Kashmir High Court's decision on Art. 370

Discussion in 'Politics & Society' started by Neo, Oct 19, 2015.

  1. Neo

    Neo Senior Member Senior Member

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    Kashmir not integrated into India: Kashmir High Court's landmark decision

    Last Updated On 17 October,2015

    [​IMG]
    Indian Occupied Kashmir never integrated into India, ruled High Court of the Indian Occupied Kashmir

    LAHORE: (Dunya News) – In a landmark decision on Friday, the High Court of Indian Occupied Kashmir has ruled that Indian Occupied Kashmir was never integrated into India, reported Dunya News.

    Divisional Bench of the High Court comprising Justice Husnain Masoodi and Justice Raj Kotwal said that Kashmir maintained its sovereignty under Article 370 of the Indian constitution and Article 370 can neither be annulled nor amended.

    The court reminded in its decision that the Jammu and Kashmir Legislative Assembly did not recommend any amendment in Article 370 before its dissolution in 1957.

    Text of Article 370 of Indian constitution
    Article 370 granting special status to the state, is permanent: Jammu and Kashmir High Court

    (1) Notwithstanding anything contained in this Constitution,—

    (a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir

    (b) the power of Parliament to make laws for the said state shall be limited to—

    (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

    (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

    (c) the provisions of article 1 and of this article shall apply in relation to that State;

    (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

    Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

    Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

    (2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

    (3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

    Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

    http://dunyanews.tv/en/Pakistan/304206-Kashmir-not-integrated-into-India-Kashmir-High-Co
     
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  3. VIP

    VIP Ultra Nationalist Senior Member

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    What a misinterpretation !!!!!!!!!!!! Well, what can you expect from paki stooges.
     
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  4. Brood Father

    Brood Father Regular Member

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    Huh ..they are merely stating what is article 370 and where it is written that kashmir is not integral part of India
    And BTW , since when Lahore is part of India .
     
  5. Neo

    Neo Senior Member Senior Member

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    Home Ministry Seeks Report on Jammu and Kashmir High Court Order on 'Permanence' of Article 370

    All India | Press Trust of India | Updated: October 13, 2015



    [​IMG]
    The Article 370 of the Constitution grants a 'special status' to the state of Jammu and Kashmir.

    New Delhi: The Home Ministry today sought a report from the Jammu and Kashmir government on the state High Court's order that Article 370, which grants special status to the state, is beyond amendment, repeal or abrogation.

    In a communication, the Home Ministry sought a copy of the Jammu and Kashmir High Court order from the state government as early as possible, explaining the grounds in which the order was issued, official sources said.

    The state law department is expected to forward the copy of the High Court ruling to the central government.

    Jammu and Kashmir High Court has ruled that Article 370, has assumed place of permanence in the Constitution and the feature is beyond amendment, repeal or abrogation.


    The Court also said that Article 35A gives "protection" to existing laws in force in the State. "Article 370 though titled as 'Temporary Provision' and included in Para XXI titled 'Temporary, Transitional and Special Provisions' has assumed place of permanence in the Constitution," a division bench of justices Hasnain Masoodi and Janak Raj Kotwal ruled in a 60-page judgement.

    "It is beyond amendment, repeal or abrogation, in as much as Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal," the bench ruled. The BJP has been demanding for long repeal of Article 370.
    Story First Published: October 13, 2015 00:47 IST
     
  6. thethinker

    thethinker Senior Member Senior Member

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    These ISI trolls are stupid. This was already old news and came out in July
    .:hehe:
    All it reiterates is Article 370.


    Jammu and Kashmir's special status cannot be altered: High Court

    http://www.dnaindia.com/india/repor...l-status-cannot-be-altered-high-court-2105740

    Saturday, 18 July 2015 - 3:21pm IST | Place: Srinagar | Agency: PTI

    The High Court, while referring to law laid down by the apex court in some other cases, said "State of J&K occupies a distinct, unique and special position. Thus, in law, the State of J&K constitutes a class in itself and cannot be compared to the other states of the country. "The constitutional provisions and laws, which have been extended to the State of J&K in accordance with the mechanism and procedure prescribed by Article 370 and which constitutional provisions and laws have been made applicable to the State of J&K with modifications etc make the distinct, unique and special position of the State of J&K more clear." Citing the Constitution of India, the Court said that "Article 35(A) which has been applied to the State of J&K, clarifies the already existing constitutional and legal position and does not extend something new to state." "This provision clears the constitutional relationship between people of rest of country with people of J&K.The citizens of State of Jammu and Kashmir have their own Constitution and their sovereign character which cannot be challenged, altered or abridged," the court said.


    @tarunraju - Once again a new thread about Kashmir by Paki OP with no opinion and of no real value addition.....
     
  7. Brood Father

    Brood Father Regular Member

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    Bhai ...all these years India has maintained its position on kashmir as integral part of India , and article 370 is in place since 1957 , hc has just reciprocated the same
    To bhai ye batao kahan aisa likha hai kee kashmir is not part of India.....
    Article 370 and kashmir being not part of India is completely different matter
     
  8. Neo

    Neo Senior Member Senior Member

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    Article 370 of constitution is permanent, rules Jammu and Kashmir High Court
    Sunday, 11 October 2015 - 3:15pm IST | Place: Srinagar | Agency: PTI


    The Court also said that Article 35A gives "protection" to existing laws in force in the State. "Article 370 though titled as 'Temporary Provision' and included in Para XXI titled 'Temporary, Transitional and Special Provisions' has assumed place of permanence in the Constitution," a division bench of justices Hasnain Masoodi and Janak Raj Kotwal ruled in a 60-page judgement.

    Jammu and Kashmir High Court has ruled that Article 370, granting special status to the state, has assumed place of permanence in the Constitution and the feature is beyond amendment, repeal or abrogation.

    The Court also said that Article 35A gives "protection" to existing laws in force in the State. "Article 370 though titled as 'Temporary Provision' and included in Para XXI titled 'Temporary, Transitional and Special Provisions' has assumed place of permanence in the Constitution," a division bench of justices Hasnain Masoodi and Janak Raj Kotwal ruled in a 60-page judgement. "It is beyond amendment, repeal or abrogation, in as much as Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal," the bench added.

    The Court also observed that the President under Article 370 (1) is conferred with power to extend any provision of the Constitution to the State with such "exceptions and modifications" as may be deemed fit subject to consultation or concurrence with the State Government. "And such power would include one to amend or alter the provision to be applied, delete or omit part of it, or make additions to the provisions proposed to be applied to the State. Such power would extend even in case of provisions of the Constitution already applied," the court said.

    In the circumstances, the court said, additions made to the existing Constitutional provisions through various Constitution (Application to Jammu and Kashmir) orders on their application to the State like Proviso to Clause (2) Article 368, fall within four corners of Article 370(1). The Court said Jammu and Kashmir, while acceding to Dominion of India, retained limited sovereignty and did not merge with Dominion of India, like other Princely States.
    "State continues to enjoy special status to the extent of limited sovereignty retained by it.

    "The limited sovereignty or special status stands guaranteed under Article 370 the only provision of the Constitution that applied to the State on its own. The only other Constitutional provision made applicable by Article 370 of the Constitution to the State is Article 1. "No other provision of the Constitution as provided under Article 370 (1), would be applicable to the State except, by Presidential order in consultation with the State in case the provision is akin to subjects delineated in Instrument of Accession and with concurrence of the State, in case it does not fall within ambit of Instrument of Accession," the court said.

    The Constitutional framework worked out by Dominion of India and the State reflected in Article 370 has its roots in paras 4 and 7 of Instrument of Accession, the court said. In terms of Article 370, the court said Parliament's legislative power over the State is primarily confined to three subjects mentioned in the Instruments of accession -- Defence, Foreign Affairs and Communications.

    "The President, however, has power to extend to the State other provisions of the Constitution as also other laws that relate to the subjects specified in the Instrument of Accession. While extending such provisions and laws, the exercise of the power involves consultation with the State Government," it said.

    The court said the Constituent Assembly in terms of proviso to Clause (3) Article 370 is conferred with power to recommend to the President that Article 370 be declared to cease to be operative or operate only with the exceptions and modifications mentioned in the recommendation, if any so made.

    The court pointed out that it is only on such recommendations that the President in terms of Clause (3) Article 370 of the Constitution may, by public notification, declare that Article 370 shall cease to be operative or shall be operative only with such exceptions and modifications and from such date, specified in the notification. "The Constituent Assembly did not make such a recommendation before its dissolution on January 25th, 1957," it said.

    "Resultantly, Article 370, notwithstanding its title showing it a 'temporary provision' is a permanent provision of the Constitution. It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available," it said adding, "furthermore, Article 368 cannot be pressed into service in this regard, inasmuch as it does not control Article 370 - a self contained provision of the Constitution".

    To suit autonomy granted to the State, the court said, provisions like Article 35A and proviso to Article 253 and proviso to Clause 2 Article 368 have been added to the provisions of Constitution, as applied to the State.

    "The Article 35A gives protection to existing laws in force in the State and to any law enacted after 1954 by the State legislature," it added

    http://www.dnaindia.com/india/repor...nt-rules-jammu-and-kashmir-high-court-2133687
     
  9. jackprince

    jackprince Turning into a frog Senior Member

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    Boyo, J&K high court is never the last word on constitution. SC is there, and yeah, a majority in both house of parliament can do that anytime. Also, if Center just puts a plug on the subsidy, the Kashmiris will cry uncle and will themselves ask for repealing 370. We only need a majority in both houses to do away with Article 370.

    May be you should learn, and so should the judge, that every part of our constituion can be amended with majority in parliament. There's nothing permanent, and the framework of the constitution has been kept thus only because the original maker of constitutions knew that with changing times, constitutional provisos may be needed to be changed, too. If 'Preamble' to the constitution can be changed, anything can be changed.

    May be new amendment will de-recognise state of Jammu & Kashmir, and make two seperate states out of them, and effectively voiding Art.370? Or make Jammu a UT.
     
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  10. Kshatriya87

    Kshatriya87 Senior Member Senior Member

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    Illiterate pakis. Padhna toh seekh lo bakwaas karne se pehle.
     
  11. jackprince

    jackprince Turning into a frog Senior Member

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    @Neo

    For education purpose....

    https://en.wikipedia.org/wiki/Amendment_of_the_Constitution_of_India

    http://indiankanoon.org/doc/594125/

    Article 368 in The Constitution Of India 1949
    368. Power of Parliament to amend the Constitution and procedure therefor
    (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article
    (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in
    (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
    (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
    (c) any of the Lists in the Seventh Schedule, or
    (d) the representation of States in Parliament, or
    (e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent
    (3) Nothing in Article 13 shall apply to any amendment made under this article
    (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground
    (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article


    comprendo?
     
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  12. thethinker

    thethinker Senior Member Senior Member

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    The genocide which mainstream media has no outrage over but will happily side with Pakis on Aman Ki Asha and against AFSPA:

    Link

    Srinagar, January 4, 1990.
    Aftab, a local Urdu newspaper, publishes a press release issued by Hizb-ul Mujahideen, set up by the Jamaat-e-Islami in 1989 to wage jihad for Jammu and Kashmir's secession from India and accession to Pakistan, asking all Hindus to pack up and leave. Another local paper, Al Safa, repeats this expulsion order.

    In the following days, there is near chaos in the Kashmir valley with chief minister Farooq Abdullah and his National Conference government abdicating all responsibilities of the state. Masked men run amok, waving Kalashnikovs, shooting to kill and shouting anti-India slogans.

    Reports of killing of Hindus, invariably Kashmiri Pandits, begin to trickle in; there are explosions; inflammatory speeches are made from the pulpits of mosques, using public address systems meant for calling the faithful to prayers. A terrifying fear psychosis begins to take grip of Kashmiri Pandits.

    Walls are plastered with posters and handbills, summarily ordering all Kashmiris to strictly follow the Islamic dress code, prohibiting the sale and consumption of alcoholic drinks and imposing a ban on video parlours and cinemas. The masked men with Kalashnikovs force people to re-set their watches and clocks to Pakistan Standard Time.

    Shops, business establishments and homes of Kashmiri Pandits, the original inhabitants of the Kashmir valley with a recorded cultural and civilisational history dating back 5,000 years, are marked out. Notices are pasted on doors of Pandit houses, peremptorily asking the occupants to leave Kashmir within 24 hours or face death and worse. Some are more lucid: "Be one with us, run, or die!"

    Srinagar, January 19, 1990. …. Curfew is imposed as a first measure to restore some semblance of law and order. But it fails to have a deterrent effect.

    Throughout the day, Jammu and Kashmir Liberation Front and Hizbul Mujahideen terrorists use public address systems at mosques to exhort people to defy curfew and take to the streets. Masked men, firing from their Kalashnikovs, march up and down, terrorising cowering Pandits who, by then, have locked themselves in their homes.

    As evening falls, the exhortations become louder and shriller. Three taped slogans are repeatedly played the whole night from mosques: "Kashmir mei agar rehna hai, Allah-O-Akbar kehna hai" (If you want to stay in Kashmir, you have to say Allah-O-Akbar); "Yahan kya chalega, Nizam-e-Mustafa" (What do we want here? Rule of Shariah); "Asi gachchi Pakistan, Batao roas te Batanev san" (We want Pakistan along with Hindu women but without their men).

    In the preceding months, 300 Hindu men and women, nearly all of them Kashmiri Pandits, had been slaughtered ever since the brutal murder of Pandit Tika Lal Taploo, noted lawyer and BJP national executive member, by the JKLF in Srinagar on September 14, 1989. Soon after that, Justice N K Ganju of the Srinagar high court was shot dead. Pandit Sarwanand Premi, 80-year-old poet, and his son were kidnapped, tortured, their eyes gouged out, and hanged to death. A Kashmiri Pandit nurse working at the Soura Medical College Hospital in Srinagar was gang-raped and then beaten to death. Another woman was abducted, raped and sliced into bits and pieces at a sawmill.

    In villages and towns across the Kashmir valley, terrorist hit lists have been floating about. All the names are of Kashmiri Pandits. With no government worth its name, the administration having collapsed and disappeared, the police nowhere to be seen, despondency sets in. As the night of January 19, 1990, wears itself out, despondency gives way to desperation.

    And tens of thousands of Kashmiri Pandits across the valley take a painful decision: to flee their homeland to save their lives from rabid jihadis.
     
  13. I_PLAY_BAD

    I_PLAY_BAD Regular Member

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    What a stupid thread.
    Are you nuts?
    Jammu and Kashmir's high court has done its duty. It has upheld the state's constitution.
    Even Tamil Nadu high court will do that. Does that mean Central Government has no powers in Tamil Nadu ?
    They can easily dissolve the state government if they want. Same is the case with Jammu & Kashmir.
    If Government of India wants article 370 to be scrapped it will surely do it after all Jammu and Kashmir is just another state of India.
     

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