The
Articles 370 and 35A in the Constitution of India are the Articles which compromise
India’s sovereignty, and have been nurturing separatism, subversion and
terrorism for several decades.
“Like all other princely
states which had joined India, Jammu and Kashmir too became the irrevocable
part of India because of Instrument of Accession signed by its ruler.”
It
is deplorable that Kashmir, the crown and the soul of India, an important
centre of Hindu heritage has been facing turmoil frequently all because of
Articles 370 and 35A.
Article
370 was inserted only as a ‘temporary provision’ in the Constitution in 1950
just 10 days before the constitution was adopted by Union of India, and Article
35A was inserted on May 14, 1954, by the Constitution (Application to Jammu and
Kashmir) Order, 1954 by the Presidential Notification issued under Clause (1)
of Article 370, (and without any legislation) in Appendix 1.
This
write up will explains the history and implications of Articles 370 and 35A,
and how to remove these Articles easily by issuing the Presidential
Notification under clause (3) of Article 370 which does not require any voting
in Parliament or any Constitutional amendment, whatsoever.
How
Article 370 was inserted:
Let
us understand how these Articles got inserted in the Indian Constitution.
As
per the Indian Independence Act, 1947 passed by the British Parliament, the
then British India was partitioned into India and Pakistan in 1947, and the
rulers of Princely States were given the option to join either India or
Pakistan (by signing the Instrument of Accession which was to be final and
irrevocable) or to remain independent.
Rulers
of over 562 Princely States opted to join India and signed the Instrument of
Accession. However, Maharaja Hari Singh Ji, the then Ruler of Jammu and
Kashmir, chose to remain independent. But overwhelmed by the sudden attack on
Kashmir by Pakistani Forces in October 1947, he signed the Instrument of
Accession on October 26, 1947, which was accepted by India on October 27, 1947.
It means the instrument of accession signed by Maharaja Hari Singh was exactly
the same as other 562 princely states signed where there was no mention of
Article 370. Hence, J&K became the integral part of India, because the
Ruler of J&K signed Instrument of Accession which is irrevocable.
After
Jammu and Kashmir ruler signed the Instrument of Accession, Pakistan’s attack
on Kashmir was repulsed by the Indian army. But while the Indian army was on
its way to get the Pakistan-occupied areas of Kashmir vacated, but then Prime
Minister Shri Jawahar Lal Nehru ordered the ceasefire; and took the matter to
United Nations. At the same time, like other states, J&K constituted its Constituent
Assembly, he got idea of Article 370. He
alongwith Gopal Krishna Iyengar and Sheikh Abdullah approached Dr. B R Ambedkar
to provide special Status for J&K. The insertion of article 370 was
rejected by all top leaders of Congress including the Chairman of Constitution
drafting committee. Dr. B.R. Ambedkar. Then comes article 370 so-called
‘temporary provision’, inserted in the Constitution.
Under
this “Temporary Provision” there is no mention of fundamental rights for
Kashmiris. Even the Governor of Jammu and Kashmir has no right to vote in Jammu
and Kashmir, if he is not a citizen of Jammu and Kashmir.
Insertion
of Article 35A
Article
35A was inserted by the Constitution (Application to Jammu and Kashmir) Order,
1954 dated May 14, 1954, by a Presidential Notification issued under Article
370. This Notification was added as Appendix 1 to the Constitution of India.
The
Constitutional (Application to Jammu and Kashmir) Order, 1954 describes many
exceptions and modifications with which the Constitution of India applies to
the State of Jammu and Kashmir. Section 35A is only one of such exceptions and
modifications. Article 35A empowers Jammu and Kashmir legislature to define
‘permanent residents’ of the state. Only permanent residents are eligible for
special rights and privileges.
Because
of Article 35A, only ‘Permanent Residents’ of the State have the right to vote
for Jammu and Kashmir assembly, right to acquire immovable property in Jammu
and Kashmir, right to settle in Jammu and Kashmir, right to employment under
the State government and right to scholarship and right to receive aid from
State government.
Separate
Constitution, separate Flag and dual citizenship
Articles
370 and 35A have created vicious problems some of which are as follows:
While
the Instrument of Accession signed by its ruler Maharaja Hari Singh Ji on
October 26, 1947, irrevocably links Jammu and Kashmir with the rest of India,
these Articles weaken this link.
Though
Preamble of Indian Constitution guarantees to all Indian citizens “Justice”,
“Liberty”, “Equality”, and “Fraternity”, Articles 370 and 35A violate every
such guarantee.
The
root of all problems in Kashmir is the presence of these Articles in the
Constitution of India. These Articles have nurtured communalism, separatism,
subversion and terrorism in Kashmir; and are also responsible for driving out
lakhs of Hindus from Kashmir.
Articles
370 and 35A are discriminatory provisions which give special rights to Indian
citizens of Jammu and Kashmir but discriminate against Indian citizens of rest
of India. Besides, Indian Citizens of Jammu and Kashmir can acquire property
and settle in the rest of India but Indian citizens of the rest of India cannot
acquire property and settle in Jammu and Kashmir.
These
provisions violate the concepts of secularism and nationalism.
These
Articles deprive Indian citizens in the rest of India of their Fundamental
Rights stipulated in Article 14 (right to equality) and Article 19 (right to
freedom).
Because
of Article 370, Jammu and Kashmir have its separate constitution and its
separate flag. In Jammu and Kashmir, national flag must be hoisted with the
state flag.
Indian
citizens in Jammu and Kashmir have dual citizenship: one of India and the other
of Jammu and Kashmir. But citizens of the rest of India cannot be citizens of
Jammu and Kashmir.
Even
the Governor of Jammu and Kashmir, if he is not a citizen of Jammu and Kashmir,
has no right to vote in Jammu and Kashmir.
Because
of these provisions, even the President or Prime Minister of India, if he is
not a permanent resident of Jammu and Kashmir, cannot purchase any immovable
property in Jammu and Kashmir. Moreover, though any person from Jammu and
Kashmir can settle anywhere else in India, no person from rest of the country
can settle in Jammu and Kashmir.
Moreover,
these Articles curtail Indian Parliament’s sovereign powers over Jammu and
Kashmir in many matters.
Deletion
of these Articles would mean one nation, one citizenship, one flag and one
constitution for entire India including Jammu and Kashmir for which patriots
like Dr. Shyama Prasad Mukherji lived and died
How to repeal these Articles?
Article
370 can be repealed easily by the Presidential Notification under clause (3) of
Article 370. And the said Notification can be issued on the basis of the
Government Resolution, also known as Cabinet Resolution, and does not require
any voting in Parliament or any Constitutional amendment, whatsoever.
It
is relevant to reproduce here Clause (3) of Article 370 as follows:
“370.
Temporary provisions with respect to the State of Jammu and Kashmir
1.
Article
370(1) in The Constitution Of India 1949
2.
Article
370(2) in The Constitution Of India 1949
3.
Notwithstanding
anything in the foregoing provisions of this Article, the President may, by
public notification, declare that this Article shall cease to be operative.
It
is relevant to note that proviso to Clause (3) of Article 370 requiring the
recommendation of the Constituent Assembly of Jammu and Kashmir before the
issue of Presidential Notification has become redundant and unnecessary
because, on January 25, 1957, the Constituent Assembly of Jammu and Kashmir had
been dissolved. Since no such Constituent Assembly exists now, restriction
mentioned in Clause (3) cannot operate.
Along
with the abolition of Article 370, the above-described Constitution
(Application to Jammu and Kashmir) Order, 1954 dated May 14, 1954, which also
contains Article 35A, and which was issued by a Presidential Notification under
Article 370 should also be abolished by the Presidential Notification under
Clause (3) of article 370.
What must BJP do?
Articles
370 and 35A are monumental symbols of national ineptitude and slavery of fake
secularism.
After
getting power in 2014, BJP has done nothing to fulfil its perpetual promises
regarding “justice to all and appeasement of none”, Uniform Civil Code, the
abolition of Article 370, rehabilitation of Kashmiri Hindus in Kashmir, same
rights and same laws for all Indian citizens irrespective of their religion
etc. etc.
Even
in the remaining few weeks of its tenure, BJP government can regain its
credibility by honouring at least one of its core promises by immediately
abolishing the patently unjust, perverse, discriminatory and self-destructive
Articles 370 and 35A.
Deletion
of these Articles would mean one nation, one citizenship, one flag and one
constitution for entire India including Jammu and Kashmir for which patriots
like Dr. Shyama Prasad Mukherji lived and died.
And
this deletion would start liberation of India from the slavery of
pseudo-secularism.
