000-tobecategorised

https://thewire.in/law/the-last-pillar-of-indian-democracy-has-fallen 

the Supreme Court has opened the way for his or any future government to amend the Constitution without having to bother with getting a two-thirds majority in both houses of Parliament.

To justify its decision, the bench has put forward two other supporting arguments. The first is that Article 370 was placed in part 21 of the Constitution titled “Temporary, Transitional and Special Provisions”. Thus it was never meant to be permanent. So all that the Modi government has done is to close the chapter on Kashmir.

The second is that over the decades since the accession, Kashmir’s laws have in any case been brought in line progressively with those of the rest of India. So as the government has argued, the autonomy shielded by Article 370 had been been ‘gradually eroded’.

What the Supreme Court has chosen to ignore is that all this was done with the consent of the Kashmir governments of the time. Sheikh Abdullah had signed the Delhi agreement only after convening a constituent Assembly with 75 members, to approve of it. In the decades that followed, more and more all-India laws and provisions were extended to Kashmir as well with the full consent, often at the request of, the Kashmir government. As Sheikh Abdullah’s talks with Indira Gandhi’s special representative, G. Parthasarathy, before returning to power showed, there was next to nothing left that he wanted to change.

This process was a world away from the sleight of hand that the Modi government used in 2019, to ‘complete’ the integration. The contrast between ‘erosion by consent’ and ‘erosion through brute force’ was vividly demonstrated by the weeks-long curfews, the complete shut down of internet services, and the paralysis of transport even afterwards that forced people catching flights out of Kashmir to walk kilometres to get to the airport. For the Supreme Court to have glossed over this stark and humiliating difference is inexcusable.

Judiciary Slams EC I "Abdication of Constitutional Duties " https://www.youtube.com/watch?v=hKaYxcJyCrc  Mojo Story At a time when the powers of the election commission, its independence and how to appoint its members is the subject of fierce debate, the Election Commission finds itself in the middle of a big legal controversy. The Bombay High Court has directed the Election Commission of India to immediately conduct bypoll to the Pune Lok Sabha seat which has been vacant since March 29, 2023, after the death of Member of Parliament Girish Bapat.

A division bench of Justices GS Patel and Kamal Khata quashed and set aside a certificate issued by the ECI which stated that bypoll will not be held. 

Citizens going unrepresented would amount to sabotaging the entire constitutional framework, the Bombay High Court said. “We find it unthinkable that several months could go pass and the entire constituency be told that now time has not remained and constituency might as well wait for 2024. We cannot possibly accept or contemplate this,” the bench held.

 ECI submitted that the whole of its machinery has been far too busy since  March 2023 to prepare for the upcoming general elections of 2024. The court did not find this to be a genuine difficulty. 

The petitioner, Sughosh Joshi, a registered voter in Pune constituency, challenged the ECI certificate.

 Advocate Dayaar Singla | Petitioner's Lawyer

Abha Singh | Lawyer

Satya Pal Jain | Additional Solicitor General of India

Ashutosh Shrivastava | Advocate

Basic Structure - shailendra Awale by WA


Basic Structure, of an institution or constitution, always considered sacrosanct, cannot be touched.  In a democratic polity the constitutional framework serves as protection of the stated rights,  a sort of insurance coverage. If you are paying the premium as a part of the government system or a party in power, you are protected. Not a long time ago,  while speaking in Dehradun, Chief Justice Chandrachud had underlined that in a democracy, majority will have its way, but minority must have its say. He further added social harmony in a democracy should not be achieved by flushing out dissents. Quite a toast of the day. But in real life politics, the first part is the core, laws are formed, changed and repealed by a majority. So they will always say. But natural for a democratic institutional set up from parliament,  executive or election commission or the judiciary will present vibrancy of a rainbow of majoritarian set up and identity.
Minority will be provided a say, an extension of the goodwill or a promise from a large hearted majority who has a way.
In Ram Mandir Judgement, the supreme court held that demolition of vivadit dhancha aka Babri Masjid till the day was an egregious violation of the rule of law. So the best ‘way’ forward is to handover the land in question to a party to a party who were part of the demolition squad and a part of the majority of the democratic polity. A charitable court using her special power asked the government to allocate the land to the minority to have their place of worship. No wonder it was a political agenda, project and a promise of the party in power, with a comfortable majority.

Again the Supreme Court in the case of Article 370, recognises the rights of the president, elected by a majority in democracy, to pass an order, abrogating an article 370, a solemn promise to minority who are a majority in State Jand K then. The president decides and passes an order without any consultation or recommendation from the state. What a power sir jee. Yes, CO 272 had overstepped, but had no bearing on CO 273. If the Executive or Solicitor General were aware of such power entrusted to them, they would not opt for circumspect process. Now not just a window, a door is open for them to present alternative vision abiding the law making process by issuing CO. Was it not an agenda of the party in power or their promise to their majoritarian followers?
So the court can decide the way between two fronts of the majority party. Minorities can approach the court to have their say, and  listen or adhere to the way forward.
Yes, the basic structure is sacrosanct, like  federal polity, fundamental rights, etc, but the majority will always have Super Express Way in a democracy.