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Article 370 issue:Larger bench only if conflict in earlier verdicts: SC

Press Trust of India

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New Delhi, Jan 22: The Supreme Court Wednesday said it will refer the Article 370 issue to a larger 7-judge Constitution bench only if satisfied that there is a direct conflict in two earlier verdicts of the apex court which dealt with the matter.

Unless the petitioners are able to show a direct conflict between the two judgments — Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat Prakash versus Jammu and Kashmir in 1970 — which dealt with the issue of Article 370, it is not going to refer the matter to a larger bench, the top court said.

Both the verdicts were given by 5-judge benches.

 

Hearing the point of reference on Wednesday, a 5-judge Constitution bench, headed by Justices N V Ramana, was told by Jammu and Kashmir Bar Association that the Centre’s August 5 move last year to abrogate Article 370 was illegal and needed to be read down.

The bench, also comprising Justices Sanjay Kishan Kaul, R Subhash Reddy, B R Gavai and Surya Kant, said: “You have to show us that there was direct conflict in two verdicts of apex court. Only then we will refer it to larger bench. You have to show us that there was direct conflict.”

Senior Advocate Zafar Ahmed Shah, appearing for the lawyers’ body said the Constitution of India and that of Jammu and Kashmir are parallel to each other and Article 370 was continuing.

He said that Sampat Prakash judgment of the apex court had specifically stated that in light of the continuance of the circumstances, Article 370 has to stay.

Shah said both the constitutions have been working hand in hand and sub clause (2) of Article 370 was there so that there is no conflict between them.

He said that in Jammu and Kashmir there was only Instrument of Accession and no standstill agreement or merger arguments.

“If any law had to be made in Jammu and Kashmir, it could only be done in consultation or concurrence with the state. Article 370 provided for concurrence and consultation. Doing away with Article 370, you have snapped ties with the state,” Shah said.

He sought reference of the issue to a larger bench of seven judges.

Senior advocate Sanjay Parikh, appearing for the NGO, People’s Union for Civil Liberties (PUCL), also sought reference to a larger constitution bench of seven-judges.

The bench asked both Shah and Parikh to furnish by Thursday their submissions with regard to reference of the issue in view of the direct conflict between two verdicts of apex court.

The hearing remained inconclusive and would continue on Thursday.

The top court was on Tuesday told by senior advocate Dinesh Dwivedi that Article 370 of the Constitution was the only “tunnel of light” which maintained the relationship between the Centre and the erstwhile state of Jammu and Kashmir.

Petitioners challenging the Centre’s decision taken on August 5 last year to abrogate provisions of Article 370 contended that the Constitution of Jammu and Kashmir cannot be repealed in exercise of powers under the Article, which gave special status to erstwhile state.

Dwivedi, appearing for an intervenor, Prem Shankar Jha, had said that the issue needs to be referred to a larger bench as there is a dispute between two judgments of a five-judge bench which dealt with provisions of Article 370.

The top court had said that before going into the matter it would first hear the submissions on reference.

Dealing with the Presidential orders of August 5, last year, Dwivedi had said due to these orders issued under Article 370 (1) and (3), all provisions of the Indian Constitution have been applied to Jammu and Kashmir.

He said the Constitution of Jammu and Kashmir was not created under the Constitution of India or Article 370 and therefore J&K constitution cannot be repealed in exercise of powers under Article 370.

Earlier, senior advocate Raju Ramachandaran, appearing for bureaucrat-turned-politician Shah Faesal, Shehla Rashid and other petitioners, had argued that in the scheme of Article 370 while the democratic power is with the State, the executive power is with the Union government.

The top court had earlier raised a query as to who could be the competent authority to reconstitute the Jammu and Kashmir Constituent Assembly to take a call on altering the special status of the erstwhile state under Article 370 of the Constitution.

The petitioners have referred to the provision and said that only the Constituent Assembly, which represents the will of the people, is empowered to make recommendation to the President on any changes in the special status of J&K.

A number of petitions have been filed in the matter including those of private individuals, lawyers, activists and political parties and they have also challenged the Jammu and Kashmir Reorganisation Act, 2019, which splits J&K into two union territories — Jammu and Kashmir, and Ladakh.


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Bukhari’s ‘Apni Party’ constitution in making

Firdous Hassan

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Srinagar, Feb 23: Former minister Altaf Bukhari and his team are in the process of framing the constitution of ‘Apni Party’, the third front being formed to kick-start the stalled political process in Kashmir, courtesy Centre’s detention of major political players.

 “The draft constitution has entered its final stage and is awaiting approval. We will declare our party anytime as all the formalities have been completed,” Bukhari said in an exclusive chat with The Kashmir Monitor.

‘Apni Party’ is meant to work as a third front to resume political activities in Kashmir at a time when three former CMs and other major political leaders are facing PSAs and detention since August when J&K simultaneously lost its statehood and special status.

 

Bukhari, a former PDP Minister, has been busy lately in garnering support of those political leaders, who managed to remain free, possibly in lieu of their silence.

On Saturday, Bukhari met BJP National General Secretary, Ram Madhav in Gulmarg, who, interestingly, a day after said that he wants the situation in Jammu and Kashmir to become conducive for normal political activity to resume.

Meanwhile, on Sunday, senior Congress leader and former MLA Bandipora Usman Majeed resigned from the party to join hands with Bukhari.

Besides Usman, Bukhari’s team, so far, includes former MLA Ghulam Hassan Mir, and former PDP leaders Dilwar Mir, Javaid Beigh, Noor Muhammad Shiekh, Rafi Ahmad Mir, Abdul Majeed Paddar, and Abdul Raheem Rather.

The buzz of a ‘third front’ was further confirmed when in January these former MLAs met Lieutenant Governor Girish Chandra Murmu and envoys of 15 countries during the latter’s visit to Kashmir.

Bukhari said his party will differentiate itself from the mainstream parties through its “agenda of working to solve the issues of people”.

“After August 5, people lost their hopes as economy, development took a back seat. Our party will raise issues like providing domicile rights over land and jobs, releasing of political leadership from detention, protecting J&K Bank’s autonomy,” he said.

“We are not hereditary politicians but common people. Apni Party is a party run by common people for common people. When we thought of its name, we considered interests of all the regions,” he said.

Congress leader Majeed also confirmed his association with Bukhari and said they are going to work together “for betterment of people.”

“Yes, I have resigned from Congress as the party has a specific agenda which is no different from that of BJP. I just needed a free space to work for the betterment of people and decided to quit the party. We are many former MLAs who are with Altaf Sahab,” he said.

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Usman quits Cong to join Bukhari

Monitor News Bureau

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Srinagar, Feb 23: Congress leader and former Bandipora legislator Usman Abdul Majid Sunday announced his resignation from the party.

Usman is one of the nearly two dozen leaders who have joined hands to structure a new political podium in Jammu and Kashmir led by former minister Altaf Bukhari, which would likely be formed in the first week of March.

Usman has announced his resignation during a convention in Bandipora on Sunday.

 

“Yes, I am resigning from the party because Congress is no different agenda as it has its own particular agenda. I want to work freely for my people,” he told The Kashmir Monitor.

Asked if he was joining Altaf’s upcoming party, Usman said: “Yes I am with Altaf Sa’ab.”

Usman said that he will send his resignation to the party on Monday.

Addressing the convention, Usman lashed out at Congress saying it was is “because of it that the people of Kashmir have been suffering from last 70-years.”

“This party is behind the sufferings of Kashmir people,” he said.

Referring to Altaf Bukhari’s ‘Apni Party, Usman said the new party will be floated very soon.

“Regional parties including National Conference and Peoples Democratic Party misled people here over self-rule and autonomy. People in Kashmir are suffering because of their misdeeds,” he said.

He accused Congress of ‘double speak’ and claimed the party leadership was never sincere to the people of the Jammu and Kashmir.

“They would speak one language in Delhi, other at Jammu and quite contrasting in Srinagar,” he said.

 Usman said like-minded people have already joined hands for the new party.

“The party which is being floated is not backed by BJP. Linking our new regional force with BJP is totally baseless and concocted,” he said.

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Want normal political activity to resume: Madhav

Monitor News Bureau

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Srinagar, Feb 23: BJP National General Secretary Ram Madhav on Sunday said that everyone in his party wants the situation in Jammu and Kashmir to become conducive for “normal political activity” to resume.

“Keeping the situation of J&K in mind, the government has invoked certain Sections for the detention of some leaders there. When the situation improves and things normalise, everybody will be allowed to do their political activity. We all want the situation in Jammu and Kashmir to become conducive for normal political activity to resume,” Madhav told ANI.

Ram Madhav’s response comes days after Defence Minister Rajnath Singh said that he was praying for the early release of the three former chief ministers of Jammu and Kashmir who are currently under detention.

 
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