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

Law is actually who we interpret it. As long as the status of the dispute is intact, the guarantee that the a bilateral settlement will resolve the issue as per UNSC suggestions and Simla agreement, I don't see any violation of "International Law". But yes, I do see a domestic law being violated, which is being challenged in Indian SC as we speak.

So, according to you, India has unilaterally altered the situation and fully integrated Kashmir without the consent of other parties involved (i.e Pakistan, Kashmiris or the UN) but it hasn't violated the International law/treaties which stipulated that bilateral India-Pak dialogue and the will of Kashmiris would decide the accession of Kashmir to India or Pakistan, and that no side would try to alter the situation unilaterally???!! ... Sorry bro, but that's hopelessly twisted logic



And FYI, neither Pakistan or Indian governments ever took the stand that they refuse to accept UNSC resolution (sorry it's not a decision, anything under Charter VI is more like a recommendation. UN doesn't have any means to enforce it), rather we have always agreed to solve issues through bilateral dialogues. :-)

So, according to you, India does not refuse to accept the UNSC resolutions but at the same time it categorically refuses to give the right to self-determination to Kashmiri people granted by those UNSC resolutions!! you do not make any sense, bro ...

As for Chapter VI, read and try to understand this:
https://defence.pk/pdf/threads/saud...-occupied-kashmir.621628/page-7#post-11519656
 
So, according to you, India has unilaterally altered the situation and fully integrated Kashmir without the consent of other parties involved (i.e Pakistan, Kashmiris or the UN) but it hasn't violated the International law/treaties which stipulated that bilateral India-Pak dialogue and the will of Kashmiris would decide the accession of Kashmir to India or Pakistan, and that no side would try to alter the situation unilaterally???!! ... Sorry bro, but that's hopelessly twisted logic

Let me ask you something. Article 370 and 35A were neither the precondition of the instrument of accession nor were present on any document related to J&K back in 1947, where they?

Moreover India or the state of J&K(especially the constituent assembly) never asked for the recommendations or participation of anyone else including Pakistan before drafting that (if I'm not wrong). Regarding changing the situation unilaterally, I'm sorry to say that Pakistan dont have the moral right to blame India about trying to change the situation unilaterally since Pakistan themself have tried it via military misadventure in the past. Don't forget 1965, while using the term unilateral.

So, according to you, India does not refuse to accept the UNSC resolutions but at the same time it categorically refuses to give the right to self-determination to Kashmiri people granted by those UNSC resolutions!! you do not make any sense, bro ...

As for Chapter VI, read and try to understand this:
https://defence.pk/pdf/threads/saud...-occupied-kashmir.621628/page-7#post-11519656

Then tell me simply in a word or two. Why does the UN, UNSC especially P-5 fail to enforce the same??
 
Let me ask you something. Article 370 and 35A were neither the precondition of the instrument of accession nor were present on any document related to J&K back in 1947, where they?

Moreover India or the state of J&K(especially the constituent assembly) never asked for the recommendations or participation of anyone else including Pakistan before drafting that (if I'm not wrong). Regarding changing the situation unilaterally, I'm sorry to say that Pakistan dont have the moral right to blame India about trying to change the situation unilaterally since Pakistan themself have tried it via military misadventure in the past. Don't forget 1965, while using the term unilateral.

That's another debate not related to the topic.

As far as International Law is concerned, the setting up of the Constutuent Assembly itself was a violation of the UN Resolution 91 of 30, March 1951 which stated that :Affirming that the convening of a Constituent Assembly as recommended by the General Council of the "All Jammu and Kashmir National Conference" and any action that Assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the above principle.

So, it's not the abrogation of Article 370 (which wasn't recognized by the UN and Pakistan anyway) itself that constitutes the violation of International Law but the fact that India has tried to change/abrogate the (special) status of J&K that it was entitled to under the Instrument of Accession (the only document recognized by the UN as provisionally valid, subject to ratification by the people of J&K) is what constitutes the violation of International law. Hope that helps clear up your confusion

Then tell me simply in a word or two. Why does the UN, UNSC especially P-5 fail to enforce the same??

It was Russia that used veto in the UNSC to thwart the possibility of any direct UN intervention
 
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.
 
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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' '?

Despite the fact that GB (arguably) has a different legal status compared to J&K and that the GB Legislative Assembly has passed unanimous resolutions demanding the federal government to declare the region as a constitutional province of Pakistan, the Government of Pakistan has not merged GB with Pakistan because such a merger would have given Delhi an excuse/rationalization to merge IOK.

Contrary to the popular belief, Pakistan has never formally abolished the State Subject Rule (SSR) in GB. In 1974, the government of ZAB announced administrative and judicial reforms by abolishing the State of Hunza, Rajgiri & Jagirdari System and Frontier Crime Regulation (FCR) only. The Rajas (rulers) of abolished States were given government jobs and maintenance allowances.
 
Despite the fact that GB (arguably) has a different legal status compared to J&K and that the GB Legislative Assembly has passed unanimous resolutions demanding the federal government to declare the region as a constitutional province of Pakistan, the Government of Pakistan has not merged GB with Pakistan because such a merger would have given Delhi an excuse/rationalization to merge IOK.

Contrary to the popular belief, Pakistan has never formally abolished the State Subject Rule (SSR) in GB. In 1974, the government of ZAB announced administrative and judicial reforms by abolishing the State of Hunza, Rajgiri & Jagirdari System and Frontier Crime Regulation (FCR) only. The Rajas (rulers) of abolished States were given government jobs and maintenance allowances.

Interesting. Noted.

Did you have an opportunity to go through the detailed exposition of the subject by one of our colleagues on this forum?
 
Plan A didn't work. So, now Hindu Baniya is working on Plan B for returning to original form. We are leaning our enemy for 70 years, We know very well all his Paleet Shahazez in his yellow brain (of course cow Mutar make his brain yellow)
 

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