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Jammu And Kashmir No More Special

Purpose of Memorandum
# Focus on Article 370,35A of Indian Constitution, why these articles comes in our Constitution and How Government deals with it in today’s scenario.
# Try to understand Article 3, Article 6, Article7, Article8, Article9, Article10 and Article147 of The Constitution of Jammu and Kashmir. And how Indian Government deals with same.

Facts

Legal And Political History of Jammu And Kashmir

Before August, 1947 Indian Territories were governed by Britisher directly or indirectly. Those territories which were governed by Britisher directly called ‗British India‘. In British India there was no role of Indian kings or Nawab. Indian territories governed by Britisher indirectly were governed by kings or Maharaja or Nawabs directly. Such territories were called Princely States / Native States. These were 565 Princely States / Native 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. According to this Plan Indian States (These are also known as Princely States / Native States) had three options namely-
(i) to choose Dominion of India, or
(ii) to choose Dominion of Pakistan , or
(iii) to be an independent country . Had the third option been accepted, Union of India had been divided into 566 parts.

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 become a document which contains conditions to join country. And this Instrument of Accession was prepared by V.P. Menon. If any Indian State signed it, it means that State had joined India. August 15, 1947 is known for power of transfer from British India to Dominion of India.

Mr. Hari Singh king of Jammu & Kashmir signed Instrument of Accession‘ on October 26, 1947, in Amar Palace, Jammu. Accession of Jammu & Kashmir may be discussed in two parts namely Pre-Constitutional political and legal history and Post-Constitutional political and legal history.

Pre-Constitutional Political and legal history
Hari Singh- 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 Kak 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- Mohammed Abdullah Sheikh (5 December 1905 – 8 September 1982) was a Kashmiri politician who played a central role in the politics of Jammu and Kashmir, the northernmost Indian state. Referred by his supporters as Sher-e-Kashmir (Lion of Kashmir), Abdullah was the founding leader of the Jammu & Kashmir National Conference and the 2nd Chief Minister of Jammu and Kashmir. He agitated against the rule of the Maharaja Hari Singh and urged self-rule for Kashmir. He accepted concept of secularism and socialism.

Sign on Instrument of Accession by Maharaja Hari Singh on October 26, 1947 and its acceptance on October 27, 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 Defense 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.

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. 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 Cargill 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 (LOC).

(2) Post-Constitutional political & legal history

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.

Legislation

Article 370 of Constitution of India

Shri N. Gopalaswami Ayyangar presented clause 306A (Now it is known as Article 370) in Constituent Assembly on October 17, 1949. 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. Wordings of article 370 are following -

Article 370 Temporary provisions with respect to the State of Jammu and Kashmir
(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 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 (370) shall apply in relation to that State;

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) or in the second provision 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.

Issues-
1. Has Article 370 been scrapped?
2. What is the Status of Article 35A?
3. What is Significance of Article 370?
4. What has changed in Jammu and Kashmir?
5. Can presidential order challenged in Supreme Court?

Discussion- (Jammu and Kashmir no More Special)

Has Article 370 been scrapped?

The Constitution (Application to Jammu and Kashmir) Order, 2019, issued by President Ram Nath Kovind in exercise of powers conferred by clause (1) of Article 370 of the Indian Constitution, has not abrogated Article370. While this provision remains in the statute book, it has been 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 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.” This is the first time that Article 367 (which deals with the interpretation) in respect of Jammu and Kashmir , and this amendment has then been used to amend 370 itself.

What is the Status of Article 35A Now

Article 35A stems from Article 370, and was introduced through a presidential order in 1954.Article 35A does not appear in main body of constitution-Article 35 is followed by Article 36 –but appear in Appendix-1. Article 35A empowers the Jammu and Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.

Presidential Order on 05.AUG.2019 has extended all provisions of Indian Constitution to Jammu and Kashmir, including the chapter of Fundamental Rights. Therefore the Discriminatory provisions under Article 35A are now unconstitutional.
(Article 6 of Constitution of Jammu and Kashmir talks about Permanent residents of Jammu and Kashmir.)

What is Significance of Article 370?

The most important feature of federalism in the United States was the compact between the 13 erstwhile British colonies that constituted themselves first into confederation and then into a federal polity under the country’s 1791 constitution. India’s Supreme Court in state of West Bengal V. U.O.I (1962) attached the highest importance to an “agreement or compact between states” as an essential characteristic of federation. In SBI V. Santosh (2016), the Apex Court accepted the presence of this compact for Kashmir.Article 370 was an essential facet of India’s federalism because, like the compact in the United States, it governed the relationship of the Union with Jammu and Kashmir. The Supreme Court has held federalism to be part of the basic structure of India’s Constitution.

The original draft of Article 370 was drawn up by the Government of Jammu and Kashmir. A modified version of the draft was passed in the constituent Assembly of India on may 27,1949. Moving the motion , N. Gopalwaswami said that if the accession was not ratified by a plebiscite, we shall not stand in the way of Kashmir separating herself away from India.

On Oct 17, 1949 Article 370 was included in India’s Constitution by the Constituent Assembly. However, the drafting of the Constitution ended on Nov26, 1949- Article 370 had been included before the Constitution was adopted.

Can Presidential Order be challenged in Supreme Court?

It will most likely be challenged. However, the Supreme Court will consider that Article370 does, indeed, give sweeping powers to the President. It might also take two to three years for a constitution Bench of the court to decide such a challenge.

The possible grounds of challenges could include the argument that the conversion of Jammu and Kashmir into a U.T is violation of article 3,as the Bill was not referred by the President to the state Assembly.

Also, can the constituent Assembly mean Legislative Assembly?

Are the Governor and state Government one and same?
The constitution relevance of the Instrument of Accession will also be examined by the court. Whether Article 370 was part of basic structure will likely be considered. The use of Article 367 in amending 370will also be examined.

How Central Demolished The Tunnel In One Stroke
Central Government on Monday (05.aug.2019) formally declared that Article 370 will cease to operate, they cease to operate that Article which already dead for all its practical purposes.
In supreme Court , the challenge to Article 370 of the constitution , filed in the form of Special Leave Petition by Kumari Vijayalakshmi jha, 2017 ( Kumari Vijayalakshi JhaV. Union of India &Anr on 11 April ,2017), raised on interesting issue before the Court.

Jha, whose prayer was first dismissed by Delhi High Court earlier, argued that Article 370 was a temporary provision which had lapsed with the dissolution of the J&K Constituent assembly on January 26, 1957. She also sought a declaration from the Supreme Court that the constitution of Jammu and Kashmir, in view of the lapsing of Article 370, was void, inoperative and ultra vires.

If what Jha claimed was correct , the Centre on Monday(05.08.2019), appears to have scrapped a nonexistent provision of the constitution. The maximum life of article 370, she claimed, was prescribed up to the existence of the J&K Constituent assembly, and with artilce370 ceasing to exist, after the dissolution of the state constituent assembly, it requires a formal declaration from the court to avoid any scope for ambiguity.

How Did Delhi High Court Dismiss Jha's Petition Earlier?
The Delhi H.C relied on Supreme Court’s Judgement in-
State Bank Of India V Santosh Gupta And Anothers, 2017,2SCC 538. The judgement in this case, heard by the bench of Kurain Joseph J. & R.F Nariman J., was delivered on Dec16,2017, and authored by Nariman J.

In Para11, the bench held that the state of Jammu and Kashmir, though a state within meaning of Article1 of the constitution of india, has been accorded with the special status from the very beginning because of certain events that took place at the time that the erstwhile rule of Jammu and Kashmir acceded to the Indian Union. (and these events had been set out in details in case of Prem Nath Kaul V. State of Jammu And Kashmir,1959).

Decision-
It was held in JHA’s case Delhi High Court rejected the Petition that argued Article 370 was Temporary and that its continuation was a fraud on the Indian Constitution.

Why This Move Is Correct
1. J&K Women’s Rights.
2. Dalit Rights.
3. Investment
4. Voting Rights to residents also, who settled here last few years.
5. Equal Rights to all Indian.
6. Security situation can be handled better.

Salient Feature of Jammu & Kashmir Reorganization Bill, 2019

Consequent to the promulgation of the Constitution (Application to Jammu & Kashmir) Order,2019, and with a view to change the geographical and political status of the present state of Jammu and Kashmir , the Parliament Passed the Jammu and Kashmir ( Reorganization) Bill,2019.once the bill gets the assent of the President, it will result in the formal bifurcation of the present state of Jammu and Kashmir into two successor Union Territories a UT of Jammu and Kashmir , and U.T of Ladakh.

According to Govt
1. The Ladakh division of the state of Jammu and Kashmir is geographically large but sparsely populated, with a difficult terrain and there has been a long pending demand of people of Ladakh to give it status of a UT.(it may be wrong)

2. The prevailing internal security situation and cross border terrorism in the existing state of Jammu and Kashmir.

Legislature and Executive-
Article239A of the Indian Constitution, which applies to the UT of Puducherry , shall also apply to the UT of Jammu and Kashmir. Thus for the UT of Jammu and Kashmir, there shall be a Legislature with a council of Legislature with a council of ministers However , the UT of Ladakh shall not have a Legislature.

What The J&K Reorganization Bill Means For Judiciary-

The Jammu & Kashmir Reorganization Bill, 2019 passed by Parliament on Tuesday(06.08.2019), bifurcates the state into union Territories of J&K and Ladakh.

This Reorganization will entail the following consequences as regards Judiciary-

# The High Court of Jammu & Kashmir will be a common High Court for U.T of J&K and Ladakh (section75).
# Judges of exiting H.C of J&K will continue in the High Court for both the UTs.
# The law in force in respect of procedure in HC of J&K will continue in the Common HC for the UTs.

Advocate General for UT of J&K

The Lieutenant Governor can appoint a person who is qualified to be appointed a judge of the High Court, to be Advocate –General for the Union Territory of Jammu and Kashmir.

The Advocate’s Act, 1961 has been amended to replace the Bar Council of Jammu and Kashmir with the Bar Council of Jammu and Kashmir, and Ladakh. It has been provided that the advocates enrolled with the Bar Council of State of Jammu and Kashmir and practicing before the HC of Jammu and Kashmir may continue to be members of new Bar Council.

Administration of the New U.Ts-

Both the UTs shall be administered by the President acting through the L-G., to be appointed by him under Article 239 of the Indian Constitution.

For the time being, the Governor of the existing State of Jammu and Kashmir shall become the Lieutenant Governor for both the UTs, and shall remain as such foe a period determined by the President of India. Thereafter , the President may appoint different Lieutenant Governors for the new UTs.

Laws-
One of the most significant changes that the bill brings is that it repeals 164 states Laws and makes 108 Central Laws applicable to both the UTs by omitting the words “except the state of Jammu and Kashmir “from the provisions of those Acts.

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.

Jammu And Kashmir After Article 370

1. No Dual citizenship.
2. Central law can directly apply.
3. No separate law for J & K.
4. Indian citizens from other state can buy property and land.
5. No Two flag.
6. Election after every 5 year.
7. Police will managed by centre.
8. Centre can declare financial Emergency under Article 360 of Indian Constitution.

Suggestions
To ameliorate the conditions of Jammu and Kashmir, researchers are giving following suggestions
(1) There is acute poverty and unemployment in J&K. Condition of education is another serious problems. On these issues State and Central Government should do some work seriously.

(2) No need to create confusion amongst people of Jammu and Kashmir. Article 370 must not be repealed without consciousness of public of Jammu and Kashmir.

(3) Merely repealing of Article 370 is not panacea of all problems. But those Presidential Orders and State laws which are against basic structure of the Constitution and humanity must be repealed. Article 35A must be repealed.

(4) Use of Military force is not final solution of J&K.

(5) National Parties are creating fear among people. Dividing society on the basis of religion is fatal for unity and integrity of nation. For creating fear or confusion on the basis of religion there is need of harsher punishment with speedy trial.

It is also responsibility of public of J&K to strength unity and integrity of India. Division only on the basis of religion is not justified. Most of the people were Muslim. Still Pakistan divided into two Parts. Principle of nation first must be accepted.

Conclusion
Humanity is above all. People of J&K are not exception of this. Acute poverty, unemployment education, poor health facilities, increasing offences, gender biasness and funding of Pakistan for terrorist activities are some issues must be solved immediately. National and Regional parties try to develop J&K. These Parties were always involved in creating and showing illusory problems and fears. Government opted the way for introducing this Bill is, wrong for a healthy Democracy.

We can say it as A Integration Without Integrity. in which way current Government use to Introduced this Bill, have a look-
On June20, 2018, under Article 92 of Constitution of J&K, the State was placed under Governor’s rule after the union ruling party withdrew support to its alliance partnership with PDP. 6 months later, in December 2018, Governor’s rule got converted into President’s Rule ( Article 356 of Indian Constitution).

Let us clear about the implication of these tactical manoeuvres of carefully transferring power from a democratically elected assembly, to Governor’s Rule and President’s Rule.

It implies that all the powers of the Government of the state are now vested in the Governor under the superintendence of P.M. Given these conditions of severe democratic deficit, the government wrote up an order scrapping Article370, sent it to itself for “concurrence”, and had it signed by the President.

And also in the light of Supreme Court’s Judgement, it is crystal clear that Jammu and Kashmir has special status for few reasons. The Above mention Bill is not referred by the President to the state Assembly is also a week zone.

Now its all upon Supreme Court that how Supreme Court deals with this Bill in the light of its own Precedents.

Table of Contents-
1. Jammu and Kashmir.
2. Facts.
3. Issues.(Article 370 and Article 35A), of Indian Constitution
4. The Constitution (Application to Jammu and Kashmir) Order,2019
5. Precedent cases of Hon’ble Supreme Court, and Delhi High Court.

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