Jammu and Kashmir – Developments on Aug 5th 2019

Developments on August 5, 2019 on Jammu and Kashmir
-The President of India  signed an order on the morning of August 5, 2019- Constitution Applicable to the State of Jammu-Kashmir order, Order 2019, Constitutional order 272
-The August 5 Presidential order used the powers given under clause 1 of Article 370. The same powere was used in 1954 to issue the Presidential order that granted special status to Jammu-Kashmir.
-After issuance of today’s orders, all the orders or amendments issued under order issued in 1954 stand revoked.
-Now what is applicable is the 2019 order.
-Now all the amendments in the Constitution would  get applicable to  Jammu-Kashmir with very few exceptions
-Modi lead NDA government has also  amended Article 367 and added Clause 4 to it which now includes Jammu-Kashmir in general category along with other states. Earlier  Constitution amendments were not applicable in Jammu-Kashmir as it was not included in the category of states which is refered to as ‘the said states’ in this Article. But now it is also a part of the ‘said states.’ So Jammu-Kashmir is now like any other state when it comes to applying Constitutional provisions
-The power which was vested in Legislative Assembly in the state is now vested in the Governor, Earlier the assembly used to recommend to the governor and the latter used to recommend further to the President of India.
-Now like any other state, the council of ministers will give advise to the Governor
-Constituent Assembly shoud now be read as  legislative Assembly. Thus the compulsion to have Constituent Assembly to scrap Article 370 is not required.
In Parliament:
-Two issues were brought in by the Modi govt in Parliament today
-Clause 2 and 3 of Article 370 were scrapped. According to these clauses, recommendation of Assembly was required to scrap Article 370. But now only Clause 1 remains,.
-Re-organisation of the State: Two Union territories have been carved out. Ladakh is a Union Territory without assembly. It will have two Hill councils and a Lieutenant Governor. Jammu-Kashmir has been made a Union territory with assembly  Governor as administrative head.
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Article 370 of Constitution of India—A Temporary Provision

Indian Constitution and the J&K State have often remained
the subject for discussions and debates. So much, so that, it is a common man’s belief that the Indian State of J&K has a separate Constitution. But it can not be overlooked that the “Separate” Constitution under reference has been given by the Constitution of India. So, when the Indian Constitution is the mother of the J&K Constitution, how could J&K have a separate Constitution?

Controversies related to Article 370

Some people name Article 370 as the root cause of controversies over J&K being equal to all other states of India like Bihar, Panjab, etc ; Many believe that now Article 370 does not have much importance since it is through this article many provisions of Indian Constitution, many laws/ Acts of Indian Parliament been extended to J&K. Many have become part of J&K Constitution or some restrictive provisions of J&K Constitution are now very much in conformity with Constitution of India, so debates on Article 370 should now come to end. Rather the people who made such provisions and made some controversial commitments in 1947 to 1950s should have been questioned or their “heirs” need be asked to accept the responsibility.

It will not be fair to simply question and reject those people for whom such provisions have been laid and if these beneficiaries still want to hold fast to the 1Article 370; they can not be forced to shed their “special” rights, rather they shall have to be socio-politically convinced for coming out of the mindset of “special” provisions . They will have to be convincingly told about the negative aspects, if any, of such provisions in case it has to remove democratically.

Unfortunately today, it is a bitter reality that Article 370 has proved a breeding ground for those who are against J&K as an integral part of India, or who raise questions on Constitutional Status of J&K. It poses also a threat to peace in J&K with the passage of time. The number of those questioning Indian intentions has grown. Rather it appears that Delhi has not taken the issues that seriously over the last 65 Yrs, not even after 1990.

Even some political leaders that do hold fast to 1947 Accession of J&K with India no doubt but still believes that J&K should retain her “own Constitution” and “own Flag” accuse India of unduly extending some provisions of the Indian Constitution to J&K and demand that laws that have been extended to J&K before 1957 or thereafter must be reversed. Many amongst them have remained part of governments in J&K and they and their parties have consented constitutionally according to provisions of Art 370 in and outside J&K legislature for extension or adoption of the Articles or Acts or Provisions that are now being dragged into controversies. It can not be overlooked that the way some of these people have been accusing India of eroding the autonomy of J&K as well as breaching upon the trust that the “Kashmiri” had rested on India has gone to the advantage of those who question the truth of the October 1947 Accession of J&K with India. So, Due to this separatists are so encouraged that when invited by Delhi, they plainly challenge the 1947 accession and they reject the offer. Had it not been so separatists would not have been so particularly drawing the first attentions of Delhi, so plainly challenging the 1947 accession and rejecting the offers for talks from the Governments; expressing so boldly and freely anti-India views in Seminars, rallies and press conferences even outside Kashmir Valley.
 Article 370- “Temporary “not “ Special”
 The *Article 370 of the Indian Constitution is not a special status provision as regards J&K, but it is a temporary provision with respect to the State of Jammu and Kashmir. This Article is temporary and has to go. The word temporary very lucidly conveys that those who drafted and accepted the Constitution of India made this provision hoping that the state of uncertainty and negotiations would end soon. Such message also flows from Article 370 (3) where it is said that ::Notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification :

Since no constituent assembly has to stay permanently and hence using the term Constituent Assembly here indicates that Article 370 had to stay in its first form for a shorter period. Some people do argue that Article 370 can not be abrogated since now there is no Constituent Assembly. For argument sake, even this logic can be brushed aside since the J&K Constituent Assembly was also named as the Legislative Assembly under the Constitution of J&K 1996 amended in 2008 Samvat (discussed in detail in earlier chapters). So, the Legislative Assembly can perform the function in case of need arises. Article 368 of Indian Constitution talks of the procedures for amending the Constitution, maybe it could be of some help.

In the earlier times, the people of other Indian states too did not that seriously care for J&K affairs, now with the passage of time, it may not be that easy to clear doubts in the minds of common man, particularly in Kashmir valley, simply by addressing only to the technicalities.

The facts and truth about the intentions of Delhi shall have to be carried to the common man to clear the confusions created that the separatists over the years; even to undo the concepts that have been cultivated by some “ mainstream” Indian leaders who believe that J&K is different than the other Indian States.

In the same way, the Constitution (Application to Jammu and Kashmir) Presidential order of 14th May 1954 too could be seen as a foundation for J&K Constitution. So someone could say that why should any Indian who is the Permanent Resident of J&K forego any special rights that the Indian Constitution extends to him? In case the people who are not for retention of Article 1370 or J&K holding separate Constitution attend to these aspects seriously, They may not be they succeed in motivating those Indians in J&K who are not ready to shed their “special” provision. There have been surely one disadvantage of Article 370 and that is, that some people have been using Article 370 as a symbol of separatism for wooing the innocent people away from the Bharat. Otherwise, also it would be in the overall interest of those who want to check those who have been and are promoting the separatist’s ideologies in the name of separate Flag and Constitution

Text of Articles of Indian Constitution under reference :

Part XXI of Constitution of India: Temporary provisions with respect to the State of Jammu and Kashmir.

Article 370.

(1) Notwithstanding anything in this Constitution,—

(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to—

      (i) those matters in the Union List and the Concurrent List which, in consultation with the
          Government of the State, are declared by the President to correspond to matters specified in the
          The instrument of Accession governing the accession of the State to the Dominion of India as              the matters with respect to which the Dominion Legislature may make laws for that State; and       (ii) such other matters in the said Lists as, with the concurrence of the Government of the State,                the President may by order specify. Explanation.—For the purposes of this Article, the
          Government of the State means the person for the time being recognized by the President as
         the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the
         time being in office under the Maharaja’s Proclamation dated the fifth day of March 1948;

(c) the provisions of Article 1 and of this Article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

AMENDMENT OF THE CONSTITUTION (Article 368)

Power of Parliament to amend the Constitution and procedure therefor.
(1) Notwithstanding anything in this Constitution, Parliament may in the exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
[(2)] An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in— (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this Article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States 5*** by resolutions to that effect passed by those Legislatures ]before the Bill making provision for such amendment is presented to the President for assent.
(3) Nothing in Article 13 shall apply to any amendment made under this Article.
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this Article [whether before or after the commencement of section 55 of the Constitution (Forty second Amendment) Act, 1976] shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article.
Source : JKN Now

July 25, 1947; When Mountbatten addressed The Chamber of Princes to choose either of the 2 dominions; India or Pakistan, there was NO THIRD OPTION

The Indian Independence Act was passed by the British Parliament on June 17, 1947 and received Royal assent on July 18, 1947; but the fate of the Princely States was largely decided on May 12, 1946 when the Memorandum on State Treaties and Paramountcy was presented to the Nawab of Bhopal and Chancellor of the Chamber of Princes in India by the Cabinet Mission. There was no pre-condition for accession except the decision of the rulers, though the importance of geographical contiguity was emphasized by Mountbatten to the rulers. The Mountbatten Plan of June 3, 1947 discussed the partition of India and advised the rulers of the states to join either of the two dominions in their own interest. On July 25, 1947 Mountbatten addressed a special meeting of the Chamber of Princes and reiterated the need to use the Instrument of Accession to accede to either of the two dominions. Maharaja Hari Singh joined India through this instrument, like the other Princely States.
There was no third option, Read the the address speech of  Crown Representative Lord Louis Mountbatten’s Address to A Special Full Meeting of The Chamber of Princes on July 25, 1947
 
“It is a Great pleasure and a great privilege for me to address so many Rulers, Dewans and Representatives of the States of India in this historic Chamber of Princes. It is the first and last occasion that I have the privilege of addressing you as crown Representative.
 
I would like to begin by giving you a very brief history of the negotiations I had conducted since I have been out here and the line that I have taken up about the States. There were two distinct problems that faced me. The first was how to transfer power to British India and the Second how to fit Indian States into the picture in a manner which would be fair and just to all concerned.
I dealt first with the problem of British India, because you will realize that until that problem was solved it was quite useless to try to start on a solution of the problem of the States. So I addressed my mind to the former. There had been universal acceptance among the States of the Cabinet Mission’s Memorandum of 12th May and when the political parties accepted the Statement of 3rd June they fully realized and accepted that withdrawal of Paramountcy would enable the States to regain complete sovereignty. That gave me a starting point from which to try and deal fairly with the states.
But before I got down to dealing with the States there was one other thing that I clearly had to do. I had to address myself to the problem of the mechanics of partition- a plan against my personal desires. As you all know, It took three years to separate Burma from India, in spite of the fact (as I can testify, as also His Highness of Bundi and other who fought in Burma) that there are no roads running between Indian and Burma. Nevertheless, it took three years to arrange that partition. It took two years to separate the province of Sind from Bombay. It took two years to separate the province of Orrissa from Bihar.
Gentlemen, we decided that in less than two and a half months we shall have to go through the partitioning of one of the biggest countries in the world with 400 million in habitants. There was a reason for the speed. I was quite certain that while the British overlordship remained no satisfactory conclusions could be reached psychologically between the parties. So once we got the two Governments set up and separated they would be able to try and finish off the details in an atmosphere of goodwill. Now, the Indian Independence Act releases all the States from all their obligations to the crown. The States will have complete freedom- technically and legally they become independent. Presently I will discuss the degree of Independence which we ourselves feel is best in the interests of your own states. But there has grown up during the period of British Administration, owing to the fact that the crown Representative and the Viceroy are one and the same person, a system of coordinated administration on all matters of common concern which meant that the sub-continent of India acted as an economic entity. That link is now to be broken. If nothing can be put in its place, only chaos can result, and that chaos, I submit will hurt the States first, the bigger the States the less the hurt and longer it will take to feel it-but even the biggest of the States will feel the hurt just the same as any small state. The first step was to set up some machinery by which it was possible to put the two future Governments of India- the Dominions of India and Pakistan-into direct touch with the States. So I conceived the scheme of setting up two states Departments within the future Governments. Please note that these States are not the successors of Political Departments. They have been set up simultaneously and side by side. While the Political department exercised functions relating to paramountcy on behalf of the Crown Representative, the States Departments are to take over those subjects gradually which have nothing to do with paramountcy but which will be concerned with relations with neighboring States and also provide the Machinery to negotiate in such matters. In India the States Department is under admirable guidance of Sardar Vallabhhai Patel with my own reforms Commissioner, Mr. VP Menon as Secretary. In Pakistan the Department is under Sardar Abdur Rab NIshtar with Mr. Ikramullah as the Secretary.
It was necessary to set up two States Departments, one in each Government, because States are theoretically free to link their future with whichever dominion they may care. But when I say that they are at liberty to link up with either of the Dominions, may I point that there are certain geographical compulsions which cannot be evaded. Out of something like 565 states the vast majority irretrievably linked geographically with the dominion of India. The problem therefore is of far greater magnitude with the dominion of India than it is with Pakistan. In the case of Pakistan the States although important, are not so numerous, and Mr. Jinnah, the future Governor-general of Pakistan, is prepared to negotiate the case of each State separately and individually. But in the case of India, where the overwhelming majority of the states are involved, clearly separate negotiation with each State is out the question.
The step that I took was to suggest that in the Bill Parliament- the Indian Independence Act- a clause should be put in which would enable certain essential agreement continue until renounced by either side. That was only done to ensure that there should be some continuity if in the short time available it was not possible to get the agreement through with every State representative. It does not replace the need for Standstill agreements; it gives a very slight breathing space. Now, I think it is no exaggeration to say that most Rulers and Dewans were apprehensive as to what their future would be when Paramountcy lapsed. At one time it appeared that unless they joined the Constituent Assembly and accepted the constitution when it was framed, they would be outside the organization and left in a position which, I submit, no state could view with equanimity -left out and having no satisfactory relations or contacts with either Dominion Government. You can imagine how relived I was , and I am sure you will yourselves have been equally relived when Sardar Vallabh bhai Patel on taking over the States Department made , if I may say so, a most Statesman like Statement of what he considered were the essentials towards agreement between the States and the Dominion of India. Let us turn for one moment to the Cabinet Mission Plan of 16 May 1946. In this Plan the proposal was that the States should surrender to Central Governments three subjects Defence, External Affairs and Communications. That was a plan which to the best of my belief, every Ruler and every State accepted as reasonable, fair and Just. I talked with so many Rulers and everyone felt that Defence was a matter that a State could not conduct itself. I am not talking of internal security but of defence against external aggression. I submit what if you do not link up with one or other of the Dominions; you may be cut off from any source of supplies of up-to-date arms or weapons.
“External Affairs” is inextricably linked up with Defence. “External Affairs” is something again which is outside the boundaries of India in which not even the greatest state can operate effectively. You can hardly want to go to the expense of having ambassadors or ministers or consuls in all foreign countries; surely you want to be able to use those of India or Pakistan. Once more I suggest that “External Affairs” is something that you have not dealt with since the formation of East India Company. It would be difficult to operate and will also be a source of embarrassment for you to have to take it up and it can only be managed by those who manage the Defence of the Country. I submit that if you take it up it will be a liability and not an asset.
The third subject is communications. “Communications” is really a means of maintaining the life-blood of the whole sub-continent. I imagine everybody agrees that the life of the country has got to go on. The continuity of communications is already has got to go on. The continuity of communications is already provided for to a certain extent in the Indian Independence Act; Therefore, I am sure you will agree that these three subjects have got to be handled for you for your convenience and advantage by a larger organization. This seems so obvious I was at loss to understand why some Rulers were reluctant to accept the position. One explanation probably was that some you were apprehensive that the Central Government would attempt to impose a financial liability on the States or encroach in other ways on their sovereignty. If I am right in this assumption, at any rate so far as some Prim concerned, I think I can dispel their apprehension misgivings. The Draft Instrument of Accession which I caused to be circulated as a basis for discussion (and not for publication) to the representatives of the States provides that the States accede to the appropriate Dominion on the three subjects only without any financial liability. Further, that Instrument contains an explicit provision that in no other matters has the Central Government any authority to encroach of the internal autonomy or the sovereignty of the States. This would, in my view, be a tremendous achievement for the States. But I must make it clear that I have still to persuade the Government of India to accept it. If all of you will co-operate with me and are ready to accede, I am confident that I can succeed in my efforts. Remember that the day of the transfer of power is very close at hand and, if you are prepared to come, you must come before 15 August.
I have no doubt that this is in the best interests of the States, and every wise Ruler and wise Government would desire to link up with the Great Dominion of India on a basis which leaves you great internal autonomy and which at the same time gets rid of your worries and cares over External Affairs, Defence and Communications. The whole country is passing through a critical period. I am not asking any State to make any intolerable sacrifice of either its internal autonomy or independence. My scheme leaves you with all the practical independence that you can possibly use and makes you free of all those subjects which you cannot possibly manage on your own. You cannot run away from the Dominion Government which is your neighbor any more than you can run away from the subjects for whose welfare you are responsible. Whatever may be your decision, I hope you feel that I have at least done my duty by the States.”
Source : JKNow

Brindavana of Sri Vyasatirtha

Brindavana of Sri Vyasatirtha (Rajaguru of Krishnadevaraya) has been destroyed last night by miscreants. Nava Brundavana Kshetra, an island in Tungabhadra river, adjacent to Hampi. Outrageous!


Navabrundaavana (also known as Navavrundhaavana and Navabrindavan) ನವ ಬೃಂದಾವನ is located at Hampi, Karnataka. It contains the Brundaavanas of nine Hindu Acharyas, who belong to Uttaradi Mutt, Sri Raghavendra mutt, Sri Vyasaraja mutt and the Sri SriPadaraja mutt and other prominent Madhwa Mutts. It is located on an island in the Tungabhadra River. The nine Dharmacharyas are:

Shree Padmanabha Tirtha, direct Sishya of Jagadguru Shri Madhvacharya

Shree Kavindra Teertharu

Shree Vageesha Teertharu

Shree Raghuvarya Teertharu

Shree Vyaasa Teertharu or Vyasaraajaru

Shree Sudheendhra Teertharu (Guru of Mantralaya Shri Raghavendra Tirtha)

Shree Srinivaasa Teertharu

Shree Raama Teertharu

Shree Govinda Vodeyaru