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Jammu and Kashmir, Art 370

Only two provision of Indian Constitution apply in case of J&K.
1_Art 1: Jammu and Kashmir is a part of Union of India. It means J&K have no right to secede from federation.
2_Art 370: Temporary provision with respect to state of J&K.

Is it a temporary provision?
Supreme Court (SC) in April 2018, on a PIL filed by Vijayalakshmi Jha has clarified that Art 370 is not a temporary provision. In the petition it was demanded that once the constituent assembly of J&K has completed its task, it should not be treated as a temporary provision. It does not have any more validity.
Even in Subhash Gupta case, (SARFAESI case – Securitization and reconstruction of financial assets and enforcement of security interest Act. 2016) , SC held that Art 370 is not a temporary provision.

What was the issue dealt in SARFAESI case?
J&K High Court held that above law cannot be applied in case of J&K, because it is a sovereign entity. However SC clarified that J&K has no sovereign powers outside the constitution of India. Constitution of J&K is subordinate to the constitution of India.

Major provisions of Art 370

Art 370 1
Art 370 2
Test of the Article 370 in Constitution of India.

Art 370 was drafted by Gopalswami Ayyangar, the Diwas of maharaja Hari Singh.

Brief History of J&K.
J&K was the largest princely state. Independence Act of 1947 allowed such states to either join India or Pakistan or to remain independent. Maharaja Hari Singh was ruler of J&K. He entered into standstill agreement with Pakistan because he didn’t want Pakistan to obstruct the necessary supplies to the state. He was also reluctant to join Indian state because of his conflicts with Pandit Nehru or Congress(INC).

However, there was a armed insurrection in the region, supported by Pakistan. Thus ultimately he joined Indian union on 26th Oct 1947. Pakistan was also assertive over its right on J&K. On 1st January 1948, India took the matter to UNSC (UN Security Council).

On 20th January 1948, UNSC came up with a resolution no. 39, to establish UNCIP (UN Commission for India and Pakistan) to investigate the allegations made by India and Pakistan against each other and to offer mediation. On 21st April 1948, It was decided by Security Council resolution no. 47 UNCIP will look after the plebiscite and plebiscite will decide whether Kashmir will be part of India or Pakistan. It is to be noted that UN has given no option for independent Kashmir.

India didn’t agree with the solution of plebiscite. Why? Part of Kashmir was under Pakistan. Pakistan was not ready to withdraw. Pakistan would withdraw only if India withdraws. According to India, Kashmir is India’s territory.

UN has given 3 formulae.
1. Mc Naughton Plan
2. Dixon Plan
3. Graham mission Plan.

Ultimately UN had further increased the mandate of UNCIP. It was converted into UN Military Observer Group for India and Pakistan. It is still existing. (UNMOGIP) (for namesake).

According to India, there is no utility of this institution because it was formed to observe that peace is maintained along the cease fire line. The cease fire line was formed on 1st January 1949, which was converted into LOC by Shimla Agreement 1972.

Four representatives from J&K participated in the constituent assembly. They never insisted on granting special status to J&K. They agreed to the temporary status. It indicates that in future, this status will end and complete integration will take place.

Art 1 is applicable, which means it is an integral part. It provides the manner in which the subjects in union list and concurrent list will apply in case of J&K.
There are two categories of provisions.
1. Application with the consultation of the Govt. of J&K
2. Application with the concurrence of Govt. of J&K.

Consultation on those matters of union and concurrent list which are related to the subjects which were part of instruments of accession signed by the state. Defense, Foreign Affairs, Communication, Currency.
For rest of the matters concurrence is needed.

Art 370 also provides the manner in which other provisions of the constitution can be extended to the state of J&K. It can be done by presidential order with exceptions and modifications. The main presidential order of 1954. In above case also consultation and concurrence was required.

Majority of the provisions has been extended.
Some provisions does not apply, like CAG, fundamental rights and DPSP.

Art 352 is applicable but only on external grounds, not on the ground of Armed Rebellion.

Art 360 – Financial emergency does not apply.

Art 356 – apply but in a modified form.

According to the constitution of J&K, JKHC is a ultimate court of appeal, in civil and criminal matters. Thus it does not come under the jurisdiction of Supreme Court.

However according to the presidential order of 1954, 1. Art 136 (Special leave petition) or Art 142 (Substantive power to do complete justice) has been extended.

Whether Art 32 applies in case of J&K? According to SC, it does not apply in ordinary situations. But exceptional situations, where justice demands it.

SARFAESI case July 2016, also known as Subhash Gupta Case.

According to JKHC, it is an ultimate court of appeal in both civil and criminal matters.
No appeal lies to SC against its judgement.

Petitioner wanted to transfer the case from JKHC to Mumbai HC.

According to JKHC, it was not possible. However according to SC, JK has no sovereign power, it is subordinate to the constitution of India. There are no limitations on the powers of SC. (Art 139(A))

All those persons born or settled in J&K before 1911 or acquired immovable property, at least 10 year before 1911 will be treated as citizens.

Descendants of the persons emigrated out of J&K. They will remain state subject for two generations.

All those emigrants from J&K to Pakistan continue to be the citizen of J&K.

Privileges of citizens: Non-citizens cannot acquire immovable property.

Only citizens are eligible for govt. jobs, welfare schemes and scholarships.

Up till now, the act was considered as discriminatory in terms of gender. Partially addressed in Sushila Sahani case. Women will not loose the privileges in case she marry outsider, but children will loose the privilege.

Weather president can amend the © w/o procedure of Art 368.

Weather presidential order with the effect of amending the constitution can be enforced even without keeping it for the consideration of parliament.

The matter is sub-Judice. PIL is filed by an NGO ‘We the Citizen’. And another PIL has been filed by a Kashmiri women Charu Wali Khanna.

Puranlal Lakhanpal case 1961, SC has already clarified that president can modify the © as per Art 370(1)(d).

Weather president can do so without the knowledge of parliament?

India rejected the report, calling it fallacious, tendentious, motivated and overtly prejudiced. It gives false narrative. It violate the sovereignty and territorial integrity.

According to India, the entire state of J&K is integral part, and the report treats POK and Gilgit Baltistan as separate territories. (Incorrect description)

Report is a selective compilation of facts, it conveniently ignores the pattern of cross border terrorism and role of Pakistan. It mentions Burhan Vani a terrorist, as a leader.

It mentions Hisbul Muzaiddin, Laskar-e-Taiyba as armed groups, rather than terrorist organizations.

It violates Shimla Agreement.

According to Govt. of India, the motivated report ignores that India is a democracy where people enjoy fundamental rights, there is an independent judiciary, Human Rights Commission, Vibrant and free media, Civil Society.

Such report cannot weaken the will of the people and govt. of India in taking all necessary measures to protect the sovereignty and territorial integrity of the country.

Pakistan has welcomed the report.

Pakistan has held that at least international community has acknowledged, what Pakistan has been highlighting since beginning.

Pakistan is ready to fully cooperate with the international community with respect to the enquiry for human rights violation.

Any commissioned warrant officer and non commissioned officer or any other person of equivalent rank, after giving warning, can use force, even to the extent of causing death in a situation where person is acting against any law or order in force. There is a prohibition on assembly of more than five persons, prohibition on carrying arms or anything which can be used as arm.

Armed forces have power to destroy any property, if it is suspected to be hideout or fortified position.

Arrest of a person without warrant on the ground of suspicion that person has committed cognizable offence.

Enter and search any house suspected to be the hideout.

Stop and search, cease any vehicle or any vessel, suspected to be containing 1. Any proclaimed offender, 2. Any person committed cognizable offence. 3. Carrying Arms.

Power to search and destroy any arm dumps.

Santosh Hegde committee: to probe deaths in Manipur. It clearly suggested to make the law more humane and security forces more accountable.

Justice B P Jeevan Reddy commission: To examine the violence in North East. It was harsh against armed forces special power act.

2nd ARC 5th report (on public order): It also suggested to repeal because it is leading to the feeling of alienation.

Imp judgements of SC on AFSPA

Naga people movement for human rights vs Govt. of India 1997.

Upheld the validity of the law.

Central govt can impose the law suo moto.

However there is no scope for arbitrary power to declare any area as disturbed area.  (Subjected to JR)

Act cannot be imposed on permanent basis. There should be review after every six months.

Authorized officers should strictly follow dos and don’ts.

SC also issued guidelines.

PIL filed by the relatives of victims which have lost their lives in NE.

Accountability is a facet of rule of law.

It does not matter weather the person was common man, militant or terrorist, law is same for everyone.

Right to life applies even in the case of terrorists.

Killing enemy is not the only solution.

Excesses beyond necessity cant be permitted.

Every person possessing arm in a disturbed area is not a ipso facto terrorist.

AFSPA was envisaged to allow army to take military operations in good faith without being subjected to harassment. But it was not given to confer impunity. Even armed forces cannot escape investigation.

Armed forces will have to give consideration to the provisions of international humanitarian law.

K C Pant

N M Vohra

3 interlocuters

Dineshwar Sharma (presently)

Government should set up a committee to review all central acts.

Amendment and review of AFSPA and public safety act.

The temporary provision should be made special.

Governor should be appointed in consultation with the Chief Minister. Chief minister should propose the names.

Separate regional councils for J&K, Ladakh and Transfer executive, legislative and financial powers.

Stone pelters and political prisoners against whom there are no serious charges should be released.

Return of Kashmiri Pandits.

Financial package like North East.

Declare hill areas and remote areas as special development zones.

Proper implementation and monitoring of developmental plans.

Respect the autonomy.

Proactive steps to secure borders, to prevent cross border terrorism, to contain militancy.

Restoration of democracy and civilian administration.

Sustained peace process.

Grievance redressal address.

Skill development. UDDAN, HIMAYAT.

Infrastructure development. Prime Minister has announced special development assistance for infrastructure development worth 80,068 crore rupees.

For any successful policy, there are two prerequisites. 1. Intellectual understanding of the problem.  2. Clarity of goals. SWOT analysis.

Peace, Normalcy in the valley. Addressing the alienation of people by redressal of the genuine grievances.

Kashmir is an extremely complex problem with the domestic and international dimensions.

It is also important that India should not succumb to international pressure or the propaganda war.

We cannot overlook the fact that there is huge unrest among the youth. It is also necessary to look at the psychological measures rather than just the economic and security measures. There are reports which show the increasing incidences of psychological disorders, trauma, lack of professional support.

Govt. should try to provide some meaningful system of grievance redressal. If basic freedoms are denied, e.g. Freedom of press, stone pelting remains the only option.

A focused approach towards J&K, a dedicated ministry.

Use of social media. If media can radicalize, it can also de-radicalize. Perception management.

Track 2 Diplomacy. Use of civil society.

Reform mainstream media as it takes very polarized views.

Proper handling of youth. Govt. should take transformational approach.

Army will have to take special steps to bring attitudinal changes among locals towards them.

Keep controversial issues on back burner.

Politically bold approach e.g. Create scope for Hurriyat Conference to enter into political mainstream.

Adequate steps to check cross border terrorism. Starve insurgency funds

Politicians, Security forces, Intellectuals, Media should be on similar footing.

Establish high level committees to address the grievances like the event of Kunan Poshpora village, Kupwada dist. It has been alleged that there has been rape of 100 women by security forces. Pathribal – 5 civilians were killed by branding them as militants.  Shopian tragedy rape of Kashmiri girls. Machil staged encounter. Bijbehra firing. Firing on peaceful protest. Govt. should address so that separatist should not be able to manipulate  the grievances of the people.