Article 370 Links India To J&K: KCSDS

Article 370 Links India To J&K: KCSDS

26 December 2013
Kashmir Observer


Srinagar: Kashmir Centre for Social and Development Studies (KCSDS) today held a Round Table Conference on (RTC) on Article 370, UN and Kashmir Resolution. Speaking on the occasion Chairperson Prof. Hameedah Nayeem said the agreed conclusions were that Article 370 was introduced in the Indian Constitution after the United Nations adopted 1948 and 1949 resolutions. The word 'temporary' to the said Article was prefixed with the view to facilitate governance of Jammu and Kashmir till the implementation of United Nations' resolutions on Kashmir were implemented. Second, application of Article 1 of Indian Constitution that defines the territory of the Indian Union is subservient to Article 370 in case of Jammu and Kashmir. In case Article 370 is abrogated, the link between India and Jammu and Kashmir will automatically cease. Third till the final resolution of Kashmir dispute, the Civil Society of Jammu and Kashmir will contest and oppose very strongly any attempt aimed at changing the demography of the state by eroding Article 370. “It was also emphasised that besides Article 370, Article 253 of the Indian Constitution recognizes Jammu and Kashmir as a territory whose final status was yet to be determined,” reads a KCSDS statement. Two leading lawyers Mian Abdul Qayoom and Advocate Zaffar A. Shah gave the key note addresses. The Round Table discussion revolved around severa key points including: 1) History of the word “Temporary” appearing before Article 370 with Special reference to international ramifications in view of India’s explicit promise to hold a plebiscite. 2) J&K only acceded to Union of India. It did not merge like other states again due to the fact that a referendum, as mandated by UN, was still to be held. 3) Though the state of J&K was allowed to have its own Constitution within the Indian Union, yet with every passing day & commensurate with strengthening of military occupation, new issues were created by India. The first such issue was that Sadr-i-Riyasat would not be elected one but appointed by the President Of India. The next issue was that State would not have its own fundamental rights but those specified in constitution of India would apply. 4) The Parliament’s Legislative Power was restricted to three subjects Defence, External Affairs and Communications. The President could extend to it other provisions of the Constitution to provide a constitutional framework if they related to the matters specified in the instrument of accession. For all this, only “Consultation” with the State Government was required since the State has already accepted them in 1947 by the instrument of Accession. 5) If other Constitutional Provisions and others Union power were to be extended to the State of Jammu and Kashmir, the prior “Concurrence” of the State Government was required. Even the concurrence alone did not suffice. It had to be ratified by the State’s constituent Assembly. 6) Another feature is that the State Government’s authority to give the “Concurrence” lasts only till the State Constituent Assembly is convened. It is an interim power. Once the constituent Assembly met, the State Government cannot give its own concurrence. Once the constituent Assembly met, the State Government cannot give its own concurrence. Still less, after the assembly met and dispersed. 7) The last feature is the Art 370 (3) empowers the President to make an order abrogating or amending it. But for this also “ the recommendation” of the State’s Constituent Assembly “ shall be necessary before the President issues such a notification”. 8) Art. 370 cannot be abrogated or amended by recourse to the amending provisions of the constitution which apply to all the others states because Art 368 have a proviso, which says that no constitutional amendment shall have effect in relations to the State of Jammu and Kashmir unless applied by order of the President under Art 370 and that requires first the concurrence of the State Government and subsequent ratification by its constituency Assembly. The agreed conclusions were; 1. Article 370 was introduced in the Indian Constitution after the United Nations adopted 1948 and 1949 resolutions. The word 'temporary' to the said Article was prefixed with the view to facilitate governance of Jammu and Kashmir till the implementation of United Nations' resolutions on Kashmir is carried out. 2.Application of Article 1 of Indian Constitution that defines the territory of the Indian union is subservient to Article 370 in case of Jammu and Kashmir. In case Article 370 is abrogated, the link between India and Jammu and Kashmir will automatically cease to be applicable to Jammu and Kashmir. 3.Till the final resolution of Kashmir dispute, the Civil Society of Jammu and Kashmir will contest and oppose very strongly any attempt aimed at changing the demography of the state by eroding Article 370. 4.It was also emphasised that besides Article 370,Article 253 of the Indian Constitution recognizes Jammu and Kashmir as a territory whose final status is yet to be determined.