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The Emergence of New Jammu And Kashmir

Indias independence on August 15, 1947 was a great event, India got freedom from British Imperialism and became a Sovereign Democratic Republic. It was a great historical event because all mankind came together to form single nation.

Speaking in the constituent Assembly of India, Pandit Nehru the first Prime minister of India Said: -Long year ago we made a Tryst with destiny, and now the times comes when we shall redeem our pledge, not wholly or in full measure but very substantially. At the stroke of the mid night hour, when the world sleeps, India will awake to life and freedom.( Pt. Nehru speech in the constituents Assembly August 14, 1947)

Before Analysing the present event of abrogating the Article 370 and 35A, we must understand the fact that India’s independence has brought big challenges like Communal riots and massive influx of refugees, following partition threatened the very foundation of the newly born nation.

The second most important challenge was to integrate the six hundred princely states. This was done peacefully and amicably by the Home Minister Sardar Patel and his able efficient confident V.P Menon.
As mentioned the process was largely peaceful, with a few exception like the state of Jammu and Kashmir and Hyderabad where the problem of Hyderabad was solved by police action. Kashmir become a problem for a pretty long time .

What Led to the Birth of Article 370?

# The history of Kashmir conflict date back to the time when Half of Indian Territories were princely states at the time of Queen Victoria’s proclamation. Jammu and Kashmir was one such princely State. Maharaja Hari Singh of the Dogra lineage was the ruler of the state.

# At the time of Indian Independence ,the British announced that the British Paramountcy over the 565 princely states would end, and the states were free to choose between the new Dominions of India and Pakistan or to remain independent.

# After the withdrawal of the British, armed tribesmen invaded Kashmir from the Pakistan border. King Hari Singh wrote a letter to Lord Mountbatten, seeking help and attached a signed Instrument of Accession to India. The Governor General of India signed the acceptance. According to the Instrument defence, external affairs and communication were transferred to India.

# In 1948, Hari Singh made a decree to convene a national assembly and work out a new constitution of the state. Sheikh Abdullah was appointed as the prime minister of Jammu and Kashmir.It was Sheikh Abdullah, who initiated and demanded more things for Kashmir.

Prime Minister Pandit Jawahar Lal Nehru advised Sheikh Abdullah to convince B.R. Ambedkar who was not in favour of the proposal to incorporate it in the Constitution.

In the book, Dr.B.R.Ambedkar Framing of Indian Constitution, by Dr.S.N.Busi, Dr.Ambedkar was cited as saying:  Mr. Abdullah, you want that India should defend Kashmir. You wish India should protect your borders, she should build roads in your area, she should supply you food grains, and Kashmir should get equal status as India, but you don’t want India and any citizen India to have any rights in Kashmir and Government of India should have only limited powers. To give consent to this proposal would be a treacherous thing against the interests of India, and I, as the Law Minister of India, will never do. I cannot betray the interests of my country.

# In 1949 Hari Singh through a order transferred power to his son Yuvraj Karan Singh Bahadur, who issued a order for the election of a constituent assembly in the state, and In 1953 Karan Singh dismissed sheikh Abdullah from the post of Prime minister thus Bakshi Ghulam was appointed as a new prime minister of Jammu and Kashmir.

# Jammu and Kashmir constituent Assembly ratified the states accessions to India ,but the internal administration was retained by the State.

The idea of dividing Jammu and Kashmir into two or more parts has a history tracing its origin to the Dixon Plan of 1950. Owen Dixon, an Australian Jurist chosen by United Nation to mediate between India and Pakistan on the J&K issue, suggested a package, which do not find acceptance from India. In 1983, former President R.Venkataraman, who was Defence Minister in the Indira Gandhi Cabinet, floated the concept of trifurcating J&K- Ladakh as a Union Territory; Jammu as a State and the Valley as a Separate entity.

What is Article 370?

History shows that Article 370 has widened gap between people of Jammu and Kashmir and the rest of India. Article 370 was only a temporarily, transitional arrangements and was allowed to have separate constitution and a flag.

The state legislature were empowered either to adopt or not to adopt any law passed by Indian parliament. Except for the matters relating to defence, external affairs, communications and the matters mentioned in the instrument of accessions.

But in the long run it has failed to benefit the people in a meaningful way and was used by separatist to spread terrorism.

What is Article 35A?

Article 35A of the Indian Constitution was an article that empowered the Jammu and Kashmir state's legislature to define "permanent residents" of the state and provide special rights and privileges to those permanent residents. It was added to the Constitution through a Presidential Order, under Article 370.

The state of Jammu and Kashmir defined these privileges to include the ability to purchase land and unmovable property, ability to vote and contest elections, seeking government employment and availing other state benefits such as higher education and health care. Non-permanent residents of the state, even if Indian citizens, were not entitled to these ‘privileges’

Text of the Article 35A:

Saving of laws with respect to permanent residents and their rights.
Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or

(b) conferring on such permanent residents any 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, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part."

How Modi Government changed the status of J&K:

The revocation of Kashmir’s special status is a major move towards ensuring inclusive India.The demand of revocation of article 370 has been under consideration for a long time. The recent decision by the government to abrogate Article 370 is a national issue involving our country safety, security, unity and equitable prosperity. It is a stepping stone to enable an improved quality of life for the people of Jammu and Kashmir.

Modi Government made the abrogation of 370 possible which was seen as impossible matter and permanent topic of issue of our country.
# President Ram Nath Kovind issued a presidential order under Article 370(1) of the constitution.
# The Order replaces the 1954 Order which means that all the provisions of the constitution of India, shall apply to J&K too.
# A few clauses were added to article 367 of the constitution which contains interpretations
# Now, all the references to the Sadar-I-Riyasat will be elucidate as reference to Governor of J&K.
# The government has made the fact that J&K is under President’s Rule, during which the parliament performs the legislative functions of the state assembly.

The New Order:
The union Home Minister Amit Shah introduced two statutory resolution to recommend that the president issue a notification rendering Article 370 inoperative, and to accept the Jammu and Kashmir reorganisation bill.

A look at how the government changed the Special Status of the state overnight:
Under article 370, J&K had its own constitution and the law passed by the parliament were applicable to the state only.

The president was empowered to decide which provisions of the Indian Constitution would be applicable with the state’s assent.

To scrap Article 370 altogether, a few clauses were added to Article 367 which contains interpretations the reference to the constituent assembly was amended to read legislative assembly of the state.

Article 35A protected the laws such as bar on outsiders buying property in the state and women marrying Non-Kashmiris losing their property rights.

The Government’s decision would facilitate greater investments entrepreneurs and major private companies in different sectors including hospitality , tourist, education and health. It would naturally generate much needed employment for local youth. It would also enable greater scrutiny of the implementation of the schemes of the Government of India.

These special measures could only be altered on the recommendation of the Sadar-I-Riyasat or by the constituent assembly.

President Ram Kovind declared that all provisions of the Indian constitution shall now apply to J&K.

Present Scenario:
The two new territories will be Jammu and Kashmir and Ladakh. Ladakh will not have a legislature while Jammu and Kashmir will have one.The Union Territory of Jammu and Kashmir would be administered/governed like Puducherry.

In case of Ladakh, where there is no Legislative assembly, the role of the administrator or Lt. Governor will be greater than that of Jammu and Kashmir. His source of authority is the president.

The speech of Ladakh MP, Jamyang Tsering Namgyal, in the Lok Sabha recently, pointed out that Ladakh was not just a piece of land but a precious gem of Bharat. I am also confident that the status of a State would be accorded once things improve and total order is restored in Jammu and Kashmir.

A total of 106 central laws will now be tented to Jammu and Kashmir. Some of key pieces of legislation include the Prevention of corruption Act, the Land Acquisition Act, the National Commission for Minorities Act , the Right to Education Act and those relating to empowering local bodies .

With Article 35A becoming void, the decades old discrimination against the woman of Jammu and Kashmir has been eliminated. They can now purchase and transfer property their children, even if they get married to a non-resident.

Opinion of the Leaders on Revocation of Article 370:
Slamming the Congress, Mr. Shah Said stated that it was congress policy that had killed more than 41,000 since 1988 and further said that the revocation of article 370 should be supported by everyone. Terrorism cannot end till article 370 and 35A continue. the Article is an obstacle to development in the state. He said that it was a temporary provision and was discriminatory on the basis of caste, gender, class and place of origin and it should be removed for the interest of people.

A decade ago Gulzari Lal Nanda (Home Minister during J.L.Nehru) said Article 370 is nothing more than a shell emptied of its contents. Nothing has been left in it ;we can do it in one day , in 10 days, 10 months .That is entirely for us to consider.

The decision to abrogate 370 was criticised by many leaders of country.

P.Chidambaram stated the decision to abrogate 370 as a catastrophic blunder and appealed to government not to dismember the state.

The State of Jammu and Kashmir has been an integral part of our country. It will always remain so. So, the action to remove Article 370 is purely an internal matter. It goes without saying that India will not allow outsiders to meddle in its internal affairs. People should guard against false and mischievous propaganda by a section of the Indian and Western media ,which probably still believes in the colonial mind set of divide and rule.

Thus, The abrogation of Article 370 is indeed a step in the right direction to safe guard the unity and integrity of India.

Although the special status of J&K was meant to end but only with the concurrence of its people. It should not have been scrapped without the wider consultations.

# V.P.Menon : The integration of states
# Dr.B.R.Ambedkar Framing of Indian Constitution
# Times of India
# The Hindu

Written by: Ayushi Detha

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