I don't know what point
@RISING SUN was trying to make. There isn't any logic in it. I applaud your point #10; it sums up the whole issue. Your points #5 and #6 are a treat to read; I don't know yet who you are but am already a fan. I disagree, however, with #7. This is why.
If you read the terms of #370 carefully, it mentions that the President may abrogate this article, with the consent of the Constituent Assembly of Jammu and Kashmir. That Constituent Assembly was sui generis, unique of its kind, drawing its legality and power from the sovereign authority of the Maharaja, which was untramelled then except for his cession of the power to conduct defence, foreign affairs and communications to the Dominion of India, which is something that you have articulated very well several times. So it could not pass on its own powers to any other body, certainly not its own constitution-making or constitution-amending or constitution-ratifying powers. It could only frame a constitution, for acceptable by the Maharaja as the sovereign, which it did. It then took what Noorani describes as the 'quaint' step of dismissing itself, rather than the usual practice of adjourning sine die.
This means that without the Maharaja's invocation of such an assembly, it can never be reconvened.
The Maharaja accepted the Constitution of J&K in 1958. With that, he effectively extinguished his own sovereign powers and to the extent of the Constitution and its powers, that became the repository of the sovereignty other than the three ceded to the Union of India.
You have said that the Assembly might be a body that might agree to address #370. I am not so sure. It is not the Constituent Assembly, and the Indian Constitutional provision DID NOT mention any successor body. It is as if you are featured in a legal document, and the wording says, "hellfire", rather than "hellfire, which term shall include his heirs and assigns". That limited wording excludes your heirs and assigns. Similarly the limited wording of the Indian Article excludes any body other than the original Constituent Assembly of J&K from recommending abrogation. It can never be done.
Sir.
At the outset, thank you for your kind words, and indeed your guidance in pointing me in directions wherein I have been striving to improve my knowledge about issues across spectrum. May I declare that at no point have you put me in a direction wherein a particular view has been emphasised or debunked by your guidance, instead your subtle directions and hints and indeed reference to sources from across the border too, have allowed me to explore options on my own without ever an incident where you have tried to influence my perception or understanding? For that, sir, I am indebted to you.
Like I explained to
@WAJsal who tagged you in the thread "whatever" quoting my post specifically point #2 and expressed grave symptoms of suffering from Ebola and Cancer at the same time ( to which I have suggested a short course of Imatinib for cancer
), the role of
"Devil's advocate" is something that is of value for a discourse wherein a number of viewpoints need to be converged over a period of time. That is something that I am trying - hence at times discrepancy with my own statements with apparent self-contridiction. A critical analysis of alternate is always something that I am willing to listen to or try and 'fiddle' with till it is resolved for me either ways. Please do look at the said point in the context of same as I am still trying to determine and understand the various provisions under Constitution of India as also the statements of the distinguished members of J&K Constituent Assembly which may or may not allow for abrogation of Article 370.
However, I stand by what I said, that the Article itself is a sacred undertaking of the Union of India to the state of Jammu and Kashmir and its people, and its abrogation can only be undertaken after due consideration of the views of the people themselves.
Coming back, I was trying to see where this particular statement of Sheikh Abdullah may fit in with the above bold and underlined portion as aptly highlighted by you about the legality and power of the Constituent Assembly being from the Maharaja
"You are no doubt aware of the scope of our present constitutional-ties with India. We are proud to have our bonds with India. The goodwill of whose people and Government is available to us in unstinted and abundant measure. The constitution of India has provided for a federal union and in the distribution of sovereign powers has treated us differently from other constitutional units with the exception of the items grouped under defense, foreign affairs and communication in the instrument of accession, we have complete freedom to frame our constitution in the manner we like. In order to live and prosper as good partners in a common endeavor for the advancement of our peoples. I would advise that, while safeguarding our autonomy to the fullest extent so as to enable us to have the liberty to bind our country according to the best traditions and genius of our people, we may also by suitable constitutional arrangements with the union establish our right to seek and compel federal co-operation and assistance in this great task, as well as our fullest co-operation and assistance to the union."
and one more statement (so far)
In consonance with these principles, and in supreme fulfillment of the people’s aspirations, it follows that a Constitutional Head of the State will have to be chosen to exercise the functions, which this Assembly may choose to entrust to him.
Sofar as my party is concerned we are convinced that the institution of monarchy is incompatible with the spirit and needs of modern times which demand an egalitarian relationship between one citizen and an other. The supreme test of a democracy is the measure of equality of opportunity that it affords to its citizens to raise to the highest point of authority and position. In consequence, monarchies are fast disappearing from the world’s picture, as something in the nature of feudal anachronism. In India, too, where before the partition, six hundred and odd princes exercised rights and privileges of ruler- ship, the process of democratization has been taken up and at present hardly ten of them exercise the limited authority of constitutional heads of State.
After the attainment of complete power by the people, it would have been an appropriate gesture of good will to recognize Maharaja Hari Singh as the first Constitutional Head of the State. But I must say with regret that he has completely forfeited the confidence of every section of the people. His incapacity to adjust himself to changed conditions and his antiquated views on vital problems constitute positive disqualification for him to hold the high office of a democracy Head of the State, Moreover, his past actions as a ruler have proved that he is not capable of conducting himself with dignity, responsibility and impartiality. The people still remember in with pain and regret this failure to stand by them in times of crisis, and his incapacity to afford protection to a section of his people in Jammu.
I quote the speech of Sheikh Abdullah in the Constituent Assembly as found on this site (have not read the manuscript in full yet)
http://jklegislativeassembly.nic.in/debates/debate Part I.pdf
I confess that as of this day, I am still reading up and will need time (since I earlier indicated am pre-occupied till 30 Sep 16 with affairs of utmost importance
)
Also as a member @adil_minhas above has rightly pointed out, the Article 370 is under ambit of Article 368 (something which I had been trying to reconcile for past few days before postponement of the same for a latter date keeping in view my requirement of concentrating my efforts elsewhere in the near future) and I am yet looking for any clause wherein there is absolute safeguarding of Article 370 from the said act.
Other than the moral obligation and the apparent advantages of continuing the said Article granting autonomy in ensuring long term peace and justice for people within the framework and union of India, I am not able to find anything to refute the said member's pointing out the fact, yet.
As for who I am ... I told you I am someone who has no opinion generally. Especially on anything to do with forging a nation, if someone says Baluchistan is illegally occupied or that there is a great tragedy in NWFP or J&K and Junagadh or Hyderabad is illegal - my opinion is ".... great work the founding fathers of both nations, you did what was needed to forge a nation". In short, just open to all opinions that make sense with facts aplenty. Actually am apolitical and an atheist!
It would require you to post a historical source from neutral stance, since the burden of proof lies on you, as you have made that claim
Actually no. All under provisions of Indian Independence Act of 1947. Anything claimed to contrary, can be extrapolated to Pakistan as a nation and of accession of various principalities to it. May I say, however, that personally, everyone did what was needed to forge a nation and anyone who has a problem with anything of it, can lump it!!!!
History is replete with examples of such an act from US to Germany to USSR to East Timor.
You can use the logic in Kashmir also, but may I request you not to do that as its a tireless and never ending cycle ... winners will probably be decided long after your and I cease to bother about it ....
