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

[Norwegian]

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 The 2019 notification superseded the 1954 Order and declared that “all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and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.

 

[khansaheeb]

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.

Just a show, to the Kashmiris it makes no difference whether the writ is upheld or not.

 

[Clutch]

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.

I would not hold my breath in the legal challenge. India has long moved away from attempting to be a civil balanced society (if it ever was one is also a good point).

This is all drama. The legal system of india is scared of the hindutva extremists who govern the nation. The drama us good for Western consumption.

 

[Norwegian]

Just a show, to the Kashmiris it makes no difference whether the writ is upheld or not.

I would hold my breath in the legal challenge. India has long moved away from attempting to be a civil balanced society (if it ever was one is also a good point).
This is all drama. The legal system of india is scared of the hindutva extremists who govern the nation. The drama us good for Western consumption.

Supreme Court and High Court has previously ruled against amending anything related to article 370.

 

[Mrc]

Truck ki batti

 

[Clutch]

Supreme Court and High Court has previously ruled against amending anything related to article 370.

Sorry I meant "I would not hold my breath..."

... My argument is that todays India is not what it was yesterday. Todays India is the true face of India. Yesterdays Yes just an illusion of secularism and plurality.

Even the Indian Supreme Court is beholden to Hindutva ideology either through their own conviction or through fear. This is the India M.A. Jinnah foretold about where the Hindu and Muslim can never coexist since they both have two very different hearts with no chances of convergence.

 

[Norwegian]

Even the Indian Supreme Court is beholden to Hindutva ideology

Not so sure about that.

 

[M. Sarmad]

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

 

[TechMan]

Judgment will be given after 20 years.

 

[AUz]

Does not matter. SC could decide this within a month, but it won't. Even if SC decades against Modi's move (chances of which are not even 1%), BJP will overide SC in parliament or bring a new, more 'modified' version in parliament and pass it.

Even indian highcourt gave decision in 2015 that article 370 can not be removed without Kashmir assembly's approval---so there is established legal precedent as well. But who cares about law in a fascistic state?

Read the judgment below for yourselves

https://timesofindia.indiatimes.com/india/Article-370-is-permanent-JK-HC/articleshow/49310089.cms

 

[Clutch]

Not so sure about that.

Supreme Court revisits 21-year-old verdict on Hindutva ahead of crucial elections
In 1995, the apex court had defined Hindutva as 'a way of life', which gave the BJP and the Shiv Sena considerable legal ground to justify their ultra-nationalist politics.

https://www.indiatoday.in/india/sto...va-interpretation-elections-346972-2016-10-17

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

The indian law of today is extremist Hindutva ideology of rape and plunder.... It is a regressive state.

 

[Tom M]

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

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 ??

 

[M. Sarmad]

Firstly International Law is not applicable on India's internal affairs just like Pakistan or any other country.

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

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.

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

 

[Assange]

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....

 

[batmannow]

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 Thts a joke tht any stupid judge will take his life and his family life into danger just to please some jokers who thinks tht anyone has more power then modi in India?