APPSC
GROUP 1 MAINS
Article 370 was de-operationalised; it was not abbrigated. Using the sub clause
of article 370, government of India made Article 370 de-operationalised. On the
recommendation of constituent assembly of Jammu and Kashmir article 370 can be
deoperationalised. President of India by public notification declare article
370 shall cease to be operate or Shall be operative only with such
exceptions and modifications and from such date as he may be specify.
Is article 370 can be removed?
It
is a long debate. some debate that article 370 is included in the constitution
under the temporary and special provisions, therefore it is a temporary
provision. In 1959, 1969 and 2018 supreme Court of India said that article 370
has acquired permanency, so some other debate that it has acquired permanency.
Why
did apex court called it permanent provision? On the recommendation of the
constituent assembly of Jammu and Kashmir president of India by public
notification makes article 370 cease to operate. The Jammu Kashmir constituent
assembly dissolved without any position on Article 370. So there is no jammu
and Kashmir constituent assembly then there is no question of recommendation of
the constituent assembly of Jammu and Kashmir. This is the precise legal
vire for the earlier view point. Though this provision is under chapter of
temporary provision it has acquired permanency.
What government has
done
Government
of India does not dropped the article 370 it still exists in the constitution,
but it has become a provision that ceases to operate. Using the power of
interpretation of the constitution under article 367 the jammu & Kashmir
state assembly is interpreted as Jammu & Kashmir constituent assembly
because later is not existed. if State assembly does not exists then Governor
acts as the representative of state assembly.
`Article 35A was inserted to constitution of
India in appendix. It defines the permanent residence and permanent resident has
alone had the right to education scholarship employment and right to own land
in jammu and Kashmir. Once article 370 ceases to operate then article 35A also
nullified. It was essentially made to prevent to strike down by the supreme
court. Technically article 370 can be revoked anytime.
The Article 3 of constitution of India empowers parliament with the power to alter boundaries of States, alter constitutional status of any state in India with simple majority. In Pradeep Chaudhary, mangaldeep and Mullaperiyar case supreme Court of India said that ‘india is Union of States it is not Federation of States’. States have not joined Union of India with prior agreement, states are carved out of the union. Fundamental difference between Indian Federation and American Federation is there is only one constitution one set off laws, single citizenship which are applicable to entire country with some variations and exceptions.
Jammu and Kashmir is no longer a state. Never in the history of India where a state is reduced to Union Territory there is instances where union territories or upgraded to States. using the Article 3 the Parliament reduced the statehood of Jammu and Kashmir to Union Territory. Jammu and Kashmir state is bifurcated into Jammu and Kashmir and Ladakh union territories with Jammu and Kashmir having legislature and Ladakh without legislature. According to the provision of Article 3 of constitution of India the Parliament while dealing with the boundaries of the state, the parliament is bound to the views of the state legislature but the views are not mandatory, the process of consultation is mandatory. The assembly of Jammu and Kashmir dissolved not existed. When a assembly is dissolved Parliament automatically discharges the legislative powers of an assembly.
“Faisal
Mustafa vice chancellor of NALSAR and constitutional expert says that there is
a difference between discharging responsibility and expression of view”. How
can the people of other parts of the country express the views on behalf of
jammu and Kashmir, So expression of views of different.
What is the argument
of Government of India?
why
should Jammu and Kashmir have special status while other states does not have.
There is rampant poverty, constitutional rights of the dalits and other
vulnerable has not observed. Kashmir failed to attract investment.
Article
370 has done more lost to Jammu and Kashmir. Article 370 and 35A prevented full
integration of Jammu and Kashmir into India. Separatist forces, terrorist
have misused the special status of Jammu and Kashmir. Using the special status
conferred on Jammu and Kashmir Pakistan tell the world that Jammu and Kashmir
is a disputed territory.
When
Government of India spend taxpayers money, why would people of India has no
rights in Jammu and Kashmir. Terrorism can be effectively fought when only Jammu
and Kashmir become fully part of India.
Article
370 empowers the President of India to extend any constitutional provision to
the Jammu and Kashmir or any Parliament act to Jammu and Kashmir. President of
India has issuing orders ever since 1950, most of the parliament acts
automatically applicable to Jammu and Kashmir including GST. Right to Education
etc. Article 370 is an Empty shell, it actually has no longer any theme.
The
central government assured the nation that the special constitutional provision
as many as 10 states have under Article 371 will remain. Article 370 gives
special existence to Jammu and Kashmir therefore it made de-operationalised and
other provisions for unaffected.
Criticism
Jammu
and Kashmir have never had problem of terrorism in 1950's and 1960's, when the
state enjoyed reasonably high degree of autonomy what exist today. When Article
370 got diluted sense of alienation wash exploited by separatists and the
terrorists. Critics argue that separatism, terrorism grown due to growing sense
of alienation. There should be autonomy for Jammu and Kashmir within the
constitution of India. The Assurance on which Jammu and Kashmir was acceded to
India.
In
1950 Jammu and Kashmir has 77 percentage of Muslim population. The Muslim
majority Jammu and Kashmir voluntarily joined the secular India revoking the
claims of Pakistan that the muslim majority jammu and Kashmir should be the
part of it. The argument of critics is that Muslim majority jammu and Kashmir
consciously choose to be a part of secular India. For that secular India has
promised special status. Now denial of special status to Jammu and Kashmir
leads to further alienation of Jammu and Kashmir from India.
Conclusion
1.
Kashmir’s accession to India is complete, final and
irreversible. India has neither occupied Kashmir nor forcibly taken it into
India. The people of muslim majority Jammu and Kashmir voluntarily chose to be
part of India.
2.
Kashmir is an integral part of India. No force on earth can
take away Jammu and Kashmir from India.
3.
The only unfinished agenda in Kashmir is that the
Pak-occupied parts of Kashmir should be integrated with the Indian mainland.
4.
India does not agree to any third party mediation or international mediation in Kashmir. At best India can bilaterally discuss
the issue with Pakistan in the spirit of Shimla and Lahore agreements.
5.
Pakistan's chest thumping is absolute hypocrisy. The country
that exports terrorism to its neighbours cannot fool the world by repeatedly
talking about situation in Kashmir.
6.
Plebiscite or a referendum cannot be a solution to the
Kashmir issue as the situation is completely altered since the United Nation
resolution. In fact, UN resolution on Kashmir is not mandatory, but only suggestive
as clarified by its secretary general in the past.
7.
Article 370 defined the constitutional relationship between
Jammu and Kashmir and India. Kashmir acceded to India on the promise that the
democratic and secular India would protect its autonomy. Article 370 reflects
this constitutional commitment. Abrogation of article 370 belies this
commitment resulting in alienation among Kashmiris. The separatist in the
Kashmir valley and the terrorist from within and outside borders will further
exploit this alienation to strengthen anti Indian sentiment among ordinary
Kashmiris. In fact the history so far reveals that the dilution of this
autonomy has only strengthened forces hostile to India.
8.
Therefore, any real solution to Kashmir lies in restoring
autonomy within the contours of Indian constitution and within unity, integrity
and sovereignty of India.
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