The Article 370 has taken on the features of a permanent provision "despite being titled a temporary provision in the Constitution of India."



Opinion

20/12/2015.

146.


Sub : - The Article 370 has taken on the features of a permanent provision "despite being titled a temporary provision in the Constitution of India."

Ref : -  Kashmir  is let down by :-

1. Dynastic rules { (i) . four generations of Nehru family  (ii). three generations of Abdullahs family  (iii) .  Mufti muhammad and his daughter }

2. Anti national elements siding Pakistan ( Hurriyat conference, etc...)

3. Muslim atrocities against Hindus,

4. Separatist groups anti-India activities,

5. India spends lot of money for these traitors, without any fruits;

6. Indian forces sacrifice is not respected by the people of kashmir,

7.Government of India efforts is not noticed by the world Nations

All Members,

Respected family members of this great holy Nation.

A.

Article 370 :

Article 370 of the Indian constitution is a law that grants special autonomous status to the state of Jammu and Kashmir.

The article is drafted in Part XXI of the Constitution, which relates to Temporary, Transitional and Special Provisions.


Purpose :

Jammu and Kashmir's original accession, like all other princely states, was on three matters: defence, foreign affairs and communications.

All the princely states were invited to send representatives to India's Constituent Assembly, which was formulating a constitution for the whole of India.

They were also encouraged to set up constituent assemblies for their own states.

Most states were unable to set up assemblies in time, but a few states did, in particular Saurashtra Union, Travancore-Cochin and Mysore.

In May 1949, the rulers and chief ministers of all the states agreed to accept the Constitution of India as their own constitution.

The states that did elect constituent assemblies suggested a few amendments which were accepted.

The position of all the states (or unions of states) thus became equivalent to that of regular Indian provinces.

In particular, this meant that the subjects available for legislation by the Central and State governments was uniform across India.

B.

In the case of Kashmir, the representatives to the Constituent Assembly requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State.

Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State's constituent assembly.

This was a "temporary provision" in that its applicability was intended to last till the formulation and adoption of the State's constitution.

However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370.

Thus the Article has become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir, the latest of which was in October 2015.

C.

The clause 7 of the Instrument of Accession signed by Maharaja Hari Singh declared that the State could not be compelled to accept any future Constitution of India.

The State was within its rights to draft its own Constitution and to decide for itself what additional powers to extend to the Central Government.

The Article 370 was designed to protect those rights.

According to the constitutional scholar A. G. Noorani, the Article 370 records a "solemn compact."

Neither India nor the State can unilaterally amend or abrogate the Article except in accordance with the terms of the Article.

D.

Article 370 embodied six special provisions for Jammu and Kashmir :

1. It exempted the State from the complete applicability of the Constitution of India.

2. The State was allowed to have its own Constitution.

3. Central legislative powers over the State were restricted to the three subjects of defence, foreign affairs and communications.

4. Other constitutional provisions of the Central Government could be extended to the State only with the concurrence of the State Government.

5. The `concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly.

6. The State Government's authority to give `concurrence' lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalized the scheme of powers and dispersed, no further extension of powers was possible.

E.

The Article 370 could be abrogated or amended only upon recommendation of the State's Constituent Assembly.

Once the State's Constitutional Assembly convened on 31 October 1951, the State Government's power to give `concurrence' lapsed.

 After the Constituent Assembly dispersed on 17 November 1956, adopting a Constitution for the State, the only authority provided to extend more powers to the Central Government or to accept Central institutions vanished.

This understanding of the constitutionality of the relations between the Centre and the State informed the decisions of India till 1957.

However, it was abandoned afterwards.

F.

Implications :

This article specifies that the State must concur in the application of laws, except those that pertain to Communications, Defence, Finance, and Foreign Affairs.


Similar protections for unique status exist in tribal areas of India including those in Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland.

However, it is only for the state of Jammu and Kashmir that the accession of the state to India is still a matter of dispute between India and Pakistan still on the agenda of the UN Security Council and where the Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article .

G.

The 1974 Indira-Sheikh accord between Kashmiri politician Sheikh Abdullah and then Prime Minister Indira Gandhi stated, "The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India".

H.

In notifications issued as far back as 1927 and 1932, the state created various categories of residents – with some being called permanent residents (PRs) with special rights.

Though the law did not discriminate between female and male PRs, an administrative rule made it clear that women could remain PRs only till marriage.

After that they had to seek a fresh right to remain PRs.

And if a woman married someone who wasn’t a Kashmiri PR, she automatically lost her own PR status.

But a 2002 high court ruling made it clear that a woman will remain a PR even after marriage to a non-PR, and enjoy all the rights of a PR.

A People's Democratic Party government, led by Mehbooba Mufti, passed a law to overturn the court judgment by introducing a Bill styled “Permanent Residents (Disqualification) Bill, 2004’.

This was not Mufti’s solo effort. Omar Abdullah’s party, the National Conference, backed this Bill and got it passed in the lower house of the assembly.

But it did not ultimately see the light of day for various reasons.

Sheikh Mohammad Abdullah, the state's 'Prime Minister' and leader of the Muslims in the Valley, found the inclusion of Article 370 in the 'Temporary and Transitional Provisions' of the Constitution's Part XXI unsettling.

He wanted 'iron clad guarantees of autonomy'.

Suspecting that the state's special status might be lost, Abdullah advocated independence from India, causing New Delhi to dismiss his government in 1953, and place him under preventive detention.

I.

Calls for abrogation :

In 2014, as part of Bharatiya Janata Party manifesto for the 2014 general election, the party pledged for integrating the state of Jammu and Kashmir into the Union of India.

After winning the elections, attempts were made by the party along with RSS party for abrogation of Article 370.

Also, Congress leader Karan Singh, son of Maharaja Hari Singh, has, opined that an integral review of Article 370 is overdue and, to be worked with the State of Jammu and Kashmir.

K.

However, in October 2015, the High Court of Jammu and Kashmir has ruled that the Article 370 cannot be "abrogated, repealed or even amended."

It explained that the clause (3) of the Article conferred power to the State's Constituent Assembly to recommend to the President on the matter of the repeal of the Article.

J

Since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, the Article 370 has taken on the features of a "permanent provision" despite being titled a temporary provision in the Constitution.
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NOTE :

1. REMOVE ARTICLE 370.

2. MAKE KASHMIR EQUAL TO AND AS OTHER STATES OF INDIA.

3. AS IT IS BORDER STATE MAKE THE PRESENCE ARMED FORCES PERMANENT.


My view points

1. It is too late to decide and

2. People of kashmir make up their mind that being with India is safer than anywhere else,

3. Muslims should/must accommodate Hindus, otherwise no meaning of shouting slogans on secularism.

4. India Government is doing lot of things to Kashmir, I call  people of kashmir to show some gratitude,

5. Be proud of be Indian, than your separatist mentality, it is your future!!!

END.

Thank you for reading.

JAIHIND.

To be continued  ...






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