F
Falcon
Sir,
The situation is indeed underhanded. The dispensation given to the Centre, under the Constitution, for incorporation of subjects to be implemented by Ordinance in J&K was a one-time dispensation, for a single use only, that has been misused by successive Governments at the Centre over nearly sixty years, the first time, in the full realisation by the ministers and bureaucrats at Delhi that they were collusive in a breach of the Constitution. The legal parameters that you refer to have been specifically and egregiously violated. You might find Dr. Rajendra Prasad's views on the matter of interest.
And as for the comparison with the Catalans and the Kurds, neither of them had the constitutional sanction that the Kashmiris do. Article 370 is hard-wired into the Constitution of India.
Lastly, I sympathise with the frequent attempts of opponents of the status quo to do away with Article 370. Please look at the legal situation once again. It is not a question of the Indian Parliament passing a law with a simply majority; it is not even a question of the Indian Parliament passing a law with a two-thirds majority sufficient for a constitutional amendment either.
Only the state Constituent Assembly was empowered to inform the Indian Parliament that Article 370 is no longer needed, and may be abrogated. The state Constituent Assembly dissolved itself without so informing the Indian Parliament. This Constituent Assembly cannot be reformed, and is forever extinct. Therefore, a possibility of informing the Indian Parliament that Article 370 is no longer needed does not exist, and can never exist, not if we want to retain any legal link to the Valley or to Ladakh or to Jammu.
Please do bear in mind, Sir, that this is not my personal opinion, but the irrefutable legal position, that has been examined gingerly by far greater constitutional authorities than I, and from which position those experts have found it best to retire, creeping away furtively to avoid attracting attention.
Sir.
Your reply is quite structured and requires a certain amount of reading at my end.
However, if one was to follow the line of thought as propounded by yourself, a case for fundamentally re-examining the Instrument of Accession as part of an International Treaty concluded by two sovereign states i.e. the Dominion of India and the State of Jammu & Kashmir as fluidly expanded upon under the Constitution of India vide Article 51 and other statuettes.
It is interesting to note that in Birma v. State division bench of the Rajasthan High Court observed:
".....Treaties which are part of the International Law do not form part of the law of the land unless expressly made so by the legislative authority......."
If, from the above, the treaty entered into by the two independent states after Aug 15 1947, is considered an International Treaty, then the power to make it into a law rests with the Legislative Authority. That by itself empowers the Legislature i.e. Parliament, to move a bill suitably.
I will have to read as this is not my primary field. However, your views will be greatly appreciated.