Tag Archives: Article 370

Changes in J&K with the abrogation of Article 370

 
1. Separate Constitution of J&K has ended.  

2. There will be No separate state flag in J&K. 

3. The J&K Assembly seats will follow the new delimitation policy. 

4. 35A ends in J&K; now Scheduled castes, refugees from West Pakistan, Gorkhas and Women will be entitled to their rights including reservations.

5. The STs in J&K will now be entitled to their political reservations. 

6. The 3-tier Panchayat system will now be applicable  and implemented in J&K. 

7. All the Articles of Indian Constitution will be applicable in J&K, earlier the terms ‘secular’ and ‘united & integrated’ were not applicable in J&K. 

8. The Right to Education (RTE) of Indian Constitution will now be applicable in J&K. 

9. The term of the state Assembly in J&K will now be for 5 years like the other states in India, and not 6 years. 

10. The ‘oath-taking’ of Ministers and Judges in J&K will now have the clause and will be read as ‘allegiance to Indian Constitution’. 

11. Other Backward classes in J&K will now be entitled to their rights.

12. J&K will have Lieutenant Governor in the place of Governor. 

13. J&K will now have two centrally-governed territories; 1. J&K 2. Laddakh

14. Citizens from all over Bharat can now reside in J&K.

Advertisements

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

No Sovereignty For J-K Outside Constitution of India – Supreme Court

The bench called it “disturbing” that various parts of a judgment in appeal by the J&K High Court spoke of the absolute sovereign power of the state.

Snubbing the Jammu and Kashmir High Court for asserting the state’s “sovereignty” and “sovereign powers”, the Supreme Court Friday said J&K “has no vestige of sovereignty outside the Constitution of India”. A bench of Justices Kurian Joseph and Rohinton Nariman also rejected the J&K High Court’s view that the J&K Constitution was equal to the Constitution of India.

“It is clear that the state of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India… they (residents of state) are governed first by the Constitution of India and also by the Constitution of Jammu & Kashmir,” the bench said, referring to the preamble of the Constitution of J&K, 1957.

The bench called it “disturbing” that various parts of a judgment in appeal by the J&K High Court spoke of the absolute sovereign power of the state. “It is necessary to reiterate that Section 3 of the Constitution of Jammu & Kashmir, which was framed by a Constituent Assembly elected on the basis of universal adult franchise, makes a ringing declaration that the State of Jammu & Kashmir is and shall be an integral part of the Union of India. And this provision is beyond the pale of amendment,” the judges said.

The bench also clarified that J&K residents are “first and foremost” Indian citizens. “It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves. The residents of Jammu & Kashmir, we need to remind the High Court, are first and foremost citizens of India… permanent residents of the state of J&K are citizens of India, and that there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world,” it said.

The top court pointed out that it was constrained to observe these because in at least three places, the High Court, in its judgment, “has gone out of its way to refer to a sovereignty which does not exist”.

Underlining that the quasi-federal structure of the Constitution of India continues even with respect to J&K, the bench said: “Article 1 of the Constitution of India and Section 3 of the Jammu & Kashmir Constitution make it clear that India shall be a Union of States, and that the State of Jammu & Kashmir is and shall be an integral part of the Union of India.” It said the J&K Constitution has been made to further define the existing relationship of the state with the Union of India as an integral part thereof.

The court said this while deciding a legal question on whether the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) will be applicable to J&K or the law was outside the legislative competence of Parliament since its provisions would collide with Section 140 of the Transfer of Property Act of J&K.

SARFAESI Act entitles banks to enforce their security interest outside the court’s process by moving a tribunal to take possession of secured assets of the borrower and sell them outside the court process. The High Court had said that the state has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties.

After the State Bank of India appealed against the High Court order, the J&K government submitted in the Supreme Court that this law encroached upon the property rights of permanent residents of the state and must be read down so that it will not be permissible to sell property belonging to a permanent resident of the state to outsiders. It was also argued that Parliamentary legislation would need concurrence of the J&K government before it could apply to the state under Article 370.

But the Supreme Court bench shot down these arguments, saying SARFAESI Act deals with recovery of debts due to banks and financial institutions, which is relatable to a subject under the Union List and parliamentary legislation did not require concurrence of the state government since the Centre had power to make law on this subject.

“Entries 45 and 95 of List I clothe Parliament with exclusive power to make laws with respect to banking… the Act as a whole would necessarily operate in the state,” the bench said, adding that the SARFAESI Act had itself made a special provision for sale of properties in J&K.

The bench, however, made it clear that any provision of the J&K Transfer of Property Act will have to give way to the central law in case the former is found repugnant. “It is clear that anything that comes in the way of SARFAESI by way of a Jammu & Kashmir law must necessarily give way to the said law,” it said, adding that its judgement had no effect on Article 35A, which confers on permanent residents of J&K special rights and privileges regarding acquisition of immovable property in the state.

Courtesy: The Indian Express

1953: A Kashmir story

By Jagmohan

syama prasad

Dr.Shyama Prasad Mukherjee

Some excerpts : On June 23 ( 1953) , Syama Prasad Mookerjee died as a detainee of the state government in the Srinagar Camp Jail at the relatively young age of 51.He had gone there to protest against a system under which even Indian citizens, including the President of India, could not enter, without a permit, the state of Jammu and Kashmir, despite it being a part of the Union.

Soon after Mookherjee’s death, his mother, Jogmaya Devi, posed a poignant question to Prime Minister Nehru:

“Had my son, a citizen of India, a member of the House of People, a leader of Opposition, no fundamental right to enter Kashmir without any obstruction from any quarter? “

 This question alone raised the level of national consciousness so high that no government, howsoever insensitive, could afford to maintain the status quo. Soon thereafter, the permit system was abolished and the need for establishing a just and meaningful relationship between Jammu and Kashmir and the rest of India gained both earnestness and urgency.

An able administrator, a skillful parliamentarian and a firm believer in building a strong and united India, Mookherjee stood out as a stalwart of the 1946-53 era. Despite differences in outlook and attachment to different political philosophies, Nehru and Mookherjee had respect for each other and remained in the same Cabinet for a number of years.

Mookherjee was the first to sense Abdullah’s hidden ambition to bring about a virtual sheikhdom of his own. In a letter written about four months before his death, he told Abdullah in no uncertain words:

“You are now developing a three-nation theory, the third being the Kashmir nation. These are dangerous symptoms and not good for your state or the whole of India”.

On May 21, 1952, he also posed a pertinent question to Nehru in Parliament:

“Are Kashmiris, Indians first and Kashmiris next, or are they Kashmiris first and Indians next, or are they Kashmiris first, second and third and not Indian at all? There was no reply. Mookerjee quipped: Nehru claims to have discovered India. But he has yet to discover his mind”.

Grant of special status to Jammu and Kashmir was anathema to Mookerjee.

He deplored governments lack of clarity on the subject. On August 7, 1952, he asked the Prime Minister:

“Was Sheikh Abdullah not a party to the Constitution of India ? Did he not accept this Constitution in relation to the rest of India, including about 562 Princely States? If it is good enough for all of them, why should it not be good enough for him in Kashmir?”

He once commented in the Lok Sabha:

” The Prime Minister said the other day that even if Kashmir had not acceded to India when it was attacked by raiders, the Indian Army, on humanitarian grounds, could have marched to Kashmir and protected the distressed and oppressed. If I make a similar statement, I am a communalist, I am a reactionary. I am a war-monger! “

Mookerjee cautioned Parliament: If you just want to play with the wind and say we are helpless and let Sheikh Abdullah do what he likes, then Kashmir will be lost. I say this with great deliberation, that Kashmir will be lost. Parliament, unfortunately, did not rise to the occasion. It let the then Prime Minister do what clearly had seeds for future troubles.

In the 2008 Assembly elections, 30,84,417 voters in the Jammu region elected 37 members of legislative Assembly (MLAs) at 83,263 apiece, while 32,60,663 voters in the Kashmir region elected 46 MLAs at 70,884 apiece, thereby giving disproportionately higher representation to the Valley in the state Assembly.

Likewise, the people of Ladakh, too, have been complaining that, instead of being made free sons of free India, they have been thrown at the mercy of the Kashmiris.

What is worse, Abdullah proved insincere even to Nehru who had travelled miles to accommodate him.

Nehru was shocked when he discovered that his loyal friend was seeking the support of the Anglo-American block for an independent Kashmir. He was left with no option but to have Abdullah removed from the scene. But much damage had already been done. And, unfortunately, the fallout of this damage still continues.

The author is a former governor of J&K and a former Union minister

http://www.deccanchronicle.com/editorial/op-ed/1953-kashmir-story-808

Timely Call for Debate over Article 370

Essay Published in “Kannada Prabha” daily, on the need for debate and abrogation of “Article 370” – By Praveen Patavardhan, English translation by Prashanth Vaidyaraj.

Narendra Modi in a recently held rally in Jammu questioned India’s first PM’s stand on Kashmir. He recalled the martyrdom of Dr. Shyama Prasad Mukherjee. Modi had asked for a debate on Article 370 of our constitution. As expected, the Congress, sections of the media which support the Congress have objected to such a debate.

As a new generation emerges, the way it thinks and acts changes too. When a topic concerning the nation is proposed and if the response is to either refuse to question or debate it, it will only raise eyebrows on the motive of such a response. Change is inevitable with time and a debate is certainly helpful. But when Modi proposed a debate on Article 370, editors of few newspapers received a flurry of reactions questioning Modi’s motive and suggesting that he had raised the issue only to create a vote bank of the Kashmiri Pandits.

Very few understand the travails of the Kashmiri Pandits and Kashmiri Hindus who faced grave situations. People have hardly read about those who lost their own homes and were forced to live the life of refugees in their own land. Coverage about them in our media is even less. While Kashmiri Pandits formed 20% of Kashmir’s population in 1947, they have been reduced to about 808 families i.e around 3500 people according to the 2010 census. How many among these would have registered as voters? Can they even be a vote bank which can assure victory in elections? Moreover, for those who assume that J&K has become a part of India only through Article 370, have a greater need for a debate on this.

If the events that occurred after Maharaja Hari Singh acceded to India through the Instrument of Accession are observed, it was only a particular sect of Muslims who harbored separatist tendencies. With few politicians and social activists supporting such separatist voices, the common man became the ultimate sufferer here.

With the division of the subcontinent into India and Pakistan, Sheikh Abdullah was only involved in machinations that would guarantee his power and position in either of the states. He was the output of the Aligarh Muslim University, which had created and nurtured Muslim Separatism, Muslim Nationalism and was the harbinger of the idea of Pakistan. Sheikh was a close associate of Nehru and was also close to the then Viceroy Lord Mountbatten. Sheikh had called for ‘Quit Kashmir’ agitation against the Maharaja while the British were still ruling. Even though he was arrested by the Maharaja, his association with Nehru helped him to come out of prison. After the accession of J&K, the Maharaja had reluctantly handed over the authority to Sheikh as per the directions of Nehru. But once at the helm of affairs, Sheikh Abdullah had made a provocative speech where he has said,” We have snatched the crown of Kashmir from dust. We are now not concerned about our accession to either India or Pakistan. We demand complete freedom”. There are a few points worth pondering about in his speech:

1) Dust – This was in reference to the “Dogra” royalty that was ruling Kashmir

2) Maharaja had already signed the treaty of accession. Kashmir had become a part of India.

3) The idea behind the demand of complete freedom was to make J&K an independent country.

Right from the day Pakistan was formed, the Pakistani troops aided by tribal raiders had invaded and forcefully taken over “Gilgit” & “Baltistan”. These raiders who murdered, looted and ravaged Hindu women had illegally occupied large parts of our land in the process. As Sheikh Abdullah took over from the Maharaja, the raiders only increased their intensity of attacks and butchered Hindus of Mirpur, Kotli and Bhember. It was then that Sardar Patel who was the Home Minister deputed the Army to face the situation. The Army which was surging ahead towards Gilgit, Baltistan to free them from Pakistan’s illegal occupation was unceremoniously held back by Sheikh Abdullah. When General Paranjape had complained about this to Nehru, all he got in return was that he has to listen to Sheikh! What prompted Nehru to take such a stance is not clear. Was this due to the first steps Nehru took towards creating a Muslim vote bank or due to his unfailing admiration of Sheikh?

Nehru, who acted unflinchingly as Sheikh dictated, and some of his cabinet colleagues faltered next in the implementation of Article 370. It is said that the said article had no mention in the first version of the constitution. There was hardly any discussion on Article 370 when it was proposed by Gopalswamy Ayyangar in the constituent assembly. When a debate took place in the Congress Working Committee, it was only Maulana Abul Kalam Azad who stood by Gapalswamy Ayyangar. Ambedkar, who was the Law minister, had this to say about Sheikh:”I as the law minister working towards the mammoth task of framing the constitution of India, will not dishonor my country. You do not wish to give the authority of J&K to India but yet you claim you want equal rights for the Kashmiris…”. Sheikh was in no mood to relent. Instead of placating Sheikh against his demands, Nehru indulged in cuddling him further. The other Congress leaders agreed to include Article 370 only to pacify Nehru. But many including Sardar Patel, Ambedkar and the then President Babu Rajendra Prasad did not think this to be right. Dr.Shyama Prasad Mukherjee had vehemently opposed the Article 370 and granting special status to J&K through it. Dr.SP Mukherjee had launched an agitation against the arrogant decree which restricted even the President of India in Kashmir without the permission of the PM of Kashmir, by roaring that ‘A single country can’t have two constitutions, two prime ministers, and two National Emblems’ and had lunged towards Kashmir. Infact, Dr.Rajendra Prasad had written to Nehru quoting, “What will you gain by implementing this article? Is the assembly of J&K more important than the President of the country?” But Nehru never came out of his self-aggrandizing sheath.

Article 370 was included in the Constitution as a temporary and transitional measure only to mitigate the then prevalent circumstances. It indirectly suggests that:

  • J&K can choose to have its own Constitution.
  • India will govern J&K only in matters of Defence, Foreign Affairs, Communications and Allied Matters.
  • India cannot impose Legislations on J&K without the consent of J&K government.

Do you think that the above provisions will convey that J&K is an integral part of India? Aren’t the separatists using the same provisions to further their agenda? Event this separatism is being fueled only in the Kashmir valley. Please remember that this is only the voice of 15% of the state who are Sunni Muslims. Of the 444 articles in our constitution, only 260 articles are applicable to J&K as of 2013.

Sikhs are a minority in our country. But in Punjab they are not deemed as minorities. They do not get the benefits of a minority in the state. It’s a different story in Kashmir. Even though J&K has 58% Muslims, they are deemed as minorities and accrue all the benefits. The real minorities here are the SCs and STs. They did not have any reservations till 1991, after which they got reservations only in education and jobs. They do not have any reservations in politics and does not seem that they will get it in the future either.

The debate over this injustice meted out to the people of J&K has to happen.

Let Article 370 be abrogated.

Article

Source: Article published in Kannada Prabha, 9th December 2013.

Wonderful Poem by Prashanth Vaidyaraj, equally great translation into Kannada by Satya Narayan:

English