HC adjourns hearing on plea challenging J&K bifurcationhttps://indianexpress.com/article/india/jammu-kashmir-high-court-adjourns-petition-article-370-jk-reorganisation-act-5931921/

HC adjourns hearing on plea challenging J&K bifurcation

Khawaja, a Delhi based advocate, has sought court’s direction holding the J&K Reorganization Act, 2019, bifurcating the Jammu and Kashmir State into two Union Territories as ultra vires of the provisions of the Indian Constitution.

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The petition submits that the said Act violates the Constitutional paradigm in terms of procedure, substantive law and jurisprudence as well.

The Jammu and Kashmir High Court on Friday adjourned the hearing on a writ petition challenging bifurcation of J&K State into two Union Territories after it found that it was not accompanied by a copy of the J&K Reorganization Act, 2019. The plea has now been adjourned for September 4.

When the petition came up for hearing, Justice Rajesh Bindal found that the petition is defective as the petitioner Advocate Shams Khawaja has not placed on record copy of the Act challenged by him. As the petitioner sought time to remove the defect, the court adjourned the matter for next month.

Khawaja, a Delhi based advocate, has sought court’s direction holding the J&K Reorganization Act, 2019, bifurcating the Jammu and Kashmir State into two Union Territories as ultra vires of the provisions of the Indian Constitution. In the alternative, the court shall direct grant of full and complete statehood to Jammu and restoration of constitutional special provisions to them as existing previously, he prayed.

The petition submits that the said Act violates the Constitutional paradigm in terms of procedure, substantive law and jurisprudence as well. It violates Indian Constitution’s Article 3, undermines the mandate inherent in Article 2 and sabotages the Federal Structuring that is a salient feature and basic to the structure of the Constitution itself, the petition pointed out. The said legislation disregards the Framer’s Intent, manifestly, it said, adding that the Government of India by enacting the Act have exceeded its competent jurisdiction.

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Accusing respondents of being very unfair to the Jammu region, the petition pointed out that this is nowhere to suggest that Kashmir or Ladakh regions have been treated duly.

In this context, the petition pointed to the “Statement of Reasons and Objects” of the legislation, saying the parameters noted for mooring it are sparsely populated in a given territory unit such as Ladakh, the impact of strife in given regions and respective regions having international borders with not very harmonious quarters. Furthermore, the realization of the right to self-determination was also taken cognizance of and acted upon by the respondents selectively, it added.

The right to self-determination is the spring of all democratic thoughts and processes, the petitioner submitted. This right has been very substantially realized though not in full measure to the favour of people of Ladakh, it pointed out, adding that he has little grievance on that count.

However, the people of Jammu are the ones who have been refused realization of the same, not to speak of the oppressed people of Kashmir, the petitioner submitted. It is the duty of the government of the day to provide good governance to the people of the land and further that it is the democratic right of the people to determine their prospects themselves – from policies of their state to implementation priorities and methodology etc., the petition added.

By not granting separate, independent of any other region ‘statehood’, they have belied a long-standing lawful expectation of the people of Jammu, it said, describing the entire exercise of enactment of Jammu and Kashmir Reorganization Act, 2019 (and its implementation) discriminatory to the people of Jammu and their rights under Article 14 of the Indian Constitution which provides for equality of all people before law.