Jammu & Kashmir: Constitutional issues - Revision history

Jyoti: /* Why 35A has always been controversial */

2021-06-17T11:35:40Z

‎Why 35A has always been controversial

Jyoti: /* What was Article 370 (till July 2019)? */

2021-02-10T17:00:58Z

‎What was Article 370 (till July 2019)?

Jyoti: /* What was Article 370 (till July 2019)? */

2021-02-09T09:19:14Z

‎What was Article 370 (till July 2019)?

Jyoti: /* Article 370 */

2021-02-09T09:17:20Z

‎Article 370

Jyoti: /* ‘How the government has the power to revoke Article 370’ */

2021-02-08T08:06:42Z

‎‘How the government has the power to revoke Article 370’

Jyoti: /* Article 370: history */

2021-02-08T08:04:51Z

‎Article 370: history

Jyoti: /* Article 35 A */

2021-02-08T06:20:46Z

‎Article 35 A

Jyoti: /* 2019, August: Art. 370 of India’s Constitution revoked; J&Kashmir bifurcated */

2021-02-08T06:09:33Z

‎2019, August: Art. 370 of India’s Constitution revoked; J&Kashmir bifurcated

Jyoti: /* 2019, August: Art. 370 of India’s Constitution revoked; J&Kashmir bifurcated */

2021-02-08T06:08:41Z

‎2019, August: Art. 370 of India’s Constitution revoked; J&Kashmir bifurcated

Jyoti: /* State Subject law */

2021-02-08T06:03:21Z

‎State Subject law

Show changes

← Older revision		Revision as of 11:35, 17 June 2021
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	• Kashmir’s entire political leadership is against the revocation of 35A because it fears that opening up the state to non-permanent residents can change the demography of the only Muslim majority state in India. However, in the last 70 years, the religious demography has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh can legally buy land and property in the Valley		• Kashmir’s entire political leadership is against the revocation of 35A because it fears that opening up the state to non-permanent residents can change the demography of the only Muslim majority state in India. However, in the last 70 years, the religious demography has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh can legally buy land and property in the Valley

		+	==1950- Aug 2019: President used Art 370 power six times ==
		+	[https://epaper.timesgroup.com/Olive/ODN/TimesOfIndia/shared/ShowArticle.aspx?doc=TOIDEL/2019/11/12&entity=Ar00509&sk=BB867213&mode=text Dhananjay Mahapatra, Nov 12, 2019: ''The Times of India'']
		+
		+	The Centre has told the Supreme Court the decision to scrap “special status” of J&K was Constitution-compliant and taken in the interest of India’s security. It has expressed surprise that the validity of the August 5 move has been questioned when six earlier instances of the use of Article 370(1) (d) while the assembly wasn’t in existence attracted no legal challenge.
		+
		+	In its affidavit responding to a bunch of petitions challenging the constitutional validity of the August 5 move, the Centre said the decision had been taken following the constitutionally-mandated process as the regime that had existed under Article 370 was “impeding full integration of erstwhile state of J&K with the rest of the country...”
		+
		+
		+	''' SC may take up pleas challenging Art 370 move '''
		+
		+	Addressing the issue of its use of Article 370(I) (d) without the concurrence of J&K assembly to do away with the “special status” for the strategically significant state, it has pointed out that the President had exercised the very same provision that was used on August 5 six times in the past, without anyone challenging such exercise of power.
		+
		+	In an affidavit responding to a batch of petitions challenging the constitutional validity of exercise of power under Article 370(1)
		+	(d) by the President to alter the status of erstwhile state of J&K as well as Parliament’s decision to divide the state into two Union Territories, the ministry said, “There had been three amendments till August 4, 2019 in Article 370, which were modified in the past in exercise of powers under Article 370(1)
		+	(d), from time to time.”
		+
		+	The petitions are pending adjudication before a bench headed by Justice N V Ramana and are likely to be taken up on November 14. The Centre said the first Presidential Order, under Article 370(1)(d), was passed on January 26, 1950. This was superseded and replaced by another Presidential Order in 1954, which in turn was amended on more than 50 occasions from time to time, it said.
		+
		+	The MHA said terrorism, militancy and separatism have seriously impeded overall economic development of the state despite large monetary support from the government of India.
		+
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	==The debate on altering it==		==The debate on altering it==

← Older revision		Revision as of 17:00, 10 February 2021
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	The notification issued by President Ram Nath Kovind abrogating Article 370 on Monday declared: in proviso to clause (3) of article 370 of this Constitution, the expression "Constituent Assembly of the State referred to in clause (2)" shall read "Legislative Assembly of the State".		The notification issued by President Ram Nath Kovind abrogating Article 370 on Monday declared: in proviso to clause (3) of article 370 of this Constitution, the expression "Constituent Assembly of the State referred to in clause (2)" shall read "Legislative Assembly of the State".
		+
		+	===What did J&K miss out on?===
		+	[https://epaper.timesgroup.com/Olive/ODN/TimesOfIndia/shared/ShowArticle.aspx?doc=TOIDEL%2F2019%2F08%2F09&entity=Ar02101&sk=69A8C16E&mode=text August 9, 2019: ''The Times of India'']
		+
		+	[[File: Central laws that didn’t apply to Jammu & Kashmir.jpg\|Central laws that didn’t apply to Jammu & Kashmir <br/> From: [https://epaper.timesgroup.com/Olive/ODN/TimesOfIndia/shared/ShowArticle.aspx?doc=TOIDEL%2F2019%2F08%2F09&entity=Ar02101&sk=69A8C16E&mode=text August 9, 2019: ''The Times of India'']\|frame\|500px]]
		+
		+
		+	''Patel dream realised, says PM, rejects Cong claim that he was party to 370''
		+
		+	New Delhi:
		+
		+	PM Modi rejected Congress’s claim that the country’s first home minister Sardar Vallabhbhai Patel was party to the decision to guarantee special status to J&K.
		+
		+	In his televised address to the nation, the PM described the legal evisceration of the contentious constitutional provision as fulfilment of the dream of Patel, B R Ambedkar and saffron stalwarts Syama Prasad Mookerjee and Atal Bihari Vajpayee along with crores of patriots.
		+
		+	The composition of the cast was a repudiation of the assertion Congress made about Patel’s support for Article 370 during the debate in Parliament, and was read as a reiteration of Sangh Parivar’s charge about first PM Jawaharlal Nehru being the author of special status for J&K.
		+
		+	Although Modi had issued a series of tweets in different languages to celebrate the government’s success in rendering Article 370 irrelevant and assuage the anxieties of the Valley, Thursday was the first instance when he publicly addressed the landmark change in detail.
		+
		+	During the two days when his government accomplished the crucial feat of securing Parliament’s support for the dream political project of legal evisceration of Article 370, he had kept himself in the background.
		+
		+	Although clearly the main driver of the historical decision, Modi let the spotlight remain almost exclusively on his colleague, home minister Amit Shah, the second most important factor behind the success. This restraint has been interpreted in political circles as a mark of appreciation for the energy Shah put into the project as well as a sign of him being secure of his position after the resounding victory which had turned into a referendum on him.
		+	The Pakistan-sponsored terrorism in the Kashmir Valley and its horrific manifestation in Pulwama as well as the retaliation by Indian Air Force dominated the elections. However, Modi made only couple of references to the security challenge, focusing instead on development in what was seen as an outreach to the Valley.

	[[Category:History\|J JAMMU & KASHMIR: CONSTITUTIONAL ISSUES		[[Category:History\|J JAMMU & KASHMIR: CONSTITUTIONAL ISSUES

@@ Line 1,479: / Line 1,479: @@
 =Article 370=
 ==What was Article 370 (till July 2019)?==
-[webcache.googleusercontent.com/search?q=cache:IDC_53qIqzwJ:www.ptinews.com/news/10759269_Explainer--Article-370-that-gave-special-powers-to-Jammu-and-Kashmir+&cd=6&hl=en&ct=clnk&gl=in   ''The Times of India'']
+[http://webcache.googleusercontent.com/search?q=cache:IDC_53qIqzwJ:www.ptinews.com/news/10759269_Explainer--Article-370-that-gave-special-powers-to-Jammu-and-Kashmir+&cd=6&hl=en&ct=clnk&gl=in   ''PTI'']
 The Article 370 of Indian Constitution had "temporary provisions with respect to the State of Jammu and Kashmir" which gave special powers to the state allowing it to have its own Constitution
@@ Line 1,524: / Line 1,525: @@
 The notification issued by President Ram Nath Kovind abrogating Article 370 on Monday declared: in proviso to clause (3) of article 370 of this Constitution, the expression "Constituent Assembly of the State referred to in clause (2)" shall read "Legislative Assembly of the State".
 == SC : only Parliament can take call on Article 370 ==

@@ Line 1,478: / Line 1,478: @@
 =Article 370=
 == SC : only Parliament can take call on Article 370 ==
 [http://www.dailyexcelsior.com/sc-says-only-parliament-can-take-call-on-article-370/ Neeraj Rohmetra , SC says only Parliament can take call on Article 370 "Daily Excelsior" 1/11/2015]
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-[[Category:India |A ]]
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 === Art 370 confers special status on J&K : DB ===
@@ Line 1,572: / Line 1,619: @@
 Appearing for J&K, senior advocate Rajeev Dhavan and additional advocate general M Shoeb Alam refuted the Centre’s claim that a similar petition was pending consideration before a bench headed by CJI Dipak Misra. Dhavan said the issue pending consideration related to validity of Article 35(c) of the Constitution and not Article 370.
 Mehta said the Centre would study the implication of the 2017 judgment, which was on the applicability of Sarfaesi Act (bank securitisation law) to J&K and come back to the court with its view. The SC granted the Centre three weeks to formulate its response.
 =State flag=

← Older revision		Revision as of 08:06, 8 February 2021
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	During his address to the Rajya Sabha, the home minister defended his decision to scrap the Article, saying that the previous governments, too, had amended Article 370. “This is not the first time, Congress in 1952 and 1962 amended Article 370 through similar process. So instead of protesting please let me speak and have a discussion, all your doubts and misunderstandings will be cleared, I am ready to answer all your questions,” Shah said.		During his address to the Rajya Sabha, the home minister defended his decision to scrap the Article, saying that the previous governments, too, had amended Article 370. “This is not the first time, Congress in 1952 and 1962 amended Article 370 through similar process. So instead of protesting please let me speak and have a discussion, all your doubts and misunderstandings will be cleared, I am ready to answer all your questions,” Shah said.
		+
		+	===How govt used Art 370 to remove special status===
		+	[https://epaper.timesgroup.com/Olive/ODN/TimesOfIndia/shared/ShowArticle.aspx?doc=TOIDEL%2F2019%2F08%2F06&entity=Ar01108&sk=1A196F6D&mode=text Rakesh Dwivedi, August 6, 2019: ''The Times of India'']
		+
		+
		+	'''How Modi govt cleverly used Art 370 to remove special status'''
		+
		+	FOR SOME IT’S A CORRECTION OF A HISTORICAL WRONG, OTHERS FEEL THE WAY THIS WAS DONE IS NOT RIGHT
		+
		+	Article 35A has been scrapped by supersession of the 1954 presidential order and by applying all the provisions of the Constitution to the state of J&K. Article 35A had protected laws of J&K regarding land, scholarships and jobs, favouring state subjects, and the laws could not be questioned on the ground that they violated fundamental rights of non-state subjects and citizens of India. However, this has been achieved by utilising Article 370 and not repealing it. This is an extremely significant politico-constitutional step long overdue and it leads to a fuller integration and assimilation of J&K-like other territories of India.
		+
		+	One can look at this either as a contradiction of the idea of Article 370 being made part of the Constitution in 1950 itself or as a culmination of a process of integration of J&K with India, which began with the Instrument of Accession and was followed by various presidential orders issued in 1954 and thereafter under Article 370. I think there is a continuity. Various presidential orders had diluted the special status of J&K to some extent. However, instead of deleting Article 35A and applying all provisions of the Constitution to J&K when Sadar-e-Riyasat was made governor and prime minister was made chief minister in the 1970s, the Congress governments resorted to talking to separatists, Hurriyat and others who were also tangoing with Pakistan to find a solution to terrorism.
		+	The Modi government has chosen to tread a different path and has used Article 370 to apply all provisions of the Constitution to J&K and superseding the 1954 presidential order which results in deletion of Article 35A. Thereby, Article 370 has become fully eroded, and the special status of J&K has eviscerated.
		+
		+	The criticism of some opposition parties including Congress that this is undemocratic and unconstitutional is simply overlooking what Nehru said in Parliament: “Article 370, as the House will remember, is a part of certain transitional provisional arrangements. It is not a permanent part of the Constitution. It is a part so long as it remains so. As a matter of fact, as the HM has pointed out, it has been eroded... I repeat that it is fully integrated... So we feel that this process of gradual erosion of Article 370 is going on. We should allow it to go on. That process is continuing.”
		+
		+	Then home minister Gulzari Lal Nanda said in Lok Sabha on December 4, 1964: “It is Article 370 which provides for the progressive application of the provisions of the Constitution to J&K, Article 370 is neither a wall nor a mountain, but that it is a tunnel. It is through this tunnel that a good deal of traffic has already passed and more will.”
		+
		+	Article 370 confers powers on the President to issue orders with the concurrence of the state government where subject matter is not covered by the Instrument of Accession. Here, the President has obtained the concurrence of the government of J&K. So the order is valid. In the past, the Congress government under Rajiv Gandhi had issued a presidential order with concurrence of the government through the governor of J&K.
		+
		+	An objection was taken that the presidential order amends the Constitution and that it is a serious unconstitutionality. Congress forgets that they added Article 35A to the Constitution by the 1954 presidential order. Were they amending the Constitution? Or is it that now it suits them to say so? Article 370 is a special provision which enables application of provisions of the Constitution with “such exceptions and modifications” as the President by order specifies.
		+
		+	Along with bifurcation of J&K into two UTs under Article 1 of the Constitution, central control over J&K would be complete. Parliament would get power to legislate over all matters subject to the legislative powers left to the J&K legislature — somewhat akin to Delhi. People of India would be able to exercise their fundamental rights in Part 3 of the Constitution in J&K also.
		+
		+	With the concept of state subject coming to an end, the people of J&K and rest of India stand on a par. This should foster equality and fraternity. We expect this political process to stabilise J&K, consolidate Ladakh and eventually lead to development of J&K. This would eliminate vested interests who were exploiting J&K unrest even while encouraging terrorists and separatists. J&K occupies a sensitive position as it is contiguous to China, Afghanistan, Russia and Pakistan. With withdrawal of the US from Afghanistan being worked out, the Modi government has acted with promptitude to consolidate and strengthen the Indian position in J&K.
		+
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	==Th complete text==		==Th complete text==

@@ Line 1,440: / Line 1,440: @@
 Raut said it would be wrong to blame Nehru and Patel for incorporating Article 370 into the Constitution. “Times were different, the situation and the country’s capabilities were different as well.... Nehru and Patel did what they then felt was proper for the country,” said Raut. Ally BJP, which has been closing in on Nehru for investing J&K with a special status, may find Raut’s article embarassing, said observers.
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+== How J&K’s special status was ‘diluted’ over the years==
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@@ Line 1,186: / Line 1,186: @@
 Fear that it would lead to further erosion of J&K's autonomy and trigger demographic change in Muslim majority valley. Political parties say Kashmir resolution lies in greater autonomy; separatists fan paranoia against possibility of Hindus 'flooding' the valley. However, in the last 70 years, demography of Kashmir Valley has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh have rights to buy property and settle in the Valley.
 ==The debate on altering it==
@@ Line 1,388: / Line 1,419: @@
 (The author is a practising advocate
 & a political and legal analyst)
 = Article 370: history=

@@ Line 1,647: / Line 1,647: @@
-[[File: Jammu & Kashmir: A timeline, July 27, 2019- August 5, 2019.jpg|Jammu & Kashmir- A timeline, July 27, 2019- August 5, 2019 <br/> From: [https://timesofindia.indiatimes.com/india/article-370-to-be-scrapped-jk-will-ceases-to-be-a-state-2-union-territories-created/articleshow/70531899.cms  August 5, 2019: ''The Times of India'']|frame|500px]]
+[[File: Jammu & Kashmir- A timeline, July 27, 2019- August 5, 2019.jpg|Jammu & Kashmir- A timeline, July 27, 2019- August 5, 2019 <br/> From: [https://timesofindia.indiatimes.com/india/article-370-to-be-scrapped-jk-will-ceases-to-be-a-state-2-union-territories-created/articleshow/70531899.cms  August 5, 2019: ''The Times of India'']|frame|500px]]
@@ Line 1,769: / Line 1,769: @@
 Celebrations broke out the Shiv Sena headquarters in Mumbai's Dadar area. Yuva Sena chief Aaditya Thackeray dubbing it as a "moment of pride" and a "historic day" for the country.
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 ==2019, August: Art. 370 of India’s Constitution revoked; J&Kashmir bifurcated==
 [https://timesofindia.indiatimes.com/india/article-370-to-be-scrapped-jk-will-ceases-to-be-a-state-2-union-territories-created/articleshow/70531899.cms  August 5, 2019: ''The Times of India'']
 [[File: Jammu & Kashmir: A timeline, July 27, 2019- August 5, 2019.jpg|Jammu & Kashmir- A timeline, July 27, 2019- August 5, 2019 <br/> From: [https://timesofindia.indiatimes.com/india/article-370-to-be-scrapped-jk-will-ceases-to-be-a-state-2-union-territories-created/articleshow/70531899.cms  August 5, 2019: ''The Times of India'']|frame|500px]]
 ''' Govt revokes Article 370 from Jammu and Kashmir, bifurcates state into two Union Territories '''
@@ Line 1,767: / Line 1,769: @@
 Celebrations broke out the Shiv Sena headquarters in Mumbai's Dadar area. Yuva Sena chief Aaditya Thackeray dubbing it as a "moment of pride" and a "historic day" for the country.
 ==The changes that this revocation will bring==