06/06/2019
What needs to be done in J&K for its’ integration with rest of the country
By Prof. Bhim Singh
It is urgent that all who are talking about Jammu and Kashmir today from Kanyakumari to Kashmir should understand the hidden complications involved in the situation because of the failure of the Central leadership including that of the Parliament of India. Every parliamentarian and those who understand the Constitution of India should understand that,
“Notwithstanding anything in the foregoing provisions of Article 370, 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 Constituent Assembly was buried in 1950 when the Constitution of India was introduced)
Article 370 was temporary and is still temporary. Article 370 itself provides that President of India is competent and authorized to make any amendment or change in the character/language of Article 370. President has introduced several amendments in the body language of Article 370.
1. That the President of India intervened in 1954 and amended Article 35 of the Indian Constitution which is the last para in Chapter-III of the Indian Constitution deals with the Chapter on Fundamental Rights.
I). It was the pleasure of the President of India, Hon’ble Dr. Rajendra Prasad who inserted an amendment in Article 35 by inserting Clause 35-A which reads,
“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 immoveable 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 consistent with or takes away or abridges any rights conferred on other citizens on India by any provisions of this part.
2. That this amendment made by the President was sponsored by the then Union Govt. of India although this recommendation was totally against the concept and the constitutional power vested in the President of India. The President of India was vested power only to interfere into the domain of Article 370 and not with the domain of any area within the meaning and scope of Chapter-III of the Indian Constitution dealing with the Fundamental Rights of the citizens of India. Article 35 could not have been interfered with by the President of India who could have interfered only with Article 370 which was a temporary provision. (This Article 370 is still a temporary provision in the Constitution of India).
3. This is important that President of India is vested with absolute power to interfere into the domain of Article 370 which has been a temporary phase for 70 years. President of India made several changes in the body language of this Article. ‘Maharaja’ was replaced by the ‘Sadar-e-Riyasat’ in 1952 and later in 1964 Sadar-e-Riyasat was replaced by Governor. This was the domain of the Presidential Power vested under Article 370.
4. Hon’ble President of India is urged to withdraw Article 35(A) from Chapter-III of the Indian Constitution which was wrongly inserted into Chapter-III of the Indian Constitution and which is no more relevant under the given circumstances. The President is the only authority to withdraw 35(A) because this 35(A) was inserted by the President without the support or sanction of the Parliament of India which alone enjoys power to amend any provision of the Constitution of India. No Presidential Ordinance or any kind of ordinance last for more than six months. The ordinance applied by the President, 35-A, expired in 1954 itself. Besides, Chapter-III of the Constitution of India is not subjected to the command of Article 370. Chapter-III is permanent and basic structure of the Constitution of India. Whereas Article 370 is temporary itself and could not have eroded fundamental rights of the Indian citizens in J&K.
5. After 70 years, temporary provision has lost its meaning and legal sanctity. Besides, proviso provided in 370 (3) has become redundant and has no legal meaning left at all in Article 370. This proviso has become dead and should be declared so by the President of India who commands Article (370) which is temporary.
6. The President of India has an exclusive power vested in him by the Constituent Assembly who was supposed to take clearance from the Constituent Assembly of J&K (which itself was undemocratic and unconstitutional measure). The President of India is fully competent to amend/change any proviso contained in Article 370. He does not need any other authority to consult in this regard. The so-called Constituent Assembly of J&K does not exist even physically speaking. Therefore, Article 370 which had empowered the Ruler of J&K, the Maharaja and which had inserted a proviso under Clause 3 of Article 370—All have been changed and amended by the President.
7. It is in this background and constitutional development in the history relating to the constitutional relationship between J&K and the rest of the country; that the President of India is urged, in the interest of the sovereignty of the Nation and in the interest of the civil and fundamental rights of all the citizens of India including those who have been identified as Permanent Residents in the State of J&K. The President of India enjoys sovereignty over the territory of the Union of India which includes J&K as well.
8. That the residents of J&K are the citizens of India and deserve the benefit of all Fundamental Rights provided in the Constitution of India in its Chapter-III so that they shall not be subjected to the draconian laws made by J&K like Public Safety Act and others. Indian Penal Code needs to be implemented so that Indian citizens in J&K shall also share the fruits of all Fundamental Rights with their brethren in India.
9. That the Parliament of India is empowered to legislate in respect of the three Subjects namely, Defence, Foreign Affairs & Communications with Allied Matters which were included in the Instrument of Accession signed by Maharaja Hari Singh on October 26, 1947 in the presence of Union Secretary, Mr. V.P.S. Menon. This was a blunder/miscalculation/non-application of mind, whatever the historians/constitutional experts may call today. But this blunder was in violation of that Instrument of Accession signed by the Ruler of J&K like other 575 rulers who had signed similar Charter/Instrument of Accession when they acceded to the Union of India. The tragedy is that the Constituent Assembly and later first Parliament of India committed a blunder by keeping J&K Instrument of Accession away from the floors of the Parliament when Constitution of India was declared on January 26, 1950. This is the only way to save the people from further death and destruction caused by the enemies of peace and humanity. That the Instrument of Accession should be dealt directly by the Parliament as it is in List I.
This is in the national interest that the President of India directly intervenes with this matter. If he finds it convenient, he may call the meeting of National Integration Council (NIC) or any one he may choose for seeking the opinion. Attorney General of India and his opinion may suit to find reasonable resolution to seek permanent resolution of the situation which has been stinking vis-à-vis J&K since 1950. There is vast difference between special status and separate status. J&K was India from Mahabharata till the day Britishers quit India. Therefore, special status should not be and cannot be confused into separate status. That is the will of people of J&K and rest of the country. Article 370 is temporary & Article 35-A has lost its mandate & legal sanctity. People of J&K are waiting for urgent intervention of the President as this matter is being exploited by the ruling parties in the Centre for their political convenience. The President of India has a sovereign role to play.
Sd/-Bhim Singh, Sr. Advocate,
Sr. Executive Member-SCBA
&
Chief Patron of J&K National Panthers Party