Kashmiris must Fight in the India Courts

Legal Flaws Explained in the J&K Presidential Order 2019

The amendment in Article 370 of the Indian Constitution and passing of the J&K reorganization 2019 Act has been condemned by Pakistan, Kashmiris and the rest fo 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 Bill.

Indian Constitution has been drafted in the significantly different from our constitution. The Indian constitution places stronger emphasis on a central governing body and places significant importance to its working relationships with State, territories and union. All true till the ill fated presidential order 2019 and constitutional amendment stripping J&K of “Special Status” was introduced.

So important question if the Indian constitution allows an amendment as envisaged under article 368 of the Indian constitution read with article 370, (and also read along article 169), can these amendments and subsequent legislation of J&K reorganization 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, the right to move for the protection of fundamental right of the State, and people of Jammu & Kashmir as guaranteed under Article 32 of 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 J&K along with its people have right to approach the Supreme Court of India irrespective of any constitutional amendment.

Second in light of the above point and relevant sections the J&K 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” status of the “State” to “Union” territory. This is violation of 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 Indian Supreme Court Sampat Parkash vs State of J&K 1970).

Third if the article 370, of 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 nearly 72 years? Likewise the president can modify or amend certain points not do away with it entirely.

Fourth, as rightly pointed out by many jurists, the Article 370 has a trio relationship between the Center, J&K state, 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, consultation of the State government. In this episode, the entire process has been bypassed in absence of a state representation or consultation which again should be challenged (referring to precedents such as Mohd Maqbool vsd State of J&K 1972 and Sampat Parkash vs State of J&K 1970)

Fifth, any amendment needs to be passed through Rajaya Sabaha which 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 Lah which have been brought together has been given the same status as that of Indian J&K.

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.

 

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