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9 Jun 2022 4:34pm

Nikhil Upadhyay, Son of PIL Man of India, Files Impleadment Application In Article 370 Matter In SC

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Nikhil Upadhyay, the son of the renowned PIL man of India, Adv. Ashwini Upadhyay, has filed an application in the Hon'ble Supreme Court in the Article 370 case. 5th semester law student Nikhil has filed an intervention petition requesting the court to hear his arguments. The application has been filed through Advocate-on-Record Ashwani Kumar Dubey on behalf of the applicant. (Radha Kumar & Others vs Union of India & Another)

The applicant (Nikhil Upadhyay) is sincerely and seriously interested in the unity and national integrity and firmly believes that J&K is an integral part of India. He believes that Article 370 was intended to be a temporary, transitional and special provision and was not meant to be permanent. In fact, Article 370 contains within itself the mechanism of its erosion. It provides the route for the full and complete integration of J&K with India and its own redundance.

Here is the name of the judgement which has been cited in this petition - P.N. Kaul (AIR 1959 SC 749), R. Sampad Prakash [(1969) 2 SCR 365]; P. Lakhan Pal [(1962) 1 SCR 688] and SBI Vs. Santosh Gupta (2017) 2 SCC 538.

Applicant respectfully submits that,

● All the instruments of accessions were executed qua India under the India (Provisional Constitution) Order, 1947 which was issued as per Section 8 of the Indian Independence Act, 1947 read with the Government of India Act, 1935. These Instruments enable the execution of an Instrument of Accession by the Ruler of an Indian State. The Government of India Act, 1935, vide Section 5 and 6 thereof, contemplated the joining of Indian Federation ( Pre-Partition ) comprising the Governors Provinces and Indian States. The Rulers were to execute an Instrument of Accession. Proviso to Section 6(1) envisaged conditional Accession. However, this Proviso was dropped in the India (Provisional Constitution) Order, 1947 [ IPC Order]. Hence, post independence there could not be a conditional execution of the Accession Instrument.

● Both the Government of India Act, 1935 and the IPC Order, 1947 contemplated specification of matters which the Ruler accepted as matters with respect to which the Federal or Dominion Legislature may make laws for the State and limitations in that regard, and also as regards exercise of executive authority in relation to that state. It is necessary to state that Specification of matters in the instrument of Accession does not make Accession conditional. That is an issue of federal distribution of powers. 

● It is beyond any pale of doubt that at the time of its drafting, the intent behind incorporating a special provision for the State of Jammu and Kashmir was necessitated in light of the then prevailing social political conditions, and more relevantly the Instrument of Accession as entered into between the Union of India and the then Ruler of the State.


Tagged: Ashwini Upadhyay Article 370 Nikhil Upadhyay Articles 369 Article 238 Supreme Court of India Articles 371 Delhi Agreement 1952 Radha Kumar & Others Constitution of India
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