Clear Fraud On Art 370: Bar

SRINAGAR — The Kashmir High Court Bar Association on Friday termed Government of India’s approval to extension of two central constitutional amendments to Jammu and Kashmir as a “clear fraud on the provisions of Article 370 of the Constitution of India and unconstitutional.”

The approval by cabinet headed by Prime Minister Nadrendra Modi was done on recommendations of the state’s governor for granting reservation in promotions and reservation for economically-weaker sections of the society.

The union cabinet had approved the proposal to extend constitution 77th amendment (reservation in promotion for the scheduled castes and scheduled tribes) and constitution 103rd amendment (reservation for economically-weaker sections of society) to J&K.

After a marathon meeting of its members, the lawyers’ body demanded their immediate rolled back.

In a statement issued here, the lawyers’ body examined in great depth the ordinance as well as Constitutional Application Order, 2019 from the Constitutional perspective and found that the Ordinance and the order issued is not what it purports to be, but in essence and substance merely a cloak to extend to the State of J&K the constitutional amendments carried out in the Constitution of India by the Constitution (seventy-seventh Amendment) Act, 1995 as well as the 103rd Amendment effected to the Constitution of India, creating provision for Reservations for Economically Backward members of the Society.

“Be noticed, that the constitution of India doesnot by its own force apply to the State of J&K and its provisions can be extended only in accord with the mechanism constitutionally provided and prescribed under Article 370 of the Indian Constitution,” reads the statement.

The lawyers body said that the Central government at a point of time, when the Supreme Court is already seized of the writ petition challenging constitutional validity of Article 35-A of the Constitution of India as applicable to the State of J&K, has come out with the J&K Reservation (Amendment) Ordinance to amend J&K Reservation Act, 2004, and Constitution (Application to Jammu and Kashmir) Amendment Order, 2019, to amend the Constitution (Application to Jammu and Kashmir) Order, 1954, purportedly on the recommendations of State Administrative Council (SAC).

“The council after the Presidential Proclamation of Emergency dated 19.12.2018, has ceased to exist, therefore, could not have made any recommendation,” it said, adding, “It hardly needs to be mentioned that in terms of Presidential Proclamation of Emergency dated 19.12.2018, the President has assumed all the functions of the State and all powers vested or exercisable by the Governor and in exercise of those powers or functions it has been declared by the President lawful to act to such extent as he thinks fit, through the Governor.”

The Governor is thus an “agent of the President of India” and an agent cannot make any kind of recommendations for issuing any Ordinance or order, it said. “It is also relevant to mention here that in terms of another notification issued by the President on 19.12.2018 itself, the Governor has to exercise only those powers granted to him subject to superintendence, direction and control of the President, making it further clear that the concurrence given by the Governor, in the instant case, is a concurrence from Ceaser to Ceaser’s wife.” 

“Given the constitutional mandate enshrined in Article 370, as regards, the application of the provisions of the constitution of India to the State of J&K, as well as the constitutional authorities, designated thereunder and the dispensation at the helm of affairs in the State of J&K at present, the Ordinance issued by the Central Govt, therefore, is clearly a fraud on the provisions of Article 370 of the Constitution of India and therefore unconstitutional, liable to be rolled back.”

The Bar Association, according to the statement, also found the notification dated 28.02.2019, declaring “Jamaat-i-Islami” as an unlawful association, as legally and constitutionally invalid because it is aimed at to deprive the Kashmiri Muslim students to receive education in the schools run by Falah-i-Aam Trust, which is their fundamental right.

“It is also aimed to curb the peaceful religious activities of the organization which is clearly an interference with the religious affairs of Muslims of Kashmir.”

Consultation with various segments of society going on: JRL

JRL comprising Syed Ali Geelani, Mirwaiz Umar Farooq and Mohamad Yasin Malik have strongly “condemned the authoritarian and arbitrary” decision of Government of India banning Jamat-e-Islami J&K after a crackdown on its cadres and rampant arrests.

In a statement issued here, the JRL said that Jamat-e-Islami has been running many schools and educational institutions across the valley as a socio-religious organisation for decades.

The JRL said that post the Pulwama attack there has been a deliberate attempt to direct revenge against Kashmiris including attacks on students studying outside to mass arrests and crackdown , raids on homes of leadership and people across the valley to banning organisations and fiddling with 35A and 370.

“All this is being undertaken by the rulers in New Delhi in a sweeping and muscular manner by continuing with their Kashmir doctrine of force, to be seen as being tough on Kashmir and fulfilling their agenda over it in order to woo and consolidate their voters for electoral gains.”

It said the way these authoritarian announcements are being made at night it looks very likely that the decision to remove 35 A/370 could also be made in this dramatic manner one of these days.

“Despite being under arrests and house arrest and in a difficult situation, we are in touch with various segments of society– the Bar association, traders, civil society and others to see how this assault will be resisted collectively by the nation.”

People have to vigilant and ready to defend “this great assault against us as it is a matter of our very existence.”

“t’s a do or die for Kashmiris who have staked all in the last 70 years of our struggle for self-determination having made tremendous sacrifices. We cannot let the sacrifices go in vain,” the JRL said.

The leadership said the ongoing India Pakistan escalation has once again confirmed to the world that unless the basic dispute of Kashmir is resolved, the world is in imminent danger that a nuclear war can flare up anytime between two nuclear neighbours.

“The world has to wake up to this reality and pressurize India and Pakistan to talk and resolve the issue if it wants to avoid the danger of a war. Leadership said Ours is a genuine and just struggle recognised by the international community and begging resolution for the past 70 years, instead we are being oppressed and intimidated.”

JRL also strongly condemned the lockdown of Jamia Masjid Srinagar and disallowing of Friday prayers and restrictions in most parts of the city.

“Meanwhile, protests were held after Friday prayers all across against banning of Jamat-e-Islami, illegal raids by NIA, continuous arbitrary arrests. In this regard, JRL activists took out a protest rally at Lal Chowk Srinagar.”

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