360̊ on article 370

360̊ on Article 370

“Constitution is for the real union of Indian people, built on

the basic concept of sovereignty of the people, to

ensure them of justice. That is the real spirit of constitution.”

THE STATE OF JAMMU AND KASHMIR

Part of territory of India as defined in Art.1

15th state, included in the First schedule of the Constitution, as it stands amended.

Peculiar position under the Constitution of India

Enjoys special status under Article 370 of the Constitution.

ARTICLE 370 OF THE INDIAN CONSTITUTION

A temporary provisionGrants special status to Jammu and

Kashmir. Under Part 21 of the Constitution of

India, which deals with “Temporary, Transitional and Special provisions”, the State of Jammu and Kashmir has been accorded special status under Article 370.

HISTORY OF INTEGRATION OF J&K

WITH INDIA

THE PRINCELY STATE OF J&K

Under British regime, J&K was ruled by Maharaja of Kashmir from 1820.

Kashmir and Jammu was, from 1846 until 1947, a princely state in the British Empire in India, and was ruled by a Maharaja.

The state was created in 1846 when, after its victory in the First Anglo-Sikh War, the East India company annexed the Kashmir Valley and in order to make good on the financial loss incurred during the Anglo-Sikh war, the Muslim Majority Kashmir was sold to the Dogra ruler of Jammu under the Treaty of Amritsar.

DURING FREEDOM OF INDIA & PAKISTAN

When India and Pakistan got freedom on 15th and 14th August, 1947, Maharaja Hari Singh (then the ruler of J&K), chose to be neutral, joining neither of the countries.

He wanted both India and Pakistan to recognise his princely state as an independent neutral country like Switzerland

IN 1947Indo-Pakistan war of 1947 on Kashmir.On October 22, 1947, J&K was attacked

by Azad Kashmir Forces with the support of Pakistan.

Maharaja sought the help of India. India helped J&K after Maharaja Hari

Singh signed the Instrument of Accession giving up Kashmir to India which was accepted by Lord Mountbatten, the Viceroy of Burma on October 26..

THE INSTRUMENT OF ACCESSION

The Instrument of Accession is a legal document executed by Maharajah Hari Singh, ruler of the princely state of Jammu and Kashmir, on 26 October 1947.

By executing this document under the provisions of the Indian Independence Act 1947, Maharajah Hari Singh agreed to accede to the Dominion of India .

THE INSTRUMENT OF ACCESSION

Lord Mountbatten’s remark and the

offer made by the Government of India to conduct a plebiscite or referendum to determine the future status of Kashmir led to a dispute between India and Pakistan regarding the legality of the accession of Jammu and Kashmir to India.

POST - 1947

By Accession, the Dominion of India acquired jurisdiction over the state with respect to certain subjects.

Indian military aid to Kashmir 1948: India takes the Kashmir

problem to the United Nations (UN) Security Council on 1 January.

POST - 19471949: On 1 January, a

ceasefire between Indian and Pakistan forces leaves India in control of most of the valley, including Jammu and Ladakh.

Pakistan gains control of part of Kashmir including what Pakistan calls "Azad" Kashmir and Northern territories.

POST - 1947

A Special deal - Article 370

In 1949 On 17 October, 1949, The Indian Constituent Assembly

adopted Article 370 – A TEMPORARY

PROVISION of the Constitution.

ARTICLE 370 Only three

subjects were submitted by the state to the Dominion of India under the Article.

They are1.Defence2.External Affairs3.Communications

ARTICLE 370

The original draft explained "the Government of the State means the person for the time being recognised 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."

ARTICLE 3701) 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.

ARTICLE 370c) the provisions of article 1 and of this article shall apply in relation to

that State;(d) 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.

Article 370(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 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.

THE SUBSEQUENT ORDERSDelhi Agreement in 1950 regarding Union’s

jurisdiction over the state and the decision on the constituent assembly of J&K.

The Constitution(Application to Jammu & Kashmir), Order, 1954, came to force on 14 May, 1954

Separate constitution for J&K came to force on January 26, 1957.

Article 1 of the Constitution of Jammu and Kashmir states that the State of Jammu and Kashmir is and shall be an integral part of the Union of India.

http://en.wikipedia.org/wiki/Constitution_of_Jammu_and_Kashmir

IMPLICATIONS OF ARTICLE 370

Separate Constitution J&K is the only state in India which

has a Constitution of its own. The Constitution of J&K was enacted by a separate Constituent Assembly set up by the State and it came into force on 26 January 1957.

Jammu and Kashmir State Symbol


Emergency Provisions 1) The Union of India has no power to declare Financial

Emergency under Article 360 in the state. The Union can declare emergency in the state only in case of War or External Aggression.

2) No proclamation of emergency made on the grounds of internal disturbance or imminent danger thereof shall have effect in relation to the state unless (a) it is made at the request or with the concurrence of the government of the state; or (b) where it has not been so made, it is applied subsequently by the President to that state at the request or with the concurrence of the government of that state.


Fundamental Duties, Directive Principles & Fundamental Rights

1) Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are not applicable to J&K.

2) In addition to other fundamental rights, Articles 19(1)(f) and 31(2) of the Constitution are still applicable to J&K; hence the Fundamental Right to property is still guaranteed in this state.

3)In the Indian Constitutional history only one Fundamental Right has been added so far and that is Right to Education. this right too is not extending to J&K.


High Court of J&K

The High Court of J&K has limited powers as compared

to other High Courts within India. It can’t declare any

law unconstitutional. Unlike High Courts in other

states, under Article 226 of the Constitution, it can’t

issue writs except for enforcement of Fundamental

Rights.


Miscellaneous

1. Certain special rights have been granted to the permanent residents of J&K

2. The 5th Schedule pertaining to the administration and control of Schedule Areas and Scheduled Tribes and the 6th Schedule pertaining to administration of tribal areas are not applicable to the state of J&K.


Procedure for Amendment of State Constitution

1) The Provisions of the State Constitution (except those relating to the relationship of the state with the Union) may be amended by an Act of the Legislative Assembly of the state passed by not less than two-thirds of its membership.

2) No amendment of the Constitution of India shall extend to J&K unless so extended by an order of the President under Article 370(1).


Under Article 370 the Indian Parliament cannot increase or reduce the borders of the state.

Jammu & Kashmir is the most autonomous state in India. It even has its own State Flag, allowed by Nehru in the Delhi Agreement of 1952.

State also has its own anthem called Qaumi Tarana.


There is only one system of citizenship for the people of the country but in case of Jammu and Kashmir, it is dual citizenship, one of the state and the other of India.

Kashmir are citizens of India but the citizens of the rest of India cannot be citizens of Jammu and Kashmir. They do not have the right to property and the right to vote in Jammu and Kashmir.

If a girl belonging to Jammu and Kashmir marries a boy from outside the State, who is not a State subject, she loses all her rights in the State.


Wealth tax cannot be imposed in the State.

The Urban Land Act, 1976, which is in force in the entire country, is not applicable to Jammu and Kashmir.

The Parliament has no power to legislate Preventive Detention laws for the state; only the state legislature has the power to do so.


The Indian Supreme Court has no jurisdiction in J&K.Disrespecting the Indian flag and other national symbols is not a

crime in the state.A Pakistani resident gains J&K citizenship if he marries a J&K citizen.


RTE, RTI, CAG and majority of Indian laws are not applicable in the state.

Because of Article 370, no outsider (anyone who is not a native Kashmiri) can purchase land in J&K.

It is the only state which does not have to give a detailed record on the money flowing in the state and where it is used and how.

First day…First Controversy…

• Hours after BJP-led NDA government took over the reins of the Union government in New Delhi, junior minister in the Prime Minister's Office, Jitendra Singh sparked a controversy on the vexed issue of special status (Article 370) to Jammu and Kashmir by saying that it has done "more harm than good".

First Day…First Controversy

“Article 370 has done more harm than good. The youth of Kashmir has to be convinced about this. That's why the honourable PM has called for a debate. Having a debate doesn't mean we have deviated from what we promised. It just means convincing those who are not convinced.”

-Jitendra Singh in the PMO on

May 27, 2014

Controversy around Article 370 Cutting across party lines,

ruling National Conference and main opposition People's Democratic Party (PDP) slammed Singh for making "irresponsible remarks".

PDP president Mehbooba Mufti urged Prime Minister Narendra Modi and the BJP leadership to rein in the newly appointed minister before his utterances caused serious damage.

Omar Abdullah, CM of J & K responded angrily in a series of tweet

Controversy around Article 370

Though BJP didn’t reply to this, RSS Spokesperson, the right wing of BJP, promptly replied to Omar Abdullah.

Views of Various political parties across India

• BJP stands for abrogation of Article 370 though now a days it has softened its stand due to the coming assembly election in the month of November -December 2014.


• Congress – Opposes any further autonomy for the state, but supports the existing system.

• National Conference – Stood for greater autonomy of the state. Completely against abrogation of Article 370.

• People Democratic Party – stood for greater autonomy. Wanted return to pre-1953 position but today it is in the middle way since it is in alliance with BJP.


• "The decisions on issues like Article 370 should not be taken in haste," SAD leader and Punjab Chief Minister Parkash Singh Badal said.

• JD(U) leader and Bihar Chief Minister Jitan Ram Manjhi criticised the Modi government for raking up the issue of scrapping of Article 370 saying it would have an adverse impact on the country.

• Mayawati too alleged that controversy on Article 370 was generated only to create polarisation among people on the lines of community and religion.

In Nutshell

DILUTION OF ARTICLE 370

ARTICLE 370 - DILUTED

In its original form, Article 370 specified that except for defence, foreign affairs, finance and communications, the Indian Parliament needs the state government’s concurrence for applying all other laws.

But now all the provisions that gave J&K its autonomous status have been withdrawn


♦ J&K, which has its own Constitution, is debarred from making any amendments to it

♦ The J&K Constitution provided for a Sadar-i-Riyasat (head of state), elected by the members of the state legislature and a prime minister. Now replaced by the governor and chief minister

♦ J&K had a national flag, the word ‘national’ has now been deleted, reducing it to a government flag


♦ Under the original Article 370, the people of J&K were not citizens of India; now they are, Indian citizens needed a permit to visit J&K and goods from India had to pass through a Customs barrier. The restrictions no longer exist.

Demand for Abrogation of Article 370

Equally valid arguments are forwarded by those in favour of and those against its abrogation.

Argument in favour of Abrogation1. It has created certain psychological barriers. 2. It is the root cause of all the problems in J&K. 3. It is this Article 370 which encourages secessionist

activities within J&K and other parts of the country. 4. At the time of enactment, it was a temporary

arrangement which was supposed to erode gradually.5. It acts as a constant reminder to the Muslims of J&K

that they have still to merge with the country.

Demand for Abrogation of Article 370

It has been widely reported that “because of Article 370, Jammu and Kashmir does not have industries and progressive measures like Mandal report on backward classes cannot be implemented”.

Before, there has been demand by BJP and RSS for abrogation of Article 370.

Congress leader Karan Singh, son of Maharaja Hari Singh, has also opined that an integral review of Article 370 is overdue and needs cooperation not confrontation.

http://en.wikipedia.org/wiki/Karan_Singh

http://en.wikipedia.org/wiki/Hari_Singh

No Abrogation Those against its abrogation forward the following

arguments. 1. Abrogation will have serious consequences. 2. It will encourage secessionists to demand plebiscite which

will lead to internationalization of the issue of J&K. 3. The contention of Article giving rise to secessionist activities

is baseless as states like Assam and Punjab, which don’t have any special status have experienced such problems.

4. It would not only constitute a violation of the solemn undertaking given by India through the instrument of accession, but would also give unnecessary misgivings in the minds of the people of J&K, making the issue more sensitive.

THANK YOU

360̊ on article 370

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