The Supreme Court asks J&K HC Juvenile Justice Committee to examine fresh allegations of detention of minors

The Supreme Court Tuesday asked the four member juvenile justice committee of Jammu and Kashmir High Court to examine afresh allegations of detention of minors by security forces in the state after abrogation of provisions of Article 370.

A bench headed by Justice N V Ramana asked the committee to place its report as expeditiously as possible and posted the hearing for December 3.

The bench said there was a need for examining the allegations afresh as the earlier reports of the committee was not in accordance with the apex court order due to time constraints.

The top court was hearing a petition which has raised the issue of alleged illegal detention of minors in Kashmir.

Law Minister Ravi Shankar Prasad: Article 370 had become shield for terrorists

On Saturday, Union Law Minister Ravi Shankar Prasad said that Article 370, which gave special status to Jammu and Kashmir, had become a platform to “shield” terrorists and their patrons.

“The Government’s decision on Article 370 was taken in the interest of the nation as well as the common people of Jammu and Kashmir,” Prasad told reporters on the sidelines of the inauguration of the 17th all India meet of state legal services authorities in Nagpur, Maharashtra.

“We should understand that it was a temporary provision and removed in the interest of the country,” Prasad said. “We always strive for protection of the country and for the people of Jammu and Kashmir. We want Jammu and Kashmir to progress.” The Centre had on August 5 announced abrogation of provisions of Article 370 and decided to bifurcate the state into Union territories — Jammu and Kashmir, and Ladakh — hours after Kashmir was placed under a total clampdown.

“Article 370 had become a platform to shield terrorists and their patrons, but we finished this. It is for the development of Kashmir,” Prasad said.

“The Prevention of Corruption Act, Prohibition of Child Marriage Act and law to stop manual scavenging were not applicable there. Which Kashmir was this?” the Minister asked.

Prasad said the administration in the state would take a call on further measures after taking into account the situation.

On a query over Pakistan PM Imran Khan’s statement that India is preparing for a Balakot-like strike in Pakistan-occupied Kashmir, Prasad said, “We don’t have to take notice of what they are saying.”

“But a strong reply will be given if any action is taken by Pakistan. Under the leadership of (Prime Minister) Narendra Modi, India is alert about its protection and appropriate reply will given to any terror activities,” he added.

The National Conference moves SC challenging Presidential Orders on Article 370

The National Conference mounted a legal challenge in the Supreme Court on Saturday to the changes made in the constitutional status of Jammu and Kashmir, contending that these have taken away rights of its citizens without their mandate.

Arguing that the legislation approved by Parliament and the orders issued by the President subsequently were “unconstitutional”, the petition prayed for these to be declared as “void and inoperative”.

The petition has been filed by Mohammad AKbar Lone and Justice (rtd) Hasnain Masoodi, both Lok Sabha members belonging to the NC.

Lone is a former Speaker of the Jammu and Kashmir Assembly and Masoodi is a retired judge of Jammu and Kashmir High Court who ruled in 2015 that the Article 370 was a permanent feature of the Constitution.

They have challenged the Jammu and Kashmir Reorganisation Act, 2019 and the Presidential Orders that have followed.

While challenging the Centre’s decisions to scrap provisions of the Article 370 that accorded special status to Jammu and Kashmir and dividing it into two Union Territories, the two MPs have sought a direction to declare the Act and the Presidential Orders as “unconstitutional, void and inoperative”.

The petitioners said that the legislation and the Presidential Orders are “illegal and violative” of fundamental rights guaranteed under Article 14 and 21 of the Constitution to the people of Jammu and Kashmir.

The two MPs submitted that the apex court now has to examine whether the Union government can “unilaterally” unravel the unique federal scheme under the cover of President’s rule while undermining crucial elements of due process and rule of law.

“This case, therefore, goes to the heart of Indian federalism, democratic processes and the rule of apex court as the guardian of the federal structure,” the petition said.

They submitted that Article 370 was extensively considered as carefully drafted in order to ensure the peaceful and democratic accession of the former princely state of Jammu and Kashmir to the Indian Union.

The two parliamentarians from Jammu and Kashmir contended in the petition, filed through Advocate Mahesh Babu, that the Presidential Orders and the new legislation “unconstitutionally undermine the scheme of Article 370.

The first Presidential Order uses Article 370 (1)(d) — this was meant to apply other provisions of the Constitution to Jammu and Kashmir — to alter Article 370 itself and thereby the terms of federal relationship between the J-K and Union of India, they submitted.

President Ram Nath Kovind on Friday gave assent to a legislation for bifurcation of Jammu and Kashmir, and two Union Territories — Jammu and Kashmir, and Ladakh — will come into existence on October 31.

October 31 happens to be the birth anniversary of the country’s first home minister Sardar Vallabhbhai Patel, who was instrumental in the merger of about 565 princely states into the Union of India following Independence.

The Parliament had earlier this week given its nod to the legislation for bifurcating the state, a bold and far-reaching decision that seeks to redraw the map and future of a region at the centre of a protracted militancy movement.

Official notification on scrapping of Article 370 released from President’s Office.

The decision which came as surprise to the whole nation has attracted everyone’s nation. Scrapping of Article 370 ffrom Constitution that provides special status to Jammu and Kashmir has been international talking point in past days.

Ever since the announcement by Home Minister Mr. Amit, reactions from all over the world can be noticed. Security forces have been placed in Jammu and Kashmir.

But now its officail as the President’s Office released the Gazette. Atricle 370 has been scrapped from the Constitution of India officially from 06-08-2019.

Jammu and Kashmir: SC refuses to hear fresh petition challenging Article 370

NEW DELHI: The Supreme Court Monday refused to entertain a fresh petition on Article 370, that gives special autonomous status to Jammu and Kashmir. A bench comprising Chief Justice Ranjan Gogoi and Justice Ajay Rastogi asked the petitioner to file an application for impleadment in the pending matters.

Justices DY Chandrachud and MR Shah said they will hear the matter in the first week of April 2019 after Attorney General KK Venugopal, appearing for the Centre, sought adjournment on the grounds that the current situation is very sensitive. “We have heard the petitioner. The issues raised in the petition are part of the petitions pending,” said the bench.

Senior advocate Rakesh Dwivedi and advocate Shoeb Alam, appearing for Jammu and Kashmir said that a letter has been circulated seeking adjournment due to the ongoing nine-phase Panchayat polls in the state.

SC to hear plea challenging constitutional validity of Article 370 in April

NEW DELHI: The Supreme Court adjourned the hearing on a plea challenging the validity of Article 370 of the Constitution till April 2019, following a request by the state and the Centre.  The Centre had asked for the adjournment saying the current situation is very sensitive in the state.

Supreme Court bench comprising Justices D Y Chandrachud and M R Shah posted the matter for further hearing in first week of April, 2019.Earlier, all major regional parties boycotted the Jammu & Kashmir local body polls over the matter.

Attorney General K K Venugopal, appearing for the Centre, sought adjournment on the ground that the current situation is very sensitive. Senior advocates appearing for Jammu & Kashmir Rakesh Dwivedi and advocate Shoeb Alam told the bench that a letter is being circulated seeking adjournment due to the nine-phase local body polls in the troubled state.

Article 35A provides constitutional protection to Jammu and Kashmir’s special status while Article 370 bestows autonomous status to Jammu and Kashmir.

PIL in SC challenging Article 370 granting special status to Jammu and Kashmir

New Delhi:A PIL has been filed in the Supreme Court challenging the constitutional validity of Article 370 of the Constitution, which grants special status to Jammu and Kashmir and limits Parliament’s power to make laws concerning the state.

The plea has said the special provision was “temporary” in nature at the time of framing of the Constitution and Article 370(3) lapsed with the dissolution of the Jammu and Kashmir Constituent Assembly on January 26, 1957.

The plea, filed by Delhi BJP leader and lawyer Ashwini Kumar Upadhyay, also seeks a declaration from the apex court that the separate Constitution of Jammu and Kashmir was “arbitrary” and “unconstitutional” on grounds, including that it was against the “supremacy of the Constitution of India and contrary to dictum of ‘One Nation, One Constitution, One National Anthem and One National Flag'”.

“The Constitution of Jammu and Kashmir is invalid mainly for the reason that the same has not yet got the assent of the President, which is mandatory as per provisions of the Constitution of India,” the plea, which may come up for hearing next week, said. 

The petition, filed Thursday through advocate R D Upadhyay, claims that the maximum life span of Article 370 was only till the existence of the Constituent Assembly, that was January 26, 1950 when the national document was adopted.

Article 370 is a “temporary provision” with respect to Jammu and Kashmir and restricts the applicability of various provisions of the Constitution by “curtailing” the power of Parliament to make laws on subjects which fall under the Union and Concurrent lists.

Consequently, it allows the state to accord special rights and privileges to the natives, the plea said.

It claimed that the Article empowered the state legislature to frame any law without attracting a challenge on the grounds of violation of the right to equality of people from other states or any other right under the Constitution.

SC: Article 370 not a temporary provision

The Supreme Court today said that Article 370 of the Constitution which gives special status to Jammu and Kashmir is not a temporary provision.

The Supreme court said that in its earlier verdict of 2017 in the SARFESI case, it has been already held that Article 370 was “not a temporary provision”.

“The issue concerned is covered by the judgement of this court in the 2017 SARFAESI matter, where we have held that despite the headnote of Article 370, it is not a temporary provision,” a bench of justices A K Goel and R F Nariman said.

During the hearing, Additional Solicitor General Tushar Mehta appearing for the Centre said that the matter be heard after some time as similar matters are pending before the court and are to be listed shortly.

Senior advocate Rajeev Dhavan and advocate Shoeb Alam appearing for the Jammu and Kashmir government clarified that other matters which are pending before the apex court relates to Article 35 A of the Constitution and not Article 370 as submitted by the ASG.

Dhavan said that those matter cannot be heard along with the present case, which only deals with Article 370.

The bench then adjourned the matter for hearing by three weeks on the insistence of the ASG.

The top court was hearing an appeal filed by petitioner Kumari Vijayalakshmi Jha, against the Delhi High Court’s April 11, 2017 order dismissing the plea seeking a declaration that Article 370 is temporary in nature.

The petitioner had claimed before the high court that Article 370 was a temporary provision that had lapsed with the dissolution of the Constituent Assembly in 1957.

The petition had said that the continuance of the temporary provision of Article 370 even after dissolution of Constituent Assembly of J&K, and that of J&K Constitution which has never got the assent of the President of India or Parliament or the government of India, “amounts to fraud on the basic structure of our Constitution”.

File prayers of pleas pending before SC on Art 370

File prayers of pleas pending before SC on Art 370
File prayers of pleas pending before SC on Art 370

The Delhi High Court today asked the Centre to file the prayers of petitions pending in Supreme Court challenging the constitutional validity of Article 370 that gives special status to Jammu and Kashmir.

The court’s direction came on a similar PIL filed before it challenging the constitutional validity of Article 370 after the Centre submitted that two writ petitions on similar issues are pending before the Supreme Court.

“Additional Solicitor General (ASG) submits that two similar writ petitions are pending before Supreme Court. He is directed to file the prayers made in the said writ petitions,” a bench Chief Justice G Rohini and Justice Jayant Nath said.

During the brief hearing on a petition, the bench asked the counsel for the petitioner whether Jammu and Kashmir High Court has passed any order in this regard.

The counsel for the petitioner — 22-year-old girl Kumari Vijayalakshmi Jha — replied in affirmative but argued that Jammu and Kashmir High Court has no jurisdiction to decide the issue.

“If you are aggrieved by Jammu and Kashmir High Court order, then you should have challenged the order,” the bench said.

The bench after recording the submission of ASG Sanjay Jain that the Supreme Court is also seized of the matter, dismissed the plea.

Counsels for petitioner then protested the dismissal of their plea and submitted that in those petitions before apex court, the prayers and relief sought are different.

( Source – PTI )

Article 370 is permanent: J-K HC

Article 370 is permanent: J-K HC
Article 370 is permanent: J-K HC

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.

( Source – PTI )