In case of State Bank of India v. Santosh Gupta and Anr. Etc.(2016), Supreme
Court clearly held that Jammu and Kashmir is not sovereign and Constitution of
Jammu and Kashmir is subordinate to Constitution of India.
Before August, 1947 Indian Territories were governed by Britishers. Those
territories which were governed by Britishers directly called British India. In
British India there was no role of Indian kings or Nawabs. Indian territories
governed by Britishers indirectly were governed by kings or Maharaja or Nawabs
directly. Such territories were called Princely States.
These were 565 Princely
States. British India converted into Dominion of Pakistan and Dominion of India
on 14th and 15th August, 1947 respectively. Dominion of India converted into
Union of India on January 26, 1950.
According to Mountbatten Plan it was declared that British India would be
divided into two parts, namely-
(i) Dominion of India &
(ii) Dominion of Pakistan.
Following the Mountbatten Plan, Independence of India Act, 1947 was passed by
British Parliament. Principle of Lapse of Paramountcy was enshrined in section
7 of Indian Independence Act, 1947. According to this section, after 15th August
all treaty, agreement, accord with any Indian States shall be lapsed, and it
shall be treated that there were no agreement with any princely states. Three
options were given for Indian States. These options were either to choose India
or Pakistan or to be an independent country.
Instrument of Accession becomes a document which contents conditions to join a
country. This Instrument was prepared by Mr. V. P. Menon.
(1) Pre-Constitutional Political and legal history
Hari Singh – Hari singh was born on 23.sep.1895 at the palace of Amar Mahal
Jammu, the only surviving son of Raja Amar singh Jamwal, the brother of
Maharaja Pratap Singh, the then Maharaja of jammu and Kashmir. In 1903, Hari
singh served as page of honor to Lord Curzon at the grand Delhi Durbar. At the
age of 13 he was sent to Mayo College of Ajmer. Mr.Maharaja Hari Singh (1895
-1961) was king of Jammu and Kashmir during 1925-1961. Lord Louis Mountbatten
tried to make Hari Singh understand to join either India or Pakistan in June
1947.
But Mr. Ram Chandra who was the then Prime Minister and advisor of king
was not interest to accept such suggestions and Maharaja Hari Singh decided to
keep Kashmir as an independent nation. Up to August 15, 1947 he neither joined
Dominion of Pakistan nor Dominion of India. In this way Kashmir became a
sovereign nation. Although, Maharaja Hari Singh had signed ‗Instrument of
Accession‘ on October 26, 1947 but Instrument of Accession was accepted on
October 27, 1947. It lost its sovereignty on October 27, 1947 on which date
Instrument of Accession of Kashmir was accepted by Mountbatten, Governor General
of India.
Sheikh Mohammed Abdullah – Mr. Sheikh Mohammed Abdullah completed M.Sc. from Aligarh
Muslim University in 1930. He started to agitate against king and formed a Party
which was known as All Muslim Conference on October 16, 1932. Sheikh was
president of this Party. He changed his mind and thought to include person of
all religions. He realized that the actual fight was not against Hindu king.
Actual fight was against dictator king. So All Muslim Conference converted into
National Conference on June 11, 1939.
He started a movement for abolition of
kingship in 1946. He was arrested. He was released on September 19, 1947. He and
his supporters played vital role in support of Indian Army at the time of attack
over Kashmir by Pakistan. He was very popular leader. He accepted concept of
secularism and socialism. So Mr. Jinnah and Muslim League were unable to play
any role in Kashmir. He played vital role as a leader in politics of Jammu and
Kashmir.
War between Pakistan and Kashmir (October 22, 1947 - October 26, 1947)
On October 16, 1947, Pakistan broke Standstill Agreement with Kashmir and
stopped supply of grains, oil etc. and train services. Mr. Md. Jinnah wanted to
use force for acquiring land of Kashmir. Pakistan with help of tribal militias
attacked over Kashmir on October 22, 1947. At this time Kashmir was sovereign.
Kashmiri Muslim Army who was serving king joined hands of Pakistani invaders.
Brigadier Rajendra Singh stopped them from entering into Uri by blasting bridge
and stopped them for two days. He sacrificed his life but played a vital role to
save Kashmir. After two days (October 24, 1947) Pakistani invaders entered into
Uri and captured Hidro -Power Station.
They cut electricity of Kashmir. They had
reached in Baramulla which was 54 kilometers from Srinagar. But invaders started
to murder, rape, loot etc. of all persons irrespective of religion, race, caste
sex etc. in two days. King Hari Singh got time to rethink his decision. Hari
Singh requested from Dominion of India to save Kashmir on October 24, 1947. On
25 October, Memon met new Prime Minister Mehar Chand Mahajan and King. He
suggested king to go Jammu after leaving Kashmir.
Following the suggestions Hari
Singh ran to Jammu. Memon, Prime Minister Mehar Chand Mahajan and some army
officers leaved Kashmir in night. On October 26, 1947, Pakistani invaders
attacked over Kashmir. Lord Louis Mountbatten was not ready to save Kashmir
unless King decides to join Dominion of India because at that time Kashmir was
an Independent country. In this meeting Mr. Memon explained ground report of
Kashmir. After Meeting of Defence Committee, Memon, Prime Minister Mehar Chand
Mahajan went to Jammu and met Hari Singh. Hari Singh signed on ‗Instrument of
Accession‘ on the same date i. e. on October 26, 1947.
Sign on Instrument of Accession by Maharaja Hari Singh on October 26, 1947
October 26 is historical date in the history of Kashmir. On this date Maharaja
Hari Singh signed Instrument of Accession‘ and decided to join Dominion of
India. Mountbatten, Governor General of India accepted this ‗Instrument of
Accession‘ on October 27, 1947. After sign on Instrument of Accession‘ by
Mountbatten, Jammu &Kashmir became part of Dominion of India and lost its
sovereignty. Now it was obligation of India to save the Kashmir. Again meeting
of Defence Committee was held and it was decided to send the army in early
morning to save the Kashmir. In this meeting Mountbatten proposed for plebiscite
in Kashmir after reinitiation of peace and security. Mr. Patel and Mr. Nehru
gave implied consent. This Instrument of Accession was in no way different from
executed by some 500 other states. It was unconditional voluntarily and
absolute. It bound the Jammu & Kashmir legally and constitutionally.
First war between India and Pakistan (27 October, 1947- January 1, 1949)
October 27, 1947 ‗Instrument of Accession‘ was signed by Mountbatten and Kashmir
became part of India. Attack over Kashmir after sign of ‗Instrument of
Accession‘ was attack over India. Early morning of 27 October, 1947 Lt. Col.
Deewan Ranjit Roy reached Kashmir with ‗Air Force‘. After this Indian forces
heavily attacked over Pakistani invaders. They started to run away. ‗Bharat Mata
Ki Jai‘(Victory of Mother India) slogan were chanted by everyone and everywhere.
War was continuing. Mr. Jinnah invited India for discussion in Lahore. Mr.
Mountbatten and Mr. Nehru were ready but Mr. Patel was opposing. Only
Mountbatten reached Lahore. Mr. Nehru did not go due to his health reasons. On
November 1, 1947, Mountbatten met with Jinnah in Lahore. Jinnah was saying that
accession was a cheating. Mountbatten supported India. It is the first official
meeting with India and Pakistan. Everything was going in favour of India. But
unfortunate things happened on November 2, 1947.
Announcement of Plebiscite in Kashmir by Mr. Nehru on November 2, 1947
Mr. Nehru did not know ground reality of Kashmir after Pakistani attack. He had
misconception about United Nations Organisation because he did not know
practical behaviors of permanent members of Security Council. Mr. Nehru had no
bargaining power with permanent members of Security Council. On November 2,
1947, without waiting result of Meeting of Mountbatten and Jinnah, Nehru
announced on ‗All India Radio‘ in Delhi for plebiscite in Kashmir and role of
United Nations on Kashmir issues under supervision of International Bodies like
United Nations Organization. First time plebiscite was suggested by Mountbatten
in Meeting of Defence Committee on 26 Oct. 1947.
But in the meeting condition
was that plebiscite would be conducted after restoration of peace and security.
Nehru openly declared for plebiscite on November 2. Jinnah was not ready for
plebiscite at that time. He feared that Kashmir may join India under leadership
of Sheikh. Even USA and UK knew that in case of plebiscite Kashmir would join
India. So USA and UK supported Pakistan for their interests. Mr. Nehru committed
wrong by sending plebiscite issues in UNO. At that time plebiscite should have
been conducted without interference of UNO. Nehru realized this later on. After
this Kashmir issues became international issues. Later on by interference of
Security Council cease fire occurred and Pakistan have half part of Kashmir till
now.
Plebiscite was completed in Jammu & Kashmir in 1957. Members of Constituent
Assembly were representing the Public of Jammu & Kashmir. They were elected by
public by casting votes. They expressed their views through Constitution of J&K
which came into force on January 26, 1957. Article 3 of the Constitution of J&K
clearly says that ‗The State of Jammu and Kashmir is and shall be an integral
part of the Union of India. Article 147 says no change can be done in Article 3
of the Constitution.
(1) Creation of POK/LOC on January 1, 1949
After announcement of Mr. Nehru on November 2, 1947 Kashmir‘s issue was referred
to UNO. India raised this issue in Security Council by using Article 35 of the
Charter of the United Nations Organization and complained against
Pakistan.United Nations offered for cease fire on August 13, 1948. Indian Army
was continuously acquiring land of Kashmir from Pakistan. Jinnah lost his mental
control. It was the first defeat of Pakistan.
Due to intervention of UNO, on 1st January 1949, cease fire between India and
Pakistan was declared. At the time of cease fire Indian Army had thrown
Pakistani Army from Kargil and Dras but remaining part was in the hand of
Pakistan Army. Land held by Pakistan is called Pakistan occupied Kashmir (POK).
Cease fire line on January 1, 1949 is called
Line of Control.
(2) Post-Constitutional political & legal history
On 25 January, 1950, Yuvraj Karan Singh authorized by Maharaja announced that
Constitution of India must be adopted by Constituent Assembly of the States only
those provisions which were related to Jammu and Kashmir. Remaining part of
Constitution of India came into force on January 26, 1950. Constitution
(Application to Jammu and Kashmir) Order 1950 was issued by President by using
power conferred by Article 370(1) on January 26, 1950.
Constitution of Jammu and Kashmir
The terms of the proclamation of the Maharaja on March 5, 1948 in regard to the
convening of a National Assembly did not meet the requirements of the situations
prevailing at that time. Yuvraj Karan Singh issued proclamation for new
Constituent Assembly.
On April 20, 1951 Yuvraj Karan Singh s/o Maharaja Hari Singh issued a
Proclamation for constituting a Constituent Assembly for purposes of framing a
Constitution for the State. The Constituent Assembly consisted of seventy-five
members. National Conference won all the 75 seats in direct election on the
basis of adult franchise under leadership of Sheikh Abdullah.
The first meeting
of the J&K Constituent Assembly was held at Srinagar on October 31, 1951.
According to preamble of Constitution of J&K, Constitution of the State was
adopted and enacted on November 17, 1956.
The last session of the Constituent
Assembly was held on January 25, 1957. Constitution of Jammu & Kashmir came into
force of January 26, 1957. January 26 is also celebrated as republic day of
India. January 26 was chosen for enforcement of Constitution of J&K to show
unity with India. Total sections are 158 and seventh schedules and Appendix.
First Schedule has been omitted Shri N. Gopalaswami Ayyangar presented clause
306A (Now it is known as Article 370) in Constituent Assembly on October 17,
1949.16 It was introduced due to absence of peace and security in J&K. It was
accepted in form of interim system. Shri N. Gopalaswami Ayyangar elaborated each
provision in detail. Clause 306A became Article 370 after the Commencement of
the Constitution of India. Article 370 came into force on January
26,1950.(please refer article 370).
Meaning of
Government of the State.
Meaning of Government of the State is very important. Parliament can make laws
only with consultation or concurrence of the Government of the State. In the
Constituent Assembly from the very beginning Explanation was added to define
‗Government of the State.‘ Explanation added in clause 306A (now article 370)
is For the purposes of this article, the Government of the State means the
person for the time being recognised by the Union 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.†This explanation was accepted in article 370 of the Constitution of India
with minor modification....recognised by Union was replaced by recognised by
President in Article 370.
President has power to make Order under article 370 (1). Amendment by
Parliament is not necessary. In 1952, the Constituent Assembly of J&K , on the
recommendations of the Basic Principles Committee, abolished the hereditary rulership and substituted in its place an elected head, designed
Sadar-i-Riyasat.23 It became necessary to change the definition of the
Government of State and Explanation was modified. In 1952 modification was done
in Explanation by order of President of India on the recommendation of
Constituent Assembly (First meeting on October 31, 1951- Last meeting on January
25, 1957) of J&K. Order was effective from November 17, 1952.
Substituted explanation is following-
Explanation For the purposes of this
article, the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of
the State as the Sadar-i-Rayasat of Jammu and Kashmir, acting on the advice of
the Council of Ministers of the State for the time being in Office.â€
In 1965 post of Sadar-i-Rayasat and Prime Minister was substituted by Governor
and Chief Minister respectively. This was done by the Constitution of Jammu and
Kashmir (Sixth Amendment) Act, 1965. Post of Sadar-i- Rayasat was substituted by
Governor from Constitution of Jammu and Kashmir but consequential amendment was
not done in Article 370. Jammu and Kashmir Preventive Detention (Amendment) Act,
1967 was assented by Governor. It was challenged that Governor had not been
mentioned in Article 370. So this Amendment was unconstitutional. Constitutional
Bench of Supreme Court in the case of
Mohd. Maqbool Damnoo v. State of Jammu and
Kashmir held that no difficulty in holding that article 370 (1)
and article 370 (1) (d) place no limitation on the framing or amendment of the
Constitution of Jammu and Kashmir. If there is a limitation it must be found in
the Constitution of the State Section 147 of the Constitution of Jammu and
Kashmir itself provides that under that section the Indian Constitution cannot
be amended. In this case the Court held that the Amending Act was validly
assented to by the Governor.
According to section 35 of the Constitution of Jammu and Kashmir all functions
of the Governor except those functions mentioned in sections 36, 38 and 92 shall
be exercised by him only on the advice of the Council of Ministers with Chief
Minister at the head.
Final conclusion is that in present time Government of the State means Governor
who acts only on the advice of the Council of Ministers with Chief Minister at
the head. Jammu and Kashmir has adopted Parliamentary form of Government.26 So
final powers are in the hand of Legislative Assembly of Jammu and Kashmir.
(Application of other provision of the Constitution subject to exceptions or
modifications with consultation or concurrence as the case may be-Article 370(1)
(d)
Meaning of Modification- modification has been interpreted in widest
amplitude. Article 367 lays down that, unless the context otherwise requires,
the General Clauses Act, 1897, shall apply for the interpretation of the
Constitution. Therefore section 21 of the General Clauses Act, under which a
power to issue a notification or order includes a power to add, amend, vary or
rescind it, is applicable to the power of the President under Art. 370.
Puran Lakhanpal v. President of India and Others (1961) - Power of President to
make an Order to modify the Constitution was challenged in
Puran Lakhanpal v.
President of India and Others (1961). By the Constitution (Application to Jammu
and Kashmir) Order, 1954 method of election for six seats in Lok Sabha from J&K
was changed from direct election to indirect election. This Order had been
issued by President with the concurrence of the Government of J&K under Article
370 (1). Constitutional Bench of Supreme Court held that President has such
power because essence of election still persists.
Supreme Court held, -The
word
modification used in article 370(1) (d) must be given the widest meaning
in the context of the Constitution and in that sense it includes an amendment
and it cannot be limited to such modifications as do not make any -radical
transformation.
(1) Word modification as used in article 370 was interpreted with the help of
article 367 read with section 21 of General Clauses Act, 1897.31 Wider
interpretation was done.
(2) By Constitution (Application to Jammu and Kashmir) Order, 1954 a proviso
was added after clause (2) of Article 368. This proviso is - Provided further
that no such
amendment shall have effect in relation to the State of Jammu and Kashmir unless
applied by order of the President under clause (1) of article 370.‖
(3) Any amendment made under article 368 cannot be applied to J&K without Order
of President made after concurrence of Government of J&K under article 370.
Article 368 does not automatically applicable to J&K.
(4) Article 370 authorizes the President to modify a Constitutional provision
not only when it is applied to the State for the first time, but even
subsequently after it has been applied.
(5) Meaning of modification was accepted as was laid down in Puran Lakhanpal Case,
1961
(6) In this case Supreme Court clearly said, “It is thus 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. 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. Indeed, this is recognized
by Section 6 of the Jammu & Kashmir Constitution.â€
Constitution (Application to Jammu and Kashmir) Order 1950-
President, by using the power conferred by clause (1) of article 370, in
consultation with Government of J&K has made the Constitution (Application to
Jammu and Kashmir) Order 1950.This Order was made on January 26, 1950 and it
came on the same date. In this Order some items mentioned in Union List were
declared as corresponding matters of Instrument of Accession. Some other
provisions were also declared on which Parliament can make laws.
Delhi Agreement, 1952
An agreement between Pt. Jawahar Lal Nehru and Sheikh Abdullah was concluded in
July 24, 1952 which is known as ‗Delhi Agreement‘. By this Agreement some
consciousness were made between both leaders. These are (1) Internal autonomy
was accepted (2) State Legislature was authorized to make laws on state subjects
who had gone to Pakistan due to communal violence of 1947 if they return Kashmir
(3) Pardoning powers were given to President (4) State flag along national flag
was allowed. (5) Sadar-i-Riyasat must be elected by the State Legislature.
Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1952
The President by using the powers conferred by clause (1) of Article 370 of the
Constitution of India, in consultation with the Government of the State of Jammu
and Kashmir made the Order Constitution (Application to Jammu and Kashmir)Second
Amendment Order, 1952. It come into force on November 17, 1952. By this Order
Rajpramukh was replaced by Sadar-i-Riyasat of Jammu and Kashmir. Sadar-i-Riyasat
was elected person.
Removal of Sheikh Abdullah as Prime Minister and Bakshi Ghulam Mohammad new PM-
Due to pressure of Mr. Nehru, Mr. Karan Singh was elected as first
Sadar-i-Riyasat. Delhi Agreement, 1952 was very dangerous for whole country.
Agitation started against this. Dr. Syama Prasad Mukharji, N.N. Khare and
Sucheta Kriplani vehemently criticized the Delhi Agreement.
Sheikh Abdullah, instead of implementing the Agreement started advocating
secession, which would make a Kashmir an ‗independent state‘.It was inflammatory
rumours that USA was backing for independence of Kashmir. Rift occurred in
cabinet.
Sheikh Abdullah who was holding the post of Prime Minister since March 5, 1948
was dismissed by Sadar-i-Riyasat Mr. Karan Sing on August 8, 1953 on the ground
that he had lost his majority in the House. He was not given chance to prove
majority. On August 9, 1953, Sheiks was sent to jail in ‗Kashmir Conspiracy
case‘. Bakshi Ghulam Mohammad who was very popular leader in Kashmir and he was
opposing policy of Sheikh was appointed as Prime Minister of Jammu and Kashmir
on August 9, 1953.
(2) Constitution (Application to Jammu and Kashmir) Order 1954
New Delhi negotiated with Jammu and Kashmir in January, 1954. At that time
President of India and Prime Minister of India were Mr. Rajendra Prasad and Mr.
Jawaharlal Nehru respectively and Sadar-i-Riyasat and Prime Minister of Jammu
and Kashmir were Mr. Karan Singh and Mr. Bakshi Ghulam Mohammed respectively.
After long discussion negotiation was concluded. Constituent Assembly of J&K
ratified the State‘s Accession to India in February 1954.In exercise of the
powers conferred by clause (1) of article 370 of the Constitution, the
President, Mr. Rajendra Prasad with the concurrence of the Government of the
State of Jammu and Kashmir, on the advice of the Government of Pt. Jawaharlal
Nehru made an Order which came into force on May 14, 1954. This Order is known
as Constitution (Application to Jammu and Kashmir) Order 1954.
By this Order several new provisions were accepted in the Constitution of
India and consequently several provisions of Indian Constitution were extended
to Jammu and Kashmir. After October 26, 1947 acceptance of Order was most
beneficial. Benefit of this Order must be evaluated according to circumstances
prevailing during 1947 to 1954. It was applauded by everyone. By this Order law
making powers of Parliament were extended on several other subject matters. If
you compare this Order in comparison to other State you may feel nervous. But
main problem aroused due to delay of acceptance of Instrument of Acceptance and
by sending this issues in UNO. One of the Controversial Article i.e. Article 35A
came from this Order.
Article 35A- Saving of laws with respect to permanent residents and their
rights
Article 35A contents Non-obstante Clause. It declared that neither previous nor
subsequent laws enacted by Legislature of J&K shall be void on the ground of
violation of any provisions of the Constitution of India if it is related to
following matters-
(1) Definition of permanent residents,
(2) conferring on special rights and
privileges or imposing upon other persons any restrictions as respects-
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) Right to scholarships and such other forms of aid as the State Government
may provide.
Such legislation shall be valid notwithstanding that it is inconsistent with the
fundamental rights conferred by the Constitution upon the other citizens of
India, such as discrimination on the
ground of place of birth (article 15(1), equality of opportunity for
employment(article 16(1), and right to reside and settle in any part of the
territory of India (article 19(1)( e) , etc.40
Section 6, Permanent residents
Section 6 of the Constitution of Jammu and Kashmir defines ‗Permanent
residents‘. There are three clauses of this section. First clause related to
Citizen of India, second clause is related to any person who migrated to
Pakistan after March 1, 1947 and returns to J&K. and in third clause ―State
Subject of Class I or of Class II‖ shall have been defined.
According to section 10 of the State Constitution the permanent residents of the
State shall have all the rights guaranteed to them under the Constitution of
India.
Parkash v. Mst Shahni and others
In 1965 Jammu and Kashmir High Court decided a case which involved issue of
permanent residence. According to decision of this case in case of marriage of
girl who is permanent resident with a boy who is non-permanent resident , such
girl will lose the status of permanent resident of J&K. because her domicile and
nationality changed according to her husband. This decision was supporting
patriarchal society. This decision was overruled in 2002.
What is the Status of Article 35A now-
Article 35A stem from art.370, and was introduced through a presidential order
in 1945. Art.35A does not appear in the main body of the constitution Art.35 is
followed by Art36 but appears in appendix –l. Art.35A empowers the Jammu and
Kashmir legislature to define the permanent residents of the state, and their
special rights and privileges. Monday's (05.Aug.2019) Presidential order has
extended all provisions of the constitution to Jammu and Kashmir , including the
chapter on Fundamental Rights. Therefore, the discriminatory provisions under
35A are now unconstitutional. The President may also withdrawal 35A.This
provision is currently under challenge in the Supreme Court of India on the
ground that it could have been introduced in the Indian constitutionally
through a constitutional amendment under Art368, and not through a presidential
order under 370. However, Monday’s presidential order, too has amended article
367 without following the amending process…
Note lll-
The wife or a widow of the State Subject of any Class shall acquire the status
of her husband as State Subject of the same Class as her Husband, so long as she
resides in the State and does not leave the State for permanent residence
outside the State.
Note III is applicable to only those wife or widow who is non- permanent
resident of J&K and marries a permanent resident of the state. But after getting
marriage they have acquired status of her husband and became the permanent
resident of Jammu and Kashmir. If they leave J&K for permanent residence outside
the State they will lose their status. This note is not applicable those women
who have become permanent resident by birth. So if such women get marriage with
non-permanent resident of J&K will not lose status of ‗permanent resident.
Decision: J&K High Court held that a daughter of a permanent resident marrying
a non - permanent resident will not lose the status of permanent resident of the
state of Jammu and Kashmir.
Decision of this case was challenged in Supreme Court by State Government. But
it was withdrawn due to fear of approval of decision of Supreme Court. It was
decided to change this decision through enactment of laws by State Legislation.
Permanent Residents (Disqualification) Bill, 2004 was introduced in the Assembly
to change the decision of J&K High Court in 2002.These issues have been
challenged in Supreme Court by ‗Public Interest Litigations.
Abolition of Article 370
Article 370 was introduced for a time being. It is temporary provisions in the
Indian Constitution.
Article 370 (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.‖
According to Article 370 (3), President has been authorized to cease the
operation of Article 370 in whole or with modification by public notification.
But this power of President is conditional rather than absolute. This power is
subject to the recommendation of the Constituent Assembly. Constituent Assembly
was in existence during 1951 -1957 (First meeting on October 31, 1951-Last
meeting on January 25, 1957). At present time this Constituent Assembly does not
exist. So Article 370(3) is not operative.
In these circumstances recourse have to be taken of Article 368. But it must be
remembered that Article 368 does not apply automatically unless President make
an order after consultation with or concurrence of the State
Government.45 Article 368 does not curtail the power of the President under
Article 370.46 So final power is in the hand of Government the Government of
State of Jammu and Kashmir.
Relation between Constitution of India and Constitution of Jammu & Kashmir
Article 370 deals temporary provisions with respect to Jammu and Kashmir.
According to section 3 of the Constitution of Jammu & Kashmir, 1957 ‗the State
of Jammu and Kashmir is and shall be an integral part of the Union of India‘.
Section 3 is the basic feature of Constitution of Jammu & Kashmir. According to
section 147 of the Constitution of Jammu & Kashmir any Bill or Amendment shall
not be moved in either House to change section 3 or the provisions of the
Constitution of India as applicable, in relation to the State..
The Constitution (Application To Jammu And Kashmir) Order, 2019
Union Minister for Home Affairs, Shri Shah, introduced two bills and two
resolutions regarding Jammu & Kashmir (J&K) today.
These are as follows:
1. Constitution (Application to Jammu & Kashmir) Order, 2019 {Ref. Article
370(1) of Constitution of India} – issued by President of India to supersede the
1954 order related to Article 370.
2. Resolution for Repeal of Article 370 of the Constitution of India {Ref.
Article 370 (3)}
3. Jammu & Kashmir (Reorganisation) Bill, 2019 {Ref. Article 3 of Constitution
of India}
4. Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019
Government is moving a resolution which would repeal the provisions under
Article 370 of the Constitution of India, which granted a special status to the
state of J&K. The provisions of Article 370 would cease to exist from the date
President of India issues a notification in this regard, after the
recommendation of the Parliament. Consequently, the Constitution of India would
get applicable to J&K, on par with other states/UTs of the country, the Minister
added.
Article 370 has prevented J&K to merge with India rather than being a basis of
its merger. The politics of vote bank has looted the youth of the state for over
70 years. I would call on the opposition members to debate and discuss on why
the benefits of development were not allowed to reach the common people of J&K
till now. Politics of religion must be avoided at all costs. Article 370 is
equally harmful for people of all religionsâ€, the Minister said.
Further, the Minister termed the provisions of Article 370 as discriminatory on
the basis of gender, class, caste and place of origin. The youth is being taken
for a ride by the political elite. This provision was temporary in the first
place and it has to go in the larger interest of the people of J&K, he added.
Under article 370(3), there is a provision that President, on recommendation of
the Parliament, has the power to amend or cease the implementation of article
370, through a public notification. This has already happened on a number of
occasions in the past. The Home Minister pointed out to the opposition that
everyone knows how the article 370 is hampering the development of the people of
the state.
the repeal of the Article 370, doors to private investment in J&K would be
opened, which would in turn increase the potential for development there.
Increased investments would lead to increased job creation and further
betterment of socio-economic infrastructure in the state. Opening of buying of
lands would bring in investments from private individuals and multinational
companies and give a boost to the local economy, as opposed to the apprehensions
raised by those opposing this historic step, he added.
Home Minister remembered the martyrdom of civilians and soldiers who have lost
their lives during 1989-2018. He said that had article 370 would not been there,
these people wouldn't have lost their lives. Refugees who came from Pakistan
after partition did not get citizenship till now. They cannot become councillors
in the state. This has been a historical injustice to these people. As opposed
to this, in rest of India two Prime Ministers were elected from those refugees.
because of article 370, democracy never took root in J&K, corruption
flourished, widespread poverty took root and no socio-economic infrastructure
could come up. It is the root cause of terrorism. Further, 73rdand
74thAmendments to the Constitution could not be applied to J&K due to article
370. Panchayat and Nagar Palika elections could not be held. Who is responsible
for taking away democratic rights of the people of J&K which were available to
other citizens of India? It was Article 370.Panchayat elections recently held
were conducted successfully and peacefully. The people want democracy and not
bloodshed., the Minister said.
Talking about economic backwardness in J&K, article 370 impedes people from
outside the state to do business there. Absence of economic competition has
prevented development and corruption flourished.Land prices are at a rock bottom
because no one can buy land there. No industry, including tourism, is allowed to
flourish there. People remain poor in perpetuity despite presence of abundant
economic opportunities for the local populace. Rampant corruption is present,
thus preventing external investment in the state.
Rebutting the apprehension that removing article 370 would destroy Kashmiri
culture, Shri Shah said that all states have preserved their culture and
language after becoming a part of the Union of India. How does article 370
protect JK on this aspect, he asked. It is only and only a political propaganda
that has blinded the youth of Kashmir into believing it for 70 years.“I assure
the youth of JK that give this government 5 year and it will become the most
progressive region in the countryâ€, the Minister said.
Daughters of the state marrying outside the state lose their rights to property.
It is so discriminatory to the women and their children. SC and ST people have
been discriminated against and have been deprived of reservation to political
offices. Despite knowing this a few people have been perpetuating this article
only for their political gains, the Minister said.
Shri Shah assured the House that if the Union Territory model works well, our
government would also consider giving J&K the status of state again. No
constitutional amendment would be required.
J&K would become a true part of India in letter and spirit once article 370 is
removed. The path to solution to all the problems of Kashmir goes through the
repealing of article 370. This step would stand strong and would pass the test
of legal scrutiny.
Article 370 was a temporary and transient provision, it had to
go. It only required political will, which only the present government had.
I
give a heartfelt appeal to all political parties to rise above political
considerations to join hand with the government to remove article 370. The
country wants this united as one, the Minister concluded, after which all the
resolutions and bills relating to J&K were passed.
Shri Amit Shah also introduced the Jammu and Kashmir (Reorganisation) Bill, 2019
making Jammu & Kashmir a Union territory with a Legislative Assembly,along with
Union Territory status to Ladakh without a Legislative Assembly.
Further, the
Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019 to amend the Jammu &
Kashmir Reservation Act 2004 was also introduced. This bill seeks to extend the
10% quota to economically weaker sections of society in J&K in jobs and
educational institutions. Both the bills were passed by Rajya Sabha unanimously.
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