Hem Raj Jain
Sub:- when India has not restored the territorial integrity of J&K in 70 years, the people of J&K has every constitutional right to revoke the Instrument of Accession.
---- As per media report [Non-applicability of any Constitutional amendment in Jammu and Kashmir, without a Presidential Order under Article 370 of the Constitution, has been challenged in the Delhi High Court which has decided to hear a PIL in this regard on January 2. This petition challenges the Constitution Order 1954 that adds a proviso to Article 368 of the Constitution]
It does not need further elaboration that this matter of special status of J&K under Article 370 is a question of life & death for the people of J&K. Hence by citing this petition in Delhi HC as cause of action the people of J&K should file a writ petition in J&K HC. The people of J&K will succeed in this petition at J&K HC [which will ultimately be transferred to Supreme Court of India (SCI) along with said petition in Delhi HC] only when they say the following in this petition:-
(1)- The people of J&K should say that there is nothing sacred about claim that entire J&K (including PoK) is an integral part of India. Territories are not decided on paper but by military strength. Hence mere mention of J&K being an integral part of India is not worth the paper (howsoever important like Indian Constitution) it is written on especially when about half the territory of J&K (as it was in August 1947) is with Pakistan for the last 70 years (even some with China through Pakistan).
(2)- The people of J&K should say that theocratic Pakistan much smaller than India tried to take Muslim J&K militarily in 1947, 1948, 1965, 1971, during Kargil etc but so-called secular Hindu majority India never tried to retrieve Muslim PoK militarily from Pakistan. Therefore as per adverse possession Pakistan has better claim on J&K than India.
(3)- The people of J&K should say that on the contrary (instead of taking on Pakistan military for the retrieve of PoK) the Indian military is showing its bravery by training guns at the civilians of J&K under the protection of AFSPA, SPA etc with the result gross human rights violation by security forces of India have taken place in J&K and which has even recently resulted in over 5 months of shut down in Kashmir valley (due to killing, injuring, damaging eyes mostly of youth at huge scale by pellet guns).
(4)- The people of J&K should say that J&K acceded to India in order to protect its territorial integrity (which was threatened by Pakistan). That is the main reason that Instrument of Accession granted martial (mainly defense) jurisdiction to Union of India. But when India has not restored the territorial integrity of J&K in 70 years (~ half of territory of J&K is still with Pakistan and China) that means Union of India has deliberately reneged on its obligation as per Instrument of Accession. Hence the people of J&K not only have every constitutional right to revoke the Instrument of Accession signed in 1947 end but also to approach various international forums in order to restore the territorial integrity of J&K.
(5)- The people of J&K should say that the people of India and Indian State should be grateful to the people of J&K that so far the people of J&K have not moved the Court to revoke the Instrument of Accession and are satisfied only with the Constitutional provisions which give special rights to the people of J&K [including those which are related to the citizenship (permanent residency) of J&K and right to immovable properties to only natives of J&K]
(6)- The people of J&K should say that in view of the above mentioned the Court should declare that there is no illegality or unconstitutionality in - [Non-applicability of any Constitutional amendment in Jammu and Kashmir, without a Presidential Order under Article 370 of the Constitution or in the Constitution Order 1954 that adds a proviso to Article 368 of the Constitution]
Here it is important to mention that the people of J&K will succeed in this petition in J&K HC and ultimately in SCI only when some leaders of various fields in J&K (who have unquestioned loyalty to the cause of J&K) will be present in Court on hearing day to provide on-the-spot guidance to their advocate, whenever necessary, to fight this writ petition properly & effectively.
Hem Raj Jain