Tag Archives: Article 370

Abrogation of Article 370 – Kashmir’s Past, Present and Future – Talk by Sushil Pandit

Summary of Sri Sushil Pandit ji’s talk on ” Abrogation of Article 370 – Kashmir’s Past, Present and Future ” in an interactive session organised by Aham Talks at Bhagyanagar (Hyderabad).

Ancient Kashmir is the land of many sages and rishis, known for it’s great texts. The invasion of the land by Muslim rulers was extremely unfortunate and disappointing. In 1339, Shah Mir became the first Muslim ruler of Kashmir, initiating the Shah Mir dynasty. Right from the start, persecution of Hindus began. Hindus living in the region were not allowed to wear jewellery, proper clothes and were treated as second class citizens. By the 14th century, Islam became the dominant religion in Kashmir. Both External and Internal factors were responsible for the plight of Hindus. The Hindus were liberal and tolerant and paved the way for Muslim rule in the past. After Independence, the Kashmiri Hindus became B grade citizens under Article 370 due to PM Nehru and Congress politicians.

Explanation of Article 370 abrogation

Article 370 isn’t completely “scrapped”, it still stays in Constitution of India only to affirm “Jammu and Kashmir is the integral part of India”, which is 370 (A) and rest of the parts are abrogated.

The Constitution (Application to Jammu and Kashmir) Order, 2019, issued by President Sri Ramnath Kovind “in exercise of the powers conferred by Clause (1) of Article 370 of the Constitution”, has not abrogated Article 370. While this provision remains in the statute book, it has been used to withdraw the special status of Jammu and Kashmir.

The Presidential Order has extended all provisions of the Indian Constitution to Jammu and Kashmir. It has also ordered that references to the Sadr-i-Riyasat of Jammu and Kashmir shall be construed as references to the Governor of the state, and “references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers”. Presidential Order has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights. Therefore, the discriminatory provisions under Article 35A are now unconstitutional.

This is the first time that Article 370 has been used to amend Article 367 (which deals with Interpretation) with respect to Jammu and Kashmir, and this amendment has been then used to amend Article 370 itself. Article 35A stems from Article 370, and was introduced through a Presidential Order in 1954. Article 35A does not appear in the main body of the Constitution – Article 35 is followed by Article 36 – but it appears in Appendix I.

 Demography

Demography in Jammu and Kashmir has a dangerous impact, ‘It is the elephant in the room’. In 1947, the Pandits were about 6% of the Kashmir Valley’s population. By 1950, their population declined to 5% as many Pandits moved to other parts of India due to the uncompensated land redistribution policy, the unsettled nature of Kashmir’s accession to India and the threat of economic and social decline.

Following the 1989 islamic insurgency, a great majority of Pandits felt threatened and left the Kashmir Valley to other parts of India. A large number settled in the Jammu Division of the State and the National Capital Region of India. Some emigrated to other countries entirely. By 2011, only an estimated 2,700-3,400 Pandits remained in the Kashmir Valley.

According to Indian government, more than 60,000 families are registered as Kashmiri migrants including some Sikh and Muslim families. Most families are resettled in Jammu, NCR and other neighbouring states.

Till now no govt, including the current govt, has raised the issue of demographics of Muslims and minorities in certain areas. There are no intellectual discourses on demographics. Kashmir issue and Article 370 was the resultant of ‘Demographic Imbalance’.

It took 70 odd years just diagnosing the disease; and now that the Govt. diagnosed and abrogated Article 370, it will now cure the Kashmir issue with development.

This is just a beginning. Lot of work to be done ahead before finally marking it a success!

Q&A

When will our `Exiled in our own Country’ status change? When time comes; nobody helped Kashmiri pandits during the exodus, and now no one would be necessary to invite the Kashmiri Hindus back to their Homeland. Hope it happens surely and sooner!

Development and restoration of temples in Kashmir would be ‘part of the plan’ and hopefully revival of Hinduism again in Kashmir.

Karan Singh and his sons are enjoying luxurious lives and selling all the temple lands in Kashmir valley. They say they can’t maintain the salaries of pandits and archakas in temples and temple amenities.

Nagaland and other North-eastern states have been accorded special provisions under Article 371(A-J), with the aim to preserve their tribal and indigenous culture. Article 371(A) states that no act of Parliament shall apply to the State of Nagaland in respect of the religious or social practices of the Nagas, its customary law and procedure, administration of civil and criminal justice involving decisions according to Naga customary law and ownership and transfer of land and its resources. In Himachal Pradesh, it is to regulate ownership and transfer of land in order to conserve the limited resources available for development and to ensure that the State preserves its identity.

 

End of Event Write up ; Summarised By Sri Sandeep Varanasi 

Addendum: 

Exodus and subsequent tragic events:

Prime ministers during 1989 to 1991 period –

  • Rajiv Gandhi —- 31 December 1984 till 2 December 1989
  • Vishwanath Pratap Singh —- 2 December 1989 till 10 November 1990
  • Chandra Shekhar —- 10 November 1990 till 21 June 1991

Union Home Ministers –

  • Buta Singh —- 12 May 1986 till 02 December 1989
  • Mufti Mohammad Sayeed —- 02 December 1989 till 10 November 1990
  • Chandra Shekhar —– 10 November 1990 till 21 June 1991
  • Shankarrao Chavan —- 21 June 1991 till 16 May 1996

Chief Ministers of Jammu & Kashmir –

  • Farooq Abdullah —- 7 November 1986 – 19 January 1990
  • (Governor’s rule) —- 19 January 1990 – 18 July 1990
  • (President’s rule) —- 19 July 1990 – 9 October 1996

 

Timelines:

14th September 1989-JKLF group targeted political activists, Pandit Tika Lal Taploo is shot dead by armed men outside his residence.

On 4th January 1990, a local Urdu newspaper, Aftab, published a press release issued by Hizb-ul-Mujahideen, asking all Pandits to leave the Valley immediately. Another local paper, Al Safa, repeated this expulsion order.

19thJanuary1990 –The worst nightmares of Kashmiri Pandits living in the valley became a tragic reality on that fateful day. Screaming from loud speakers and crowded streets was a message for the Sikhs and Hindus living in Kashmir. Massive crowds assembled in mosques across the valley, shouting anti-india, anti-pandit slogans. The exodus of Kashmiri Pandits began. In the next few months, hundreds of innocent Pandits are tortured, killed and raped. By the year-end, about 350,000 Pandits have escaped from the Valley and taken refuge in Jammy and elsewhere. Only a handful of them stayed back.

The State Government had been so extensively subverted that the skeletal staff of the administration at Srinagar (the winter capital of the State had shifted to Jammu in November 1989) decided not to confront the huge mobs.

March 1997Terrorists dragged out seven Kashmiri Pandits from their houses in Sangrampora village and gunned them down.

January 199823 Kashmiri Pandits, including women and children, shot dead in cold blood in Wandhama Village.

March 2003- 24 Kashmiri Pandits, including infants, brutally shot dead in Nadimarg Village.

Advertisements

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.

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