Note on Article 370 : Jammu Kashmir Study Center

Note on Article 370

( Jammu Kashmir Study Center)

Omar Abdullah Tweet-  “ Mark my words & save this tweet - long after Modi Govt is a distant memory either J&K won't be part of India or Art 370 will still exist.”

Comments - The Statements given by Omar Abdullah and Mehbooba are anti National and an insult to the Union Constitution and its makers. The authors of Constitution of India have kept Article 370 as a Temporary Provision. Even Title of the Article is written in the Union Constitution of India – “ Temporary provisions with respect to the State of Jammu and Kashmir”   Even during the debate on Draft Article 306A (which was renumbered as 370 in original Constitution), Goapala Swami Ayyahngar have clearly stated that the Article 370 is not a permanent feature. So, if one will go by tweet of the Hon’ble Chief Minister of the State of Jammu Kashmir – Did Constitution Makers want to break this country by declaring the Article 370 as Temporary Article?

 

Debate of Constituent Assembly on Article 370 made it clear that Constituent Assembly was not being formed due to the conditions in the State. While speaking in the Constituent Assembly Gopala Swamy Aiyyanger said “The States have been integrated with the federal Republic in such a manner that they do not have to accede or execute a document of Accession for the purpose of becoming units of the Republic, but they are mentioned in the Constitution itself; and, in the case of practically all States other than the State of Jammu and Kashmir , their constitutions also have been embodied in the Constitution for the whole of India….” . From this it emerges that many Princes had in total agreed at the first instance itself to go with the Union Constitution and accept a common plan that Union Constitution may contain for all such states.

Member of Constituent Assembly  resisted and asked why such discrimination? In response Gopala Swamy Aiyyanger further stated that “There has been a war going on within the limits of Jammu and Kashmir State. There was a cease fire agreed to at the beginning of this year and that cease-fire is still on. Part of the State is still in the hands of rebels and enemy. We are entangled in the United Nation. The legislature which is known as Praja Sabha in the State is dead, neither that legislature nor a constituent assembly can be convoke or can function until complete peace comes to prevail. Till a constituent Assembly comes into being, only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangements that exists in the case of the other States…”

Though the reasons extended by  Gopala Swamy Aiyyanger clearly stated that Article 370 was merely a timely procedural mechanism  for completing the process as was done for other states i.e  (i) performing as regards the subjects lying within the Jurisdiction of the Parliament of India / Union  Government  and (ii) also enable the State to take decisions  for offering the subjects to Union for  extending the  jurisdiction of Union Government / Parliament of India over such subjects  that may otherwise fall  in the ‘State list’ in terms of the accession documents

In response Gopala Swamy Aiyyanger further stated that “There has been a war going on within the limits of Jammu and Kashmir State. There was a cease fire agreed to at the beginning of this year and that cease-fire is still on. Part of the State is still in the hands of rebels and enemy. We are entangled in the United Nation. The legislature which is known as Praja Sabha in the State is dead, neither that legislature nor a constituent assembly can be convoke or can function until complete peace comes to prevail. Till a constituent Assembly comes into being, only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangements that exists in the case of the other States…”

Statement of the Goapalswami Ayyangar in the constituent Assembly

“We have said Article 211A will not apply to the Jammu and Kashmir State. But this cannot be a permanent feature of the Constitution of the State, and hope it will not be. so the provision is made that with the Constituent Assembly of the State has met and taken its decision both on the Constitution for the State and on the range of federal jurisdiction over the State, the President may on recommendation of that Constitution Assembly issue an order that this Article 306A shall either cease to be operative, or shall be operative only subject to such exceptions and modifications as may be specified by him”

The Statements make it very clear that functions were over or the State Constituent Assembly is convened and had performed all the required tasks, Article 370 was to be abrogated/ repealed. Like it happened with many Articles of the Constitution.

With the proclamation of 25^th November, 1949, the Constitution of India was made applicable to the State of Jammu and Kashmir.

Further Mr. Omar Bdullah and Mehbooba Mufti should read the Article 1 of the Constitution of India and Preamble, Section 3 and 147 of the State Constitution. 

(a)     Article (1) of Constitution of India has no reference of Article 370 while defining the territories / States of India.

(b). Preamble ( Jammu Kashmir Constitution) -We, the people of the State of Jammu and Kashmir, having solemnly resolved, in the presence of the accession of this State of India, which took place on 26^th day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part of India as an integral part thereof, and to secure to ourselves:- ……

As per the Preamble of the State Constitution, Accession had taken place on 26^th October and the State Constitution has further defined the relationship of the State with the Union. Article 370 has not been mentioned there. So connecting Article 370 with Accession is baseless and an attempt to avoid the negative impact Article 370 on the people of the State.

(C)    Section- 3 of J&K Constitution  too lays down that J&K is  and shall remain integral part of India.( Section-3 JK constitution : Relationship of the State with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the Union of India).

In case Article 370 is abrogated, even then Article-1 of Indian Constitution stays, the Constitution of J&K Stays and hence stays Section-3 of J&K Constitution (Relationship of the State with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the Union of India).

 J&K Assembly cannot amend Section-3 of J&K Constitution as has been clearly laid in Section-147 of J&K Constitution.

The problem started with illegitimate Delhi agreement between Nehru and Sheikh Abdullah. In 1952 Nehru succumbed to the illegitimate wishes of Sheikh and makes an agreement with Sheikh. The agreement was fraud with the nation, even the Parliament of the Country was not taken into confidence before the agreement. Both, Nehru and Sheikh were not the authorised entities to make such Agreement. Only Parliament of India and Maharaja Hari were the legal and authorised entities to conclude such agreements. But both were not involved in the process.

The images of the Nehru- Sheikh Delhi Agreement 1952 did reflect in the Constitution (Application to Jammu and Kashmir) Order 1954 of 14 May 1954 of President. The Constitutional Order of 1954 issued by President was in a way an unconstitutional order issued by the President under the cover of Art-370 of Constitution of India that had gone to the extent of even amending the Constitution of India where as no such authority could drawn by President from Art-370 of COI. The order limits powers of Parliament also. The Constitution Application order of May, 1954 is a political fraud under the cover of Article 370 with people of State and Union.

Mehbooba and Omar raising questions over the Accession of the State.

On 26^th October Maharaja Hari Singh construed the Accession and signified by Lord Mountbatton on 27^th. It was full and Final and not conditional. Article came into existence came into existence on 26^th November, 1950. Removal of Article 370 will have no impact on Accession. Even if any changes were to be made in the Accession, that can’t be done without the consent of Maharaja as mentioned in the Clause 5 of the Accession.

Clause-5: The terms of this Instrument of Accession shall not be varied by any amendment of the Act or the Indian Independence Act, 1947, unless such amendment is accepted by me by Instrument supplementary to this Instrument.

Earlier Sh Narender Modi and now Dr. Jitendra Singh, have made statements that a debates should be initiated if the Article 370 have benefitted the people of the State of not ? Instead of participating in the debate, Omar and Mehbooba both have tried to raise irrelevant issues. As discussion brings out the misdeeds of the leaders of Jammu Kashmir. They got exposed on the issues i.e. discrimination against women, ST, OBC Reservations, Human Rights Violations of West Pak refugees, POJK Displaced, Chamb displaced and terrorism affected people of Jammu regions. As far as Article 3760 is concerned, subjects of the Jammu and Kashmir have given their mandate. Omar is failed to tell the country why Prevention of corruption act, 1989, Right to Education, political reservation to ST's of the State and 73rd and 74th amendment to Constitution of India are not implemented in the State.

National Conference has secured only 10 % votes and on 4^th position in the State after BJP, PDP, and Congress.

.