Logical flaws in the Article 370

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a central government (in blatant violation of the Instrument of Accession (or Indian Constitution) cannot arbitrarily “downgrade” the status of the “State” to “Union Territory”. This is a violation of the fundamental right of the state and its people. This act, without justification of any legal, economic or political grounds, alone attracts violation of the constitutional rights and invites judicial review of the Supreme Court

A number of grounds exists to highest legal challenge

The amendment in Article 370 of the Indian Constitution and passing of the JAMMU AND KASHMIR Reorganisation 2019 Act has been condemned by Pakistan, Kashmiris and the rest of the world for being unjust and illegal. Can the law mentioned above be challenged in the Supreme Court of India, the highest legal forum? Will it be challenged and if so what would be the possible grounds for challenging the controversial Act.

The Indian Constitution has been drafted in a significantly different from our Constitution. The Indian Constitution places stronger emphasis on a central governing body and gives significance to, and places importance on, its working relationships with State, territories and union. All true till the ill-fated presidential order 2019 and constitutional amendment stripping Jammu and Kashmir of “special status” was introduced.

So the important question is whether the Indian Constitution allows an amendment as envisaged under Article 368 of the Indian Constitution read with Article 370, (and also read along with Article 169), and can these amendments and subsequent legislation of J&K Reorganisation Bill 2019 be challenged in the Supreme court of India for reversing the said laws? The below are proposed grounds to challenge the said laws.

First ground of challenge, is the right to move for the protection of the fundamental rights of the State, and the people of Jammu and Kashmir as guaranteed under Article 32 of the Indian Constitution. This is the foremost duty of the Indian Supreme Court. According to State of West Bengal vs Honorable Speaker (2007), it was held “no fundamental right is contravened or abridged by any statutory or constitutional provision”. This establishes that the State of Jammu and Kashmir, along with its people, has the right to approach the Supreme Court of India, irrespective of any constitutional amendment.

A central government (in blatant violation of the Instrument of Accession (or Indian Constitution) cannot arbitrarily “downgrade” the status of the “State” to “Union Territory”. This is a violation of the fundamental right of the state and its people. This act, without justification of any legal, economic or political grounds, alone attracts violation of the constitutional rights and invites judicial review of the Supreme Court

Second, in light of the above point and relevant sections the Jammu and Kashmir constitution (allegedly, as author reserves the right to disagree with any Indian laws), a central government (in blatant violation of the Instrument of Accession (or Indian Constitution) cannot arbitrarily “downgrade” the status of the “State” to “Union Territory”. This is a violation of the fundamental right of the state and its people. This act, without justification of any legal, economic or political grounds, alone attracts violation of the constitutional rights and invites judicial review of the Supreme Court. The President has only powers to amend or modify, not do away with it (as suggested by the Indian Supreme Court in Sampat Prakash vs State of J&K 1970).

Third, if Article 370, or the act or “status of State” of instrument of accession was not acceptable then why was it allowed to be part of the Indian Constitution for unexplainable years? Likewise, the President can modify or amend certain points, but not do away with it entirely.

Fourth, as rightly pointed out by many jurists, Article 370 has created a trio relationship between the Centre, Jammu and Kashmir State, and the President of India, with the Indian President given powers to define the constitutional relationship or the instrument of accession only and only with the consent and consultation of the State government. In this episode, the entire process has been bypassed in the absence of a state representation or consultation which again should be challenged (referring to precedents such as Mohd Maqbool vs State of J&K 1972 and Sampat Prakash vs State of J&K 1970)

Fifth, any amendment needs to be passed through the Rajya Sabha, and such passage is still going to be ultra vires or unconstitutional, unless it involves that the State without assigning any proxy for it.

Sixth, another ground of challenge may be the fact the population of Ladakh, Kargil and Leh, which have been brought together, have been given the same status as that of Indian Jammu And Kashmir. This vague, unexplainable discrimination and violation of unbreakable accords too will be strong grounds in the Indian Supreme Court petition challenging the presidential order and constitutional amendment.

 

BY HASSAN YOUSAF SHAH

(DAILY PAKISTAN AUTHOR)

The writer is an independent professional who has worked for different multinational and multilateral organisations including the Asian Development Bank. He has been contributing on economics, finance, and regional foreign policy since 1997 for different newspapers. You can follow him on twitter @ hyshah1

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