New Delhi, Jan 22: Senior Advocate Zaffar Ahmed Shah, appearing for the Srinagar Bar Council, Wednesday commenced his submissions in the after-noon session before the 5-judge bench considering the validity of abrogation of special status of Jammu and Kashmir.
He submitted that the story of the State could not be equated to others and the history of the State had to be borne in mind before any decision could be rendered.
While referring to the Instrument of Accession (IOA), Shah stated the IOA gives power to the Union to legislate on specifically three matters, i.e. defence, communication and external affairs. Clause 8 of the IOA allows the Rules to retain the “powers, authority and rights” except on those matters enumerated in the Schedule.
“What impacted the shape of Article 370? Why was Jammu and Kashmir treated as it is and not as a part of the Union like the other States?”
Shah delved into the history of the country and submitted that J&K, Junagadh and Hyderabad were the only the States left which had not readily acceded to the Union of India. However, the circumstances for J&K were different.
“In the case of all other States, there were primarily three documents which had been executed:
1. IOA – This meant that you have not fully seceded from the Union.
2. Standstill agreement – This meant that the state of affairs were to be at a standstill.
3. Merger agreement – This categorically entails that the life of the State comes to an end as it had fully merged with the Union.
In the case of J&K, there was only an IOA, and no standstill agreement or merger agreement.”, he explained.
On the basis of the aforementioned submission, if any law had to be legislated in J&K, it could only be done in consultation or concurrence with the State. Article 370 provided that whatever the legal effect was, this consultation/concurrence had to be taken. Therefore, apart from the three matters enumerated in the Schedule of the IOA, for the rest, the State had to be consulted.
In general, for other States, if the Parliament intended to legislate for a State, first a constitutional entry had to be made applicable to the State and then only the law could be legislated. However, Article 370 found a different way which left the legislation to the State Government. Therefore, there was a deliberate intention behind retainment of the Article; doing away with it would entail snapping ties with the State.
“This allows the State its own Constitution and allows it to regulate its own affairs. This is why we have a separate Constitution. Otherwise there would not have been any need. The framers of the Constitution understood that a need existed for separate provisions. We have a situation where we have two Constitutions functioning in parallel. There has been a conscious effort to continue this.”
Shah submitted that in order to avoid conflicts between the two Constitutions, the concept of concurrence came into being. The two Constitutions worked hand-in-hand. For instance, Presidential Order of 1953 modified the term in the Explanation from “Maharaja” to “Sadar-i-Riyasat”. However, before that modification took place, the Constitution of J&K was amended in order to avoid conflict.
With reference to Sampat Prakash decision, Shah stated that while the judgement envisioned Article 370 as a temporary provision, it also highlighted the fact that situation under which Constitution of J&K had been enacted, it had failed to change.
“So, on the basis of the situation, the provision is still continuing. Article 370 has to stay as long as the situation remains the same.”
Shah then expressed shock at the events which transpired on 05.08.2019, wherein the Presidential Order C.O. 272 was instituted whereby Constitution (Application to Jammu and Kashmir Order, 1954 (and its subsequent amendments) were superseded and all provisions of the Constitution of India were to be applied to J&K. The question raised by Shah was that if this was indeed the case, then why did Article 368 (Power of Parliament to amend the Constitution and procedure therefor) not apply.
He also raised the issue regarding the substitution of the Constituent Assembly with the Legislative Assembly.
“The power of the CA is unlimited; its roots are in the will of the people. It is beyond challenge. How can they substitute it? The court will have to go into the depths of this issue. I am merely describing the contours of this controversy.”
He then proceeded to refer to the Santosh Gupta case wherein the Court had observed that the Constitution of J&K was subordinate to the Constitution of India. It also mentioned the issue of constitutional as well as parliament sovereignty. The Court had further observed that the vestige of sovereignty did not remain for any State.
With regard to that, Shah stated: “The Court observed that the vestige of sovereignty does not remain for any State. But, I submit that this does not hold true for the State of J&K. We have our constitutional autonomy. It is a guaranteed right for J&K. It is guaranteed by the Constitution of India as well as the framework and working of both the Constitutions. Similarly, Clause 8 of the IOA, starting with a non-obstante clause, also states that the sovereignty of the State is not affected.”
Shah then delineated the issue that being integral, in terms of the IOA, to the Union did not deposit in the Union the absolute power of governance; this was denoted by the existence of a separate Constitution. The power of governance continues to vest in the people of the State.
“It needs to be understood in the context of IOA. For governance, we will continue to have our power to legislate and this will be with our concurrence and consultation. Article 370 subsumes the sovereignty of the State. Within the framework of the Constitutions, you have yours and we have ours. This was the method which has been followed in the last 70 years.”
Bukhari’s ‘Apni Party’ constitution in making
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.
Usman quits Cong to join Bukhari
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.
Want normal political activity to resume: Madhav
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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