Article 370: Claims of Abrogation by BJP & Cries for Restoration by PAGD (New Depths of Political Prostitution): Lalit k kaul

Article 370: Claims of Abrogation by BJP & Cries for Restoration by PAGD

(New Depths of Political Prostitution)

The BJP government exhumed the skeleton of buried horse-Article 370- and brought it to life like Allah, in Al Quran, has the ability to reconstruct humans on the ‘Day of Judgement’ even while no bones remained in the graves and the ashes of “dis-believers” were immersed/dissolved in rivers!

BJP attributed armed insurgency in J&K by Muslims inspired by Islam’s Ideology to Article 370. And laying all the blame for it at the door step of Nehruji because according to BJP and its Social media experts Nehruji gifted Article 370 to Sheikh Abdullah because 1) they were friends and 2)  Nehruji was pro-Muslim. Further the claim that was made was “had Sardar Patel been the PM, Kashmir problem wouldn’t have been there”!

But in ‘Sardar Patel’s Correspondence, 1945-1950, Vol1’, it’s documented on page 86 as “ Jammu and Kashmir thus became an integral part of India in October 1947, and in their capacity as Indian nationals, the representatives of the State took part in the deliberations of the Constituent Assembly of India (CAI). The Constitution framed by the Assembly conferred a special status on the State and gave it the right to frame its own constitution”.

Sardar Patel was as equal a member of CAI as Nehruji while Dr. Rajendra Prasad was its President. Shyama Prasad Mookerjee too was its member (elected from Bengal in 1946)! Isn’t it interesting that Shyama Prasad Mookerjee didn’t resign from the Constituent Assembly of India, but resigned from Union Cabinet in April 1950!

Let’s trace down the history of how slow but sure burial of Article 370 took place, beginning with Indian Constitution as applicable to J&K Constitution (1950).

Reference: Orders Issued under the Constitution of India, Part I

Features of Indian Constitution as Applicable to J&K Constitution (1950)

No writ of SC and CAG; No representations in the Parliament (LS & RS); No jurisdiction of the Parliament to 1) make any law with respect to any matter not enumerated in the Concurrent List or State List, 2) legislate with respect to a matter in the State List in the national interest, 4) legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation and 5) law made by the Parliament shall not prevail over the law made by the Legislature on the same matter.

No jurisdiction for 1) adjudication of disputes relating to waters, of inter-State rivers or river valleys, 2) resolution of inter-state disputes, 3) making laws for duties, tax collection, surcharges, trade and commerce, succession to property, and 4) preventive detention, etcetera.

Maintaining their own armed forces under the watch of the Union. No provision for Parliamentary and Assembly elections. No obligation for the state to follow valid directions given by the Union government; no provision for President’s rule. Constitutional amendments only for matters related to defense, foreign affairs and communications. No participation in Presidential election. And, many more exemptions not listed here for want of space.

Amendments in J&K Constitution (1950) as brought in through Presidential Orders:

First Amendment 1952 Constitutional Order (C. O.) Number 39 dt. 20^th March 1952: It enabled nominees from J&K to be sent to the Indian Parliament, no participation in Parliamentary elections, though. Yet it was a first major step towards attaining full integration of the state with Indian Union.

Delhi Agreement dt: 24^th July 1952: Further integrated J&K with Indian Union as 1) citizens of J&K were recognized as Indian citizens, 2) the SC of India was granted limited jurisdiction in state, focusing on disputes between the union and the state, as well as cases involving fundamental rights that the J&K government agreed to recognize, 3) emergency powers under Article 352 of the Indian constitution could be extended to J&K only in the case of external aggression and 4) both the  Indian National Flag and the state flag of J&K were to be used in the state. The Indian flag was accorded the same status as in other parts of India.

Presidential C.O. Number 51 dt: 11^th Feb1956: It gave Parliament the sole power to manage and protect ancient historical monuments and archaeological sites in the state; regulation of mines and mineral development to the extent that’s expedient in public interest.

Presidential C.O. Number 55 dt: 6^th Jan1958: It modified the application of Articles 269 and 286 (relating to taxes on the sale or purchase of goods and inter-state commerce) and introduced adjustments to the Seventh Schedule of the Indian Constitution as applicable to J&K.

Presidential C.O. Number 56 dt: 15^th  Feb1958: Established jurisdiction of CAG over J&K; to submit audit reports on state government accounts to the state Governor (Sadar-i-Riyasat) and he, then, presents these reports to the state legislature.

Presidential C.O. Number 57 dt: 9^th  Feb1959: It allowed census to be undertaken by central government.

Presidential C.O. Number 60 dt: 26^th Jan 1960: Made applicable to J&K. It gives the Supreme Court the special power to grant special leave to appeal against any judgment, order, or sentence from any court or tribunal in the country. Power of Parliament to make laws for elections.

Presidential C.O. Number 66 dt: 26^th Sept 1963: Jurisdiction of CBI; preventive detention for reasons connected with defense, foreign affairs and security of India; inter-state migration and quarantine; constitution and organization of the High Court, etcetera; extension of the jurisdiction of High Court.

Presidential C.O. Number 71 dt: 21 Nov 1964: Art 356 (Provisions in case of failure of constitutional machinery in State) and Art 360 (Provisions as to financial emergency) made applicable.

Presidential C.O. Number 72 & 74 dt: 21 Nov 1965: Sadar-i-Riyasat changed to Governor and the chair of PM relegated to that of CM. The ‘sovereignty’ that Art 370 afforded to J&K ceased to be.

Presidential C.O. Number 75 1966: Inclusion of the state for Parliamentary elections. Six seats allocated for LS. Delimitation Commission Act 1962 made applicable. Earlier nominees replaced by elected representatives. Final nail in the coffin of the ‘sovereignty’ of J&K  which Article 370 afforded it.

Presidential C.O. Number 83/84 1968/69: Appeal to SC against a HC order related to Assembly elections related election petition. Accessibility to Grants in Aid from Consolidated fund of India.

Presidential C.O. Number 85 1969 : Parliament’s power to make any law w.r.t prevention of activities directed towards disrupting the sovereignty and territorial integrity of India; causing insult to Indian National Flag, National Anthem and Indian Constitution. Thus it further consolidated J&K state as integral part of Indian Union.

Presidential C.O. Number 90/91 1971 : Jurisdiction of RBI; Inter-state trade & commerce, etc. Article 368(2) made applicable which grants the Indian Parliament to amend the Constitution.

Presidential C.O. Number 100 1975 : President to declare a National Emergency when the security of India is threatened by war or armed rebellion, even while no request has come from the government of the J&K state.

Presidential C.O. Number 101 1975: No law made by state legislature related to the domain of Governor and Election Commission of India is implementable without the Presidential assent.

There are around 18 more amendments which are not listed here 1) for lack of space and 2) for the reason that the above listed amendments prove beyond debate that there was no ‘special status’ to be abrogated on Aug 5 2019.

Status Post Indira-Sheikh Accord 1975: In her letter dated Feb 12, 1975 to Sheikh Abdullah, Indira Gandhi writes, “I am aware of your views on the Centre–State relationship in respect of the State of Jammu and Kashmir. I have already explained to you that the clock cannot be put back and we have to take note of the realities of the situation”. What remained of ‘Article 370’ was that J&K retained exclusive residuary control over local issues such as social welfare, cultural issues, social security, personal laws, and procedural laws. Isn’t that similar to ‘State List’!

A Question to BJP and PAGD: Which Article 370 did BJP abrogate through an act of the Parliament? Which Article 370 PAGD demands to be restored? All along since accession of J&K to Indian Dominion, JKNC and JKCONG have been at the helm. All amendments were done with the approval of the Constituent Assembly of J&K until 1957 and thereafter the state government. Your leader S A S Geelani confirmed the role of  JKNC in making the Art 370 non-existent. So what are your protests all about?