Yes, this move is unconstitutional, and illegal under Indian as well as international law.
@Joe Shearer Sir, will the government pressure/public opinion influence the final judgement of the Indian Supreme Court on this matter? your opinion
It cannot. Legally the position is clear; there is nothing to it.
HOWEVER, the way this faction has been behaving in the past, they will try to pack the court; this is a medium-term project, and cannot affect the immediate outcome, UNLESS the court decides that reversing a fait accompli is a futile legalism.
The depressing thing is that the favourite legal tactic of the party in power is a truck ramming a car.
Firstly International Law is not applicable on India's internal affairs just like Pakistan or any other country. Secondly, it is neither illegal on Unconstitutional.
Article 370 and 35A both are privileges rather incentives provided by the constitution of India via a presidential order back then and the Parliament is well withing the rights as per the same constitution to revoke it.
Now the only confusion that remain is regarding the bifurcation of the state. And that is also clearly defined under
Article-3 of Constitution of India. To put it simple, the Article states that "The Center can bifurcate any state after seeking the suggestion of the constituent assembly aka the state legislature assembly, it doesn't even require the consent of the state(s) whatsoever.
In this case, since the J&K state is under Presidential rule, the Government has presumed the Governors opinion as constituent assemblies opinion and went ahead with the proposal of bifurcation. How well the SC will take that presumption ?? I guess we will have to wait and see.
But I think the SC will ask GOI to conduct a general election, and seek the suggestion of the constituent assembly rejecting the Governors opinion.
That said,
in my personal opinion more than the merit and demerits of what was done, the way with which it was done is highly
condemnable.
@Joe Shearer What's your take on this buddy ??
A very fair summation, except for my mild objection - a mild objection - to your dismissing the overarching content of 35A and 370, when you say, correctly, that these were brought in by Presidential Ordinance.
First, Art. 35A merely allows the state legislature to define 'permanent resident'. How does this bother so many Sanghis? That statute by itself is merely a legal and statutory Wren & Martin object; it is a formality. What is germane is the provision under the Ranbir Code that defines that only 'permanent residents' may own immovable property. Removing Art. 35A does not affect that situation; those seeking access to Kashmiri property have to go one step further, and open up ownership to other than permanent residents.
What is enfuriating is that Himachal Pradesh, Uttarakhand, Sikkim, Arunachal Pradesh, Nagaland, Mizoram and Meghalaya do not allow 'outsiders' to own property in the state concerned. Stomach-turning hypocrisy.
As for Art. 370, this is an abortion of a bill that should never have survived. However, HAVING survived, it is a slap in the face of every constitutionalist to remove it the way it was removed. Long live legislation by truck accident.
Lol what a joke.....They'll be rubbing stamping it.
A jibe uncalled for.
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.
You may be right in essence. However, such a territory does not remain in a vacuum. Pending a settlement, life has to go on.
A second matter does arouse curiousity. Does the amalgamation of Gilgit and Baltistan into Pakistan have no bearing on the Pakistani reaction? Or is it a case of 'Tera kutta, 'kutta', mera kutta, 'Tommy' '?
That's possible. But what makes you believe that the SC will go against it's earlier decision?
A larger bench can over-rule the ruling of a smaller bench. However, the law is clear; Art. 370 could not be abolished.
@Tom M
I find that using Art. 370 to modify Art. 370, and allowing the modified Article to remain on the books, was more subtle than I had believed of this government.
