Thursday, May 29, 2014

Jammu Kashmir and Article 370 - An Assessment - Part II

Continuing from Jammu Kashmir and Article 370 - An Assessment - Part I

I hope you have had a good read from the Part I of this series. It would be important now to focus on the aspects of Article 370 from the Constitution of India that gives Autonomous Status to J&K with its on Penal Code and Constitution.

The Article 370 as it reads for itself "Temporary Provisions with respect to the State of Jammu and Kashmir" never proved to be temporary till date and day by day is becoming more permanent fixture to the Constitution of India.  Though way back in October 1949, Maulana Hasrat Mohini had raised a question - "Why this discrimination please?" to which the Answer by Mr. Ayyangar was "For a variety of reasons J&K , unlike other princely states was not ripe for integration as India and Pakistan had been at war over J&K, and although there has been a ceasefire, the conditions still were unusual and abnormal. Part of State's territory is in hands of rebels / enemies."

So that laid the foundation that was then casted over with some concrete agreements and negotiations leading to inclusion of Article 370 in the constitution of India.

The clause by clause coverage of Article 370 - 
  1. Notwithstanding anything in this Constitution (a) the provision of Article 238 shall not apply in relation to the State of J&K;
Note: Article 238 has been Omitted by Constitution by 7th Amendment Act 1956. So this clause seems to automatically seem to stand Null & Void

  1. (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 far 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.

Note: Since than a series of Presidential Orders have made most Union Laws applicable to the State of J&K, thus eroding this section in particular. Today there is NO institution of India that does not include I&K within its Jurisdiction.

  1. (c) the provisions of article 1 and of this article shall apply in relation to that State; 
  1. (d) such of the other provisions of this Constitution may 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 instruments of Accession of the State referred to in Paragraph (i) of sub-clause (b) shall be issued in consultation with the Government of State: Provided further that no such order which relates to matters other than those referred 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 proviso to subclause (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.
Note: Interesting portion here now is the Sub-clause 1 (d) was exercised in 1956 when the Constituent Assembly of J&K passed the resolution of Accession to India.  So now if we look at that sub-clause, it is another section that stands Null and Void.  So eventually the Clause (1) of the Article is practically defunct.....

To have a deeper look at the Clause (2) of the Article, J&K State Constitution as framed in 1956 and last amended in 2002 (29th Amendment) has a preamble - 
WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR, having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves- JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and' worship; EQUALITY of status and of opportunity; and to promote among us all ; FRATERNITY assuring the dignity of the individual and the unity of theNation; IN OUR CONSTITUENT ASSEMBLY this seventeenth day of November, 1956, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. 
Further in Part II of the Constitution of J&K it reads - 
Extent of executive and legislative power of the State:- The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India.
So if we actually review the whole case, there is nothing from Article 370 that has anything that is valid for the date the controversy over it is brewing.  I am not sure what is the use of this particular Article 370 any more?

Why are politicians so whimsical to make statements that would help only insurgents and not the Citizens / Residents of the State.

The Article 370 for itself provides for omitting this article from Constitution by the way of a Presidential Order.  the only catch is with due support from the States Constituent Assembly....and with the both Ruling and Opposition Parties in J&K opposing that seems a bit difficult a situation.

Overall, Article 370 is does neither seem to be standing relevant in present time, nor does it seem to be applicable to / favoring the situation of J&K.....It just is fueling further separatist sentiments and keeping the Kashmir Pandits away from where they belong.


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