This story talks about the recent siege over the state of Jammu and Kashmir by Indian Government by abrogating Article 370 which guaranteed special status to the state of Jammu And Kashmir.
The note discusses the following five points
- Overview On Kashmir Siege
- Supreme Court hearing on Article 370
- Article 370 and 35A
- Not only Kashmir these states also has special status
- Dr. Ambedkar views on Kashmir
Overview On Kashmir Siege
The Indian Government started mobilizing military force in Kashmir from the beginning of August. And after two days of heightened security in the state Modi led Bhartiya Janta Party government repealed Article 370 of the Constitution of India, which grants special status to the restive state of Jammu & Kashmir. This law gave J&K autonomy over its affairs, except in foreign affairs, defence, and communication.
Addressing parliament on August 5, home minister Amit Shah announced that Article 370 would no longer exist. President of India, Ram Nath Kovind, has signed this notification. Shah’s announcement was met with loud protests from opposition parties.
Parties like Bahujan Samaaj Party, Aam Admi Party, YSR Congress, Shiv Sena and Telgu Desam Party sided with the ruling government. Indian National Congress, People Democratic Party, National Conference, Janta Dal United, DMK, Rashtriya Janta Dal, Left and Trinamool Congress and National Congress Party joined opposition force to oppose the move of India Government.
Supreme Court hearing on Article 370
After almost a month of Kashmir siege, Supreme Court on 28th August heard a total 14 PILs regarding Jammu and Kashmir. The 14 PILs on Article 370, restrictions in the Valley were listed for hearing before a bench of CJI Ranjan Gogoi, Justices SA Bobde and S Abdul Nazeer.
While hearing two of the petitions, the court issued two notices to the Centre. In one of the notices, the CJI Gogoi-led bench has said all petitions on Article 370 will be taken up by a 5-judge Supreme Court bench in October.
In another petition, the court asked the Centre to reply within 7 days about the ongoing restrictions that have been imposed on the press in the Valley.
Sitaram Yechury, Anuradha Bhasin and Shah Faesal were among the 14 petitioners.
There were mostly four types of petitions filed in the court, which are petitions seeking access to missing and unreachable people in the Valley; petitions on the restrictions in the Kashmir Valley and the abrogation of Article 370 and the fourth kind against anti-India elements trying to instigate trouble in Jammu and Kashmir.
Responding to Yechury’s petition, CJI Ranjan Gogoi said the Centre cannot stop any citizen from going anywhere in the country. The court allowed CPIM member to visit the state after Indian government restricted him and several other politicians.
However, the Supreme Court has directed that no politicians can hold any political meetings in the state of Jammu And Kashmir.
Points From The Day of Hearing
- Government cannot stop any citizens to travel any part of the country
- The Apex Court barred politicians from holding any political meeting during their visit
- Nine PILs have been filed challenging the Parliament’s decision to abrogate Article 370 by amending the definition of Article 368 of the Constitution and allowing Constitution and other laws of India to be applicable in J&K. Pleas have also challenged the J&K Reorganisation Act.
- Delhi based Lawyer Manohar Sharma in his petition called the abrogation of Article 370 is unconstitutional and it has violated the principle of Justice
- Shah Faesal and other in their petition said, the change in the relationship between India and the state of J&K could not have been made without consenting the people of Kashmir.
- Fundamental rights are scrapped and the Democratic principle have been violated
- Muzaffar Khan, who is a retired judge and now a social worker challenged the government decision, he said the Centre government could not have passed the amendment without consulting elected representatives.
- The Governor cannot be substituted for elected representatives.
- Two petitions have been filed regarding the communications lockdown
- Petition filed by Kashmir Times editor Anuradha Bhasin was heard. She challenged the government decision on restricting the Press Freedom which violated the fundamental Rights
- Pro government petition filed by Vineet Dhanda, was also heard in which petitioner argued people are creating a violated atmosphere and provoking trouble in J&K and this should be stopped
What is Article 370 and 35A?
Article 370 grants an autonomous status to J&K, while Article 35A, incorporated into the Constitution in 1954, and provides special rights and privileges to the citizens of the state
In October 1947, the then-Maharaja Hari Singh of Kashmir signed the ‘Instrument of Accession’, which specified three subjects on which Jammu and Kashmir would transfer its powers to the government of India: 1. Foreign affairs, 2. Defence and 3. Communications. In March 1948, the Maharaja appointed an interim government in the state, with Sheikh Abdullah as the prime minister. In July 1949, Sheikh Abdullah and three other colleagues joined the Indian Constituent Assembly and negotiated the special status of J&K, leading to the adoption of Article 370. The controversial provision was drafted by Sheikh Abdullah.
Article 370 was brought in effect in year 1949 which gave Jammu and Kashmir a special status. It allowed the region to have its own constitution which also exempts the state from the Indian Constitution.
The state was granted with the power to make its own laws in all areas except in the area of finance, defence, foreign affairs and Communications. The article permitted state to have its own flag as well.
With separate constitution and flag, the citizen of Jammu and Kashmir granted with the power to have exclusive rights over the properties in the state and the citizens were exempted from following the laws of Indian Constitution.
Article 370 was the basis of Jammu and Kashmir’s accession to the Indian union at a time when erstwhile princely states had the choice to join either India or Pakistan after their independence from the British rule in 1947.
The Article 35A was introduced later in 1954 through a presidential order to continue the old provisions of Jammu and Kashmir under Article 370 of the Indian.
The Article forbids citizens of other than Jammu and Kashmir from buying lands, holding government jobs or accessing any education scholarship. The article also stops citizen of any other Indian state to settle permanently.
The article, referred to as the Permanent Residents Law, also bars female residents of Jammu and Kashmir from property rights in the event that they marry a person from outside the state. The provision also extends to such women’s children.
While Article 35A has remained unchanged, some aspects of Article 370 have been diluted over the decades. Critics of Article 35A say the provision did not have any parliamentary sanction, and that it discriminates against women.
Not only Kashmir these states also has special status
Apart from Jammu and Kashmir, special provisions have been provided to some other states under the Constitution of India, listed in Articles 371 and 371(A-J). While Articles 370 and 371 have been a part of the Constitution since January 26, 1950, Articles 371(A-J) were incorporated through amendments under Article 368, which lays down the power of the Parliament to amend the Constitution and procedure therefor.
Article 371A – Nagaland
Article 371A of the Constitution mainly states that no act of Parliament would apply to the state of Nagaland in matter relating to religious or social practices of Nagas, Naga customary law and procedure, administration of civil or criminal justice involving decisions according to Naga customary law and ownership and transfer of land and its resources. The Legislative Assembly of Nagaland must pass a resolution for an act to be applicable to the state.
The governor is given special responsibilities with respect to law and order in the state as well.
Article 371B – Assam
According to the special provision under Article 371B, the president may provide for the Constitution and functions of a committee of Legislative Assembly of the state consisting of members elected from the tribal areas of Assam.
Article 371C – Manipur
The special provision under Article 371C in the case of Manipur is similar to 371B for Assam. Here, too, the president may provide for the Constitution and functions of a committee of Legislative Assembly of the state, but consisting of members elected from the hill areas of Manipur.
The governor must submit an annual report to the president regarding the administration of hill areas as well.
Article 371E states that the Parliament may by law provide for the establishment of a University in Andhra Pradesh.
Article 371F – Sikkim
Article 371F was incorporated into the Constitution in 1975. It states that the Legislative Assembly shall consist of not less than 30 members. In order to protect the rights and interests of the different sections of the population in the state of Sikkim, seats in the assembly are provided to people of these different sections.
Article 371G – Mizoram
The Legislative Assembly of the state of Mizoram must consist of not less than 40 members. In addition, following the same provisions as Nagaland, an act of Parliament would not apply to Mizoram in matters relating to religious or social practices of Mizo, Mizo customary law and procedure, administration of civil or criminal justice involving decisions according to Mizo customary law, ownership and transfer of land and its resources.
Article 371H – Arunachal Pradesh
The governor has special powers on the state’s law and order situation and can overrule the chief minister’s decision on the basis of this provision
Article 371I – Goa
The Legislative Assembly of the state of Goa must consist of not less than 30 members.
Article 371J grants special status to six backward districts of Hyderabad-Karnataka region. The special provision requires that a separate development board be established for these regions (similar to Maharashtra and Gujarat) and also ensures local reservation in education and government jobs.
Article 371 – Maharashtra and Gujarat
Governors of the states of Maharashtra and Gujarat are given special responsibilities to set up development boards in regions such as Vidarbha, Marathwada, Kutchh etc.
Article 371D & E – Andhra Pradesh
Article 371D, which was added to the Constitution in 1974, provides equitable opportunities and facilities for the people of the state and safeguards their rights in matters of employment and education. The state government may organise civil posts or direct recruitment to posts in local cadre as required.
Dr. Ambedkar views on Kashmir
When Indian Government was sieging the Kashmir, the right online army started a propaganda which claims Dr. B.R. Ambedkar refused to draft Article 370.
Scholars who have studied Dr. Ambedkar’s works have stated time and again that there is no evidence to support this claim, and that it is a sinister rumour generated by right-wing mouthpieces.
Dr. Ambedkar in his letter of resignation as cabinet minister, dated October 10, 1951 (BAWS Vol. 14, Part Two, Section IV), he had staunchly supported a plebiscite because he believed that Kashmiri must be the sole decision-makers of their fate. He writes,
“Our quarrel with Pakistan is a part of our foreign policy about which I feel deeply dissatisfied. There are two grounds which have disturbed our relations with Pakistan—one is Kashmir and the other is the condition of our people in East Bengal. I felt that we should be more deeply concerned with East Bengal where the condition of our people seems from all the newspapers intolerable than with Kashmir. Notwithstanding this we have been staking our all on the Kashmir issue. Even then I feel that we have been fighting on an unreal issue. The issue on which we are fighting most of the time is, who is right and who is in the wrong. The real issue to my mind is not who is right but what is right. Taking that to be the main question, my view has always been that the right solution is to partition Kashmir. Give the Hindu and Buddhist part to India and the Muslim part to Pakistan as we did in the case of India. We are really not concerned with the Muslim part of Kashmir. It is a matter between the Muslims of Kashmir and Pakistan. They may decide the issue as they like. Or if you like, divide it into three parts; the Cease-fire zone, the Valley and the Jammu-Ladhak Region and have a plebiscite only in the Valley. What I am afraid of is that in the proposed plebiscite, which is to be an overall plebiscite, the Hindus and Buddhists of Kashmir are likely to be dragged into Pakistan against their wishes and we may have to face the same problems as we are facing today in East Bengal.”
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