unfair. Remember the Fax machine mulfunction affair in governor's office that led to the declaration of governor's rule!? Anyhow the governor's Rule was Imposed.

Now comes December 2018 when Govt of India proposes a new bill Article 356 that goes to Supreme Court where govt says that the SC/ST of J&K don't get the benifits of Reservations so SC should give the powers of J&K Legislative Assembly Authority to Parliament through this bill so that Governor can provide the system for SC/STs to have their rights in J&K. SC saw nothing wrong in it and Authorised this Bill. Nobody gave any importance to this bill and it passed Quietly.

This became the main Building Block of what happened later.

After that Govt waited and then in August 2019 moves another Amendment in form of Article 367 which was to give the powers of "Constituent Assembly" to "Legislative Assembly".

That very Constituent Assembly which died in 1957 and was preventing the quashing of Article 370.

This Concluded the next step.

Now......

The powers of Constituent Assembly was with Legislative Assembly and the power of Legislative Assembly inturn was with the Governor because of Article 356 and 367.

This is the Roadmap how the Road was cleared for the Final bill of Removal(Modifications actually, Clause I still stands but it's in India's favour) of Article 370 was presented in parliament After President of India Received Clearance from Governor of J&K (who now possessed the power of that very Constituent Assembly which was dissolved in 1957).

This way All necessary Legalities were taken care off while not letting anyone know about what is actually happening.

So you see Very wisely and Quietly the govt corrected the mistakes that led to creation of Article 370 and then used proper timing (after securing J&K with security Forces) for The final announcement.

So now that you can see that this did not happen overnight and needed years of Planning and execution You can Realise what an Excellent work this govt did.

 

[M. Sarmad]

Sorry but as far as I know. There is no such law.
Again who come when the two Articles 370 and 35A were incoperated as part of constitution of India years after the Kashmir dispute begin and it is between the constituent assembly of J&K and Union of India. It's a local law and as such the international laws won't have any precdence as long as the territorial integrity of the disputed territory is maintained. J&K including Ladakh is still a disputed territory no matter whatever changes happen for internal administrative purpose.
.

Sorry, but its just your ignorance. You are as clueless on international law as you are on Kashmir Issue.

Wow, just like Pakistan don't consider any Indian agreements and law like Article 370 etc. legal. Why do you expect India to consider a Sino-Pak agreement of 1963 to be legal ??

No matter what, Pakistan had unilaterally negotiated a part of the disputed territory with a third party without involving other stakeholders. This in itself had set a precedent.

You may consider it whatever you want. The point is that it is not in voilation of international law as this provisional agreement does not alter the dispued status of J&K.... It categorically mentions that if India gets the area after the final settlement of Kashmir dispute, then China will re-open negotiations with India to (re)define boundary. Read, comprehend and then reply.

I guess you missed the fundamental point here. Those articles can be removed only after the approval of the constituent assembly of J&K. And since it doesn't exist since 1957, the temporary Article became almost permanent.

That want I was also saying, that is the only point that will be contested in the court. And I guess the SC may very well give the center a chance to make arrangements to constitute an assembly and then proceed with the rest. Either way it will be complicated. Let's wait and see.

You are confusing Legislative Assembly with Constituent Assembly. The Constituent Assembly that had the power to recommend abrogation of 370 was dissolved in 1957 after serving its purpose. (i.e.drafting constitution and ratifying accession). Now you can not have that Constituent Assembly in J&K again. And no, it's not just the bifurcation that will be contested in the court.

So you see Very wisely and Quietly the govt corrected the mistakes that led to creation of Article 370 and then used proper timing (after securing J&K with security Forces) for The final announcement.

It was not carried out wisely and quietly ... it was predicated on fraud and use of force/threat .. and for this very reason it will be rejected by the SC (unless of course the Indian SC goes out of the way to appease Sanghis)

 

[Tom M]

Sorry, but its just your ignorance. You are as clueless on international law as you are on Kashmir Issue.

Might be. But can you please provide me a link or quote that supports your claim on the International law ???

As far as I know there is no such international law that states, the entity that manage a disputed territory can make local law for administrative purpose of the same disputed territory.

You are confusing Legislative Assembly with Constituent Assembly. The Constituent Assembly that had the power to recommend abrogation of 370 was dissolved in 1957 after serving its purpose. (i.e. drafting constitution and ratifying accession). Now you can not have that Constituent Assembly in J&K again. And no, it's not just the bifurcation that will be contested in the court.

I very well know the difference and I also know that a constituent assembly is not something that can't be constituted again. The government just have to move a bill in Parliament and pass the same. But if SC stand it's ground as earlier and stick to this constituent assembly part, the government will have no option but to constitute one. Tell me what other options do that have if SC is adamant ??

But since Article 370 is not abrogated yet it will be mainly the bifurcation which will be mostly contested. As I said, lets wait and watch.

 

[M. Sarmad]

Might be. But can you please provide me a link or quote that supports your claim on the International law ???

As far as I know there is no such international law that states, the entity that manage a disputed territory can make local law for administrative purpose of the same disputed territory.

The famous Indian lawyer and Constitution expert A G Noorani has written about it in detail.

I very well know the difference and I also know that a constituent assembly is not something that can't be constituted again. The government just have to move a bill in Parliament and pass the same. But if SC stand it's ground as earlier and stick to this constituent assembly part, the government will have no option but to constitute one. Tell me what other options do that have if SC is adamant ??

But since Article 370 is not abrogated yet it will be mainly the bifurcation which will be mostly contested. As I said, lets wait and watch.

The Constituent Assembly having the power to recommend abrogation of 370 (within the specified peiod) cannot be constituted again. You are 60 years too late. Now reconsider your position

 

[Tom M]

The famous Indian lawyer and Constitution expert A G Noorani has written about it in detail.

Thank you and I respect both your and Mr. Noorani's views on this matter. But still nowhere can I find any "International Law" that is applicable in this case as you were saying earlier. What Mr. Noorani says, pertains to the constitution of India and Indian judiciary and I guess he is 100 percent correct.

 

[Vikki]

Nothing will change...the govt would have thought out all legalities before repealing this article.

 

[M. Sarmad]

Thank you and I respect both your and Mr. Noorani's views on this matter. But still nowhere can I find any "International Law" that is applicable in this case as you were saying earlier. What Mr. Noorani says, pertains to the constitution of India and Indian judiciary and I guess he is 100 percent correct.

What do you think/believe "International Law" is? where do you think you can "find" it?